59 Barb. 56 | N.Y. Sup. Ct. | 1869
It is well to understand that the jury, by their verdict, have established certain facts which this court will not undertake to review. It must be taken as true that the defendant, in building the barrier against the crevasse, erected it on the same line, and of no more than an equal height with the original bank of the creek; that by such barrier the creek was restored to its original channel at that point. This, the jury were charged, the defendant had a right to do, and no exception is taken to that portion of the charge. In finding for the defendant they must necessarily have found those facts. One other fact in the case appears to have been-overlooked in their points. It is this. After the building of the barrier, the water followed its old channel till it
It was and is conceded that the defendant had a right to erect the barrier across the new channel made by the .flood, and thus protect his orchard and farm from serious injury. The defendant claims such right unconditionally. The plaintiff, on the other hand, insists that such right cannot be exercised without at the same time opening, and thereafter keeping open, the original bed of the creek, so far as it runs on his own land, and delivering the water to the plaintiff at his boundary, in its ordinary and accustomed channel.
I find no sanction for the claim thus set up by the plaintiff. Angell, on Water Courses, .(§ 333,) says: “A riparian proprietor may in fact legally erect any work in order to prevent his lands being overflowed by a"ny change of the natural state of the river, and to prevent the old course of the river from being altered;” citing Rex v. Trafford, (1 B. & Adol. 874, and 8 Bing. 204;) Farquharsen v. Farquharsen, (3 Bligh Parl. R., N. S., 421, 422.) But, says Angelí, (§ 334,) he “ has no right to build anything which,' intimes of ordinary flood,.will throw the waters on the grounds of another proprietor, so as to overflow and injure them. * * * Erslcine * * * says: ' When a river threatens an alteration of its present channel, to the dam
The owner of a water course may change its course on his own land, if he does not thereby injure his neighbor. “ So he may change it back to its original channel,” unless others, by expenditure of money, have acquired the right to its use in the new channel. (Wash. on Easements, 360, citing Woodbury v. Shut, 17 Verm. 387.)
It may fairly be inferred from the authorities cited, that the defendant had the right to erect this barrier, and thus confine the waters within their original channel. Hor is there any intimation that he is responsible for any damage to his neighbor, unless it is the direct consequence of his building his barrier too high, or projecting it into the stream so as to prevent the water running in its accustomed channel and with its usual force. He has the right to repair or rebuild the broken bank—not to make a different one. If he does this, no direct injury is done to his neighbor. The injury that may arise from a gravel bed lower down the stream is not due to the interposed barrier. It arises from an obstacle created by the natural flow of the stream. Had no crevasse been made, the gravel bank might, and doubtless would, have been deposited by the natural action of the stream. The crevasse having been opened and the barrier immediately interposed, it stands as though the defendant had done nothing, and yet the gravel bank is there doing the plaintiff damage.
Where the bank was broken so as to form a new channel for the water, it was optional with the defendant to close the opening and restore the water to its original
Again; if a party’s mill-dam is carried-off' by a flood which makes a gravel bar at a point below, changing the channel of the stream, may he not rebuild his dam unless he cuts away such bar and restores the water to its channel? Is he liable for the existence of the bar? Was it his act of omission or commission that put it there ? On the contrary, it is evident this obstruction is the work of nature, produced by natural causes, unaffected by man’s act, except remotely and accidentally. It does not furnish a cause of action. The interests to be affected, the responsibilities to be incurred and consequences involved by a contrary decision, are too momentous to be disregarded. The whole bed of the lower Mississippi is earth brought down and deposited by its waters. The lands upon its borders are protected by levees. Holland is rescued from the ocean by its dykes. Aré we to say that these dykes and levees may not be defended against destruction, lest by so doing they shall break away somewhere else? Must one man’s farm be destroyed that it may be useful to drain, the water from his neighbor’s ? Such was evidently the view of the law entertained by the plaintiff’s attorney when this action was brought. There is no allusion to a gravel bank placed there by .the defendant, which caused the damages, but it was “ logs, stones, earth and rubbish,” put by the defendant into said stream, and upon the banks thereof, opposite the land of the plaintiff which were claimed to be the cause of the damage. It is evident the actidn was brought upon the theory that the barrier had
The motion for a new trial should be denied, with costs, and judgment ordered for the defendant on the verdict.
Balcon, Boardman and Parker, Justices.]
This judgment was affirmed in the Court of Appeals in March 1871, but it is understood no opinion was written in the case.