Waffle v. New York Central Railroad, 58 Barb. 413

Waffle v. New York Central Railroad

58 Barb. 413 | N.Y. Sup. Ct. | 1870

By the Court, Johnson, J.

There is no dispute about the facts in this case. The plaintiff’s saw-mill is upon a small ¡ stream, nearly two miles below the point where the- defendant’s road crosses such stream. At that point the 1 land is naturally low and marshy, and the defendants, in constructing their road, raised the bed thereof above the ■natural surface of the land, by excavations on each side, ■ which made ditches, by means of which the surface water 1 of this low, marshy land, was for a considerable distance ' drawn off, and passed into this stream on each side of the road bed, where the stream is crossed by the road. These ditches are wholly upon the defendants’ land, and conduct the surface water into this stream upon their own land^ The only cause of action stated in the complaint is, in substance, that by means of these ditches, the water from this low land is drawn off and conveyed into this stream more rapidly than it would be otherwise; and in the wet season, and in times of flood and high water, filled the stream and the plaintiff’s pond so full, and increased the volume of water to such an extent, that he could not use the same, but was compelled to open his gates and let the *422water flow without using the same; and that as the dry season came on, the water was by the same means drawn off so rapidly from these low, wet grounds, that the stream did not keep up as it did before, and the supply which said stream was accustomed to receive, gradually, from from such wet lands, was earlier exhausted, and the plaintiff’s mill thereby was compelled to lie idle and unemployed for want of water, for a much longer period than formerly, and a much longer period than it would, had these drains not been made. The testimony tended to sustain these allegations in the complaint. It appeared from the evidence, that there was no natural outlet or water course from this low wet land into the creek, but a gentle and gradual inclination of the surface for a long distance towards the stream. The defendants’ ditches extended through these lands for a distance of over two miles; and it appears that the owners of the lands along this distance, adjacent to the railway, have availed themselves of the defendants ditches, and drained the'surface water from their lands, by means of ditches through the same, emptying into the defendants’ ditches. By these means the surface water is discharged from these wet lands, and the same are rendered tillable and productive, instead of remaining waste lands, and serving as a mere reservoir to hold water for the use of the plaintiff’s mill, for a few more days or weeks each summer.

It is entirely clear that these facts constitute no cause , of action, y Every person has the unquestionable right to drauTthe surface water from his own land, to render it more wholesome, useful or productive, or even to gratify his taste or will; and if another is inconvenienced, or in- ^ cidently injured thereby, he cannot complain. Ho one > can divert a natural water course and stream, through his land, to the injury of another, with impunity; nor can he by means of drains or ditches, throw the surface water *423from his own land upon the land of another, to the injury of such other. But where a person can drain his own land without turning the water upon the land of another, or where it can be done by drains emptying into a natural stream and water course, there can be no doubt of his right thus to drain, even though the effect may be to increase the volume of water unusually, at one season of the year, or to diminish the supply at another.

Ho one can be required to suffer his land to be used as a reservoir or water-table for the convenience or advantage of others. This principle is laid down by all the judges, in Rawstron v. Taylor, (11 Exch. 369.) It is also recognized as the true rule by Denio, Ch. J., in Goodale v. Tuttle, (29 N. Y. 459,) at page 467, where he says: “In respect to the running off of surface water caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil, for its amelioration and his own advantage, because his neighbor’s land is so situated as to be incommoded by it. Such a doctrine would militate against the well settled rule that the owner of land has full dominion over the whole space above and below the surface.” In Miller v. Loubach, (47 Penn. 154,) Thompson, J.', in delivering the opinion of the court, says: “ Ho doubt the owner of land through which a stream flows may increase the volume of water by draining into it, without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow in the channel of the stream, because the upper owner has the right to all the advantages of drainage or irrigation, reasonably used, which the stream may give him.” This rule commends itself to general acceptance, by its sound sense, and easy, adaptability to the common wants, interests and necessities of adjacent owners of lands. (See also Kauffman v. Greisemer, 26 Penn. 407; Martin v. Riddle, Id. 415, note; *424Williams v. Gale, 3 H. & J. 231; Angell on Water Courses, 6th ed., §§ 108 a to 108 s;) where the whole doctrine of drainage is examined and treated.

[Fourth Department, General Term, at Syracuse, November 14, 1870.

The plaintiff was therefore properly nonsuited, and a new trial must be denied.

Mullin, P, J., and Johnson and Talcott, Justices.]