93 N.Y.S. 579 | N.Y. App. Div. | 1905
The structure of the Few York and Brooklyn bridge passes at eighty feet above the building of the plaintiffs. A vertical line from the southerly side of the structure nearest the premises would fall twenty feet distant northerly therefrom. The plaintiffs allege that debris, and water from the roadway of the bridge come onto the premises. They complain of a continuous trespass, and sue for an injunction from such use and maintenance of the bridge as to
I do not believe that the defendant with immunity can sweep debris off the bridge so that when thus cast off into the currents of the air it falls upon the premises of the plaintiffs. One of the witnesses testifies that the debris drops upon the plaintiffs’ roof (< because the mail pushing a broom gives it a momentum and it naturally cants away the same direction, same as a bullet would, or anything.” There is other evidence to the same effect, and I cannot say that the finding of the Special Term that the acts are a direct trespass should be disturbed. (Lowery v. Erskine, 113 N.Y. 52.) It cannot be contended that, inasmuch as the premises are twenty feet distant from the land point of a vertical line dropped from the bridge, the currents of air which help to carry this debris onto plaintiffs’ premises are a superseding cause.' ( Webb v. R., W. & O R. R. Co., 49 N. Y. 420 ; Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S 469 ; Dunsbach v. Hollister, 49 Hun, 352, 355 ; affd., 132 N. Y. 602.)
The New York and Brooklyn bridge is a “ municipal work of the
The doctrine of Lynch's case, so far as it is applicable to the facts in the case at bar, is approved in Seifert v. City of Brooklyn (101 N. Y. 136, 142). In Carll v. Tillage of Northport (11 App. Div. 120) the court said : “ It is not disputed by defendant but that there has been an increased flow of water upon plaintiff’s premises by reason of the improvement. But its position is that such increase is slight, that the work was authorized and properly performed, and that, in making the improvement, it exercised a legal right possessed by it to change the grade of'the street, and, as no negligence is alleged in the character of the construction or in,the performance of the work, no cause of action is made out. The cases upon this subject are numerous and the law is well settled. It is the undoubted right of a municipal corporation to grade its streets or change the grade when it deems it necessary so to do, and property owners have no ground of complaint even though the consequence be that surface water is thrown upon the land or caused to .flow thereon in larger quantity than formerly, or is prevented from flowing therefrom and is collected thereon. But no right exists to collect a material body of water by diverting it from its natural flow, or by other means to gather it together, and when thus collected to conduct it by any artificial channel and discharge it in a body upon private property. We so held and applied the rule in a recent case. (McCarthy v. Village of Far Rockaway, 3 App.
But further, as we have seen, the city is not bound to collect surface water which falls upon a highway, and to lead it into a sewer. (Lynch v. Mayor, supra) Again, while the city could not plead the quasi-judicial character of the plan and construction of the bridge as to acts within the rule laid down in Seifert's Case or Huffmire's Case (supra), I think that it may do so, so far as the question of the disposal of the surface water, presented by this record, is concerned. (Paine v. Village of Delhi, 116 N. Y. 224, and the distinction drawn in Seifert's Case, supra. See, too, Wilson v. Mayor, etc., of New York, 1 Den. 595.) I do not overlook the fact that the surface water on this highway may be more exposed to winds than if it existed on a surface street, but that is a matter of degree.
Thus there seems on the record to be a distinction drawn between debris which is swept off the bridge by the defendant, and the surface water “ which will blow there when the wind is in the right direction ” — a result not shown by the proof as due to any action of the defendant in the administration of the bridge. It may be that there has been an increased flow by reason of the structure, but this alone is not sufficient, as we held in Carll v. Village of Northport (supra). There is no proof that the construction of the fabric is such as necessarily to collect the water into an artificial channel, ' whence it fell or flowed or was discharged onto the premises. The principle of judicial notice is not involved. (See Town of North Hempstead v. Gregory, 53 App. Div. 350.)
As. the present proof is not sufficient to cast liability on the . defendant for the surface water, and as the damages are evidently
Hirschbérg, P. J„ Woodward and Hooker, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final áward of hosts.
5th ed. or 6th ed.— [Rep. ■