45 N.Y.S. 367 | N.Y. App. Div. | 1897
Lead Opinion
This action was brought to recover damages arising from the construction of defendant’s railroad bridge and embankment in the town of Horseheads, Chenango county, thereby causing an obstruction in the flow of. the Waters of Rewtown creek, and the flooding of plaintiff’s lands. The complaint alleged: “ That heretofore the Utica, Ithaca and Elmira Railroad Co. constructed its railroad through said town of Horseheads and across Hewtown ,creék, and the low lands situate on either side- thereof,, and. raised and Constructed an embankment for its roadbed through the said lands adjoining said creek on either side thereof, from .five to ten feet above- the natural -sur-face of the; soil, and across the. Creek constructed a wooden, bridge, having a space of about sixty feet, with a single row of piles to support' the center of said space, about the middle of said creek; that in or about March, 188.4, the defendant duly succeeded to' all the property, roadbeds, bridges and other appurtenances theretofore owned by said Utica, Ithaca and Elmira Railroad'Company and its successor or successors,'and took possession thereof, and had ever since been using and operating said railroad and appurtenances.”
' That In'the year 1885 the defendant rebuilt said bridge, and, in doing so, extended the abutments and placed six rows of piles under the saíne,, and thus narrowed and obstructed the channel so .that at times of . high water there was not sufficient space for its natural flow; that said bridge was negligently, unsldllfully and improperly constructed, and, together with the embankment above mentioned, caused large, quantities of wuter to: collect upon the land of plaintiff and others situate on the creek above the bridge, in time of high water.
The plaintiff sought to recover damages for the said flooding of his lands caused by said railroad bridge, which he averred was negligently and improperly constructed, and which flooding was increased by said embankment.
I think the complaint was not insufficient to allow the plaintiff to recover for damages caused by the embankment, because it failed to aver that such embankment was improperly, negligently or illegally constructed, if otherwise showing defendant’s liability therefor. The action being to recover for an alleged nuisance, it was not necessary, for the plaintiff to allege or show negligence on the part of the defendant or Its grantor in constructing the embankment. The action was not based upon negligence, but upon a wrongful and unauthorized act, in consequence of which the plaintiff, sustained damage. (Clifford v. Dam, 81 N. Y. 52; Lamming v. Galusha et al., 47 N. Y. St. Repr. 831; notes, 25 Abb. N. C. 198, 199.)
The statutory authority conferred upon the defendant or its grantor to construct the bridge and embankment gave it no right to obstruct the flow.of the water in Newtown creek and cause the same to flow back on plaintiff’s lands. (Mundy v. N. Y., L. E. & W. R. R. Co., 75 Hun, 479.) Hence, the complaint, averring such obstruction of the. flow of the water by the bridge and embankment, set forth a wrongful and unauthorized act on the part of the defendant and its grantors — the creating of a nuisance.
The principal question in the case, and the only one 1 deem it
One Rickey, a witness called by the defendant, testified that being . in the employ of the Utica, Ithaca and. Elmira Railroad Company, he located the. railroad at the place in question and had charge of its construction. The plaintiff then sought to prove that said- company, through said Rickey, constructed the embankment in question, and made the following offer: “ I propose to show by cross-examination of this witness that this railroad embankment,, running from the bridge in suit all the way to and across the canal, was■ constructed at the same time that the bridge was constructed, under the ■ supervision of this witness, while in tile-employ of the Utica, Ithaca
In Woodman et al. v. Tufts et al. (9 N. H. 88) it was held that, “ where a dam was erected, and land flowed by the grantor of an individual, the grantee will not be liable for damage in continuing the dam and flowing the land as before, except on notice of damage, and request to remove the nuisance or withdraw the water.”
In Johnson v. Lewis (13 Conn. 303, 307) it was said in the opinion of the court: “ Therefore, in Tomlin v. Fuller (1 Mod. 27), although the court were unanimously of opinion that an allegation of a request was in that case necessary, and that the declaration, without it, was bad on demurrer; yet, on motion in arrest, they gave judgment for the plaintiff, because the defect was cured by verdict. How far proof of knowledge of the injury resulting from a dam or
There being no averment in the complaint that the defendant had notice that the embankment caused .damage, and no proof on the trial of such notice, it was, of no consequence whether or not the embankment'was the property of the. defendant, and hence the plain- ■ tiff was .riot injured by the ruling of the trial judge above referred to. The plaintiff did, on the trial ¿ offer to show possession and use of the embankment by the defendant, but mere possession or use thereof, it not being obviously a nuisance, and having been erected many years before , by defendant’s grantor, and not having been changed or altered or interfered with by defendant, would, not, in the absence of notice that the embankment caused damage to the plaintiffj .or of a request to. remove if, make the defendant liable. Woodman v. Tufts, Johnson v. Lewis (supra) and Pillsbury v. Moore (44 Maine, 154) were cases where the defendant continued the
In the absence of notice, and under the circumstances shown in this case, it would be unreasonable and unjust to hold the defendant liable for the alleged nuisance. When it purchased it found a mound or embankment on its premises, placed there many years before by defendant’s grantors, and which, as far as appears, had remained ever since'without objection. As above suggested, it had the right to suppose that the construction of said embankment was authorized, and was not compelled to know that it injured the plaintiff.
For the reasons above suggested, as well.as in consideration of the statement of the plaintiff’s counsel, made when he was offering evidence to sustain his cause of action, viz., “ It is perfectly immaterial, in my view of the case, whether ihis defendant used that or whether it did not use it. That is not the gravamen of the action. The gravamen is that this bridge did not furnish sufficient water way, and, therefore, it turned and run over the plaintiff’s land. If the water had not been turned out of the channel by reason of the narrowness of the bridge' and its insufficiency, the plaintiff would not have been injured,” I think the trial court was justified in holding and in instructing the jury that the defendant was not responsible for damages caused by reason of the. embankment; that the case was to be determined as if the embankment had been a natural hill or elevation.
The plaintiff, in his complaint, did not intend to claim the defendant’s liability for damages caused by the embankment, as he failed to allege a state of facts which woxdd. have made it responsible therefor. The claim, on accountof the embankment, was evidently an afterthought occurring to him after he had rested, and while the defendant was offering its evidence, and when the testimony, proposed could have been properly excluded by the court for the reason that it was offered too late.
I have carefully examined the other exceptions by the appellant.
The judgment should be affirmed, with costs.
All concurred, except LANDONj, J., dissenting.
Dissenting Opinion
The bridge was an obstruction to the natural flow of the water, because it clogged up the bed-of the stream-with its seven.tiers of piling between the abutments. These piles were a standing notice to the defendant that it was. obstructing the natural flow of the stream. "Whether the old embankment of the railroad was a natu-. ral hill- ór a structure maintained by the defendant, it was a. standing notice to the defendant that when the stream was high .the-more dangerous .its bridge obstructions. Would become. The defendant had no right' to use its property to.the injury of the legal right- of - the plaintiff, and I think it did use it with notice that, it thereby risked doing in jury .to the plaintiff. (See opinion, Moody v. Village Saratoga Springs, post, p. 207.)
I advise reversal;
Judgment and order affirmed, with costs.