44 How. Pr. 30 | N.Y. Sup. Ct. | 1872
There was no error in the county court in allowing the amendment, to the extent that it was allowed, as it did not change the cause of action, or alter it in any particular. True, the complaint before the justice did, in terms, charge the defendant with breaking and entering the plaintiff’s close, but the facts which constituted the real cause of action were stated, and these showed that the injury was occasioned not .by breaking and entering,.but by opening a sluice in a highway and turning the waters in the ditch of said highway upon
The cause of action was plainly what would have been, formerly known as an action on the case, and it was tried as such, and no injury was done to the defendant by the amendment.
The question at issue, and which was tried, was, whether an overseer of highways has the right, in making repairs upon a highway within his district, in other respects suitable and proper, to change a natural watercourse, or the natural course of surface water drainage, so as to cast the water upon the lands of an owner abutting upon a highway. where it had not been previously accustomed to flow; or to increase considerably in volume and quantity, either the waters in a natural watercourse, or from surface drainage, flowing upon such land, to the injury of the owner thereof. We think it clear that the overseer has no such right, and hold the law so to be. This results, we think, from the nature of the right of the public in a highway. It is a mere right of passage over the soil; and although the public has the right to alter, shape and fashion its roadway, in such a manner as to render it convenient, safe and useful for the purposes of passage, still, abutting and adjoining lands, outside of the way, are not servient estates to this right of way, so as to authorize the public, through its officers, to change natural watercourses, or the natural course of surface waters in regard to such lauds, to the injury of the owners, with impunity.
The public must construct and repair their way with reference to the rights of adjoining owners of lauds. The defendant, in his answer, justified the acts complained of upon the ground that he was overseer of the highway, and that such acts were necessary for the benefit of the highway.
There was evidence in the case tending to- show, that prior to the time when the new sluice was made and the water turned down the south ditch of the east and west road,
He might, for this purpose, unquestionably restore the way as it was when the change was made in 1862, and the public to all the rights they then had which had not become forfeited. But if he undertook to restore, he should have restored the way in all respects to the condition it was'in at and prior to 1862, and the public to the rights it then had. He had no right to leave the sluice which would carry.off water from the ditch to his own land, closed, and open the sluice which would carry, the water that should rightfully pass to his own land upon the lands of his neighbor. This the jury have found he has done.
The court properly refused to charge as requested by the defendant. The substance of that request was, that the defendant had the right to make the change for the benefit of the road, if he acted in good faith, even if it had the effect to throw more water upon the plaintiff’s land than had ever been carried there before, of than would have gone there had the entire way been restored to its former condition. This proposition, as we have undertaken to show, cannot be maintained. It must be obvious to any one, that an overseer of highways cannot, by any act of his own, either confer any new rights upon the public, or impose any new burdens upon individuals to their injury. •
The judgment, we think, is right, and should be affirmed.
Johnson, Talcott and Barker, Justices.]