4 N.Y.S. 745 | N.Y. Sup. Ct. | 1889
This is an action to restrain the defendants from discharging the contents of a sewer into a natural stream, which, after receiving such contents, passes through plaintiffs’ land. There seems to be no dispute that the sewer does so discharge its contents, and that the result is injurious to plaintiffs’ land. The defendant insists that the sewei is not a public sewer; does not belong to defendant; and that defendant is not responsible for its construction or for the consequent damages. The sewer runs through Lawrence and Harrison streets to Division; thence through private grounds to Walworth, in which street it connects with the aforesaid stream, (called “Waterbury Brook.”) That stream, passing along Walworth street, turns and crosses plaintiffs’ land. The sewer was built under a contract made by the defendant witli one Adams in 1876, and the specifications provide for the connection with the Waterbury brook. This contract purpoi ted to be made under chapter 271, Laws 1874, §§ 3,4. The defendant insists that the sewers therein provided for are private, because the expense is to be assessed on adjoining owners; and also that the petition was not in conformity with the act, because the sewer was partly on private property.
As to the sewer being partly on private property, it may be that the owners of such property might have objected to its construction. But they have not, and the sewer has been built. The defendant by this objection says to plaintiffs that it is not liable for injury to her land, because for the purpose of doing such injury the defendant trespassed on some other person’s land. That is a poor excuse.
Again, the contract for building the sewer was made by defendant. It is immaterial, then, so far as these plaintiffs are concerned, whether the defendant was or was not to be reimbursed by assessments on adjoining owners. The costs of improvements are often assessed on the land benefited, but yet the making of the improvement is the act of the municipality. If the whole of this sewer were on private land, then it might be improper to adjudge that the defendant should close or stop it, because they might have no right to enter on private land. But much of the sewer is in the street, and is therefore within defendant’s control. When the defendant shall have done all in its power to prevent the injury which the plaintiffs suffer, it will then be time to inquire whether any others are injuring her land.
The defendant insists, further, that it is not liable because the injury arises from the use of the sewer by third persons who connect with it their privies and water-closets. But such was the very object of the sewer. A municipality does not (except from its own buildings) discharge sewage into a sewer, but it constructs the sewer that persons on its line may connect their houses with it, and discharge sewage into it; and it may not lawfully convey the foul material thus collected, and throw it on private property.
The defendant further urges that the injunction is wrong, because the defendant does not own and has not control over the 500 feet of the sewer which are on private property. We have above pointed out the answer to this. The defendant can control, stop up, or divert the sewer at Division street, or further up. The injunction only forbids the defendant to further allow the sewage and filth from the Lawrence-Street sewer to flow on plaintiffs’ land. Lawrence street is above Division, nothing in the injunction requires defendant not to allow sewage, if any, which enters the sewer from the private property below Division street to flow on plaintiffs’ land. Whether the defendant would be liable in respect to such sewage we need not say. The referee has not held the defendant liable in respect to such sewage, and the subject is not before us. We think .that the facts and the law sustain the referee’s findings. The judgment is affirmed, with costs.