83 N.Y.S. 146 | N.Y. App. Div. | 1903
The action was originally brought in Justice’s Court, where judgment was rendered against the defendant, whereupon an appeal was taken to the County Court of Schuyler county, and a new trial demanded.
The action was brought by the plaintiff to recover damages for flooding and washing out his vineyard and orchard, caused, as was claimed, by the defendant’s collecting in an artificial channel, from surrounding lands, an unusual quantity of surface water and discharging it upon plaintiff’s premises.
The plaintiff’s premises were not adjacent to the defendant’s railway, and the defendant contended that it placed the waterway, which is also used as a cattle pass, in the place where it did at the-direction of the owner of. the lands on each side of its right of way, and, therefore, was not responsible for any damage that might occur by reason of the collection and discharge of water upon premises-below. The defendant, also contends that because it is a railway corporation, it was not liable for the collection and discharge of unusual quantities of surface water unless it did it in a negligent and unskillful manner.
•On the facts which appear we think the defendant had no right to collect surface water in unusual quantities from its lands and lands of others into an artificial channel and discharge it upon the lands of the plaintiff. An indi vidua! would not have that right, nor does a municipal corporation. (Noonan v. City of Albany, 79 N. Y. 470.)
But there were errors committed upon the trial which demand a reversal of the judgment.
The plaintiff was permitted, over the defendant’s objection, to introduce in evidence a letter purporting to be written to the plaintiff by O. O. Esser in December, following the overflow of his lands. This letter was as follows : .
“ Lehigh Valley Railroad.
“ Pa. and y. Y. Division.
“ Office of the Superintendent,
“ Sayre, Pa., Becemher Zth, 190Ó.
“ O. O. Esser, Superintendent.
“ Subject : Damage to Vineyard.
“ Mr. M. L. Wickham, Hector, y, Y.:
“ Dear Sir.— I have your letter of the 3d inst. with reference to the creek at Fenton’s siding becoming clogged at the heavy rain, which caused it to overflow its banks, thereby damaging your vineyard, and in reply would say that I will have the matter attended to as soon as possible. Yours truly, .
“ O. O. ESSER, Superintendents
The objection to the admission of the letter was that it was incompetent and immaterial and could not in any manner bind the defendant. After the letter was received a motion- was made to strike it from the record on the same grounds, which was denied, to both of which rulings the defendant duly excepted.
The jury may very well have. interpreted the letter as an admission by the defendant that it was liable for the damage caused to the plaintiff’s vineyard and that his claim would soon be settled. Even if the letter was admissible as an admission by an officer of the defendant after the damage had occurred, which is doubtful, it certainly was not permissible to receive it in evidence until proof had been offered as to who Esser was and that he was authorized to act in behalf of the defendant corporation. (Alexander v. Cauldwell, 83 N. Y. 480.) In an action against a town for injuries alleged to have been caused by the negligence of the highway commissioner, it is not competent to prove conversations of the plaintiff with' the highway commissioner or with the members of the town board in relation to a settlement. (Davis v. Town of Rochester, 49 N. Y. St. Repr. 533.)
It being necessary because of this error to reverse the judgment and grant a new trial it is unnecessary to consider further exceptions urged by the defendant.
The judgment and order should be reversed and a new trial granted, with costs- to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.