106 Misc. 19 | New York Court of Claims | 1919
The notice of intention in this case alleges:
“ The claim will be based upon the negligence of the State of New York, its officers, agents and servants in constructing and maintaining a dam across the Hudson Biver * * *."
Also, “All of the said damages were caused by the overflow of the said waters of the said Hudson river, which overflow was and is caused by the negligence and improper construction of said Crocker’s Beefs dam. * * *."
The claim itself reads in part as follows:
“ First. This claim is for negligence of the State of New York in constructing and maintaining a dam across the Hudson River * * * and particularly in failing to provide a sufficient opening in said dam, or proper appliances to permit the water to escape freely through said dam.”
“ Third. That in the months of April, May and June, 1913, by reason of the negligence of the State of New York in the negligent construction of said dam and the failure to provide an opening in said dam or gates or some other proper and sufficient appliance to permit the waters of the Hudson Biver to flow freely through said dam, the waters of the said Hudson Biver were forced back in and upon the lands of this claimant, thereby flooding the same * * * and the entire property, by reason of the aforesaid flooding and negligence on the part of the State of New York, is unfit for use and greatly depreciated in value until the same is now valueless and no longer tenantable.”
On the trial, the claimant established that she became the owner of the premises concerned in 1905. They consist of about five acres of land on the bank of the Hudson river, in the town of Moreau, Saratoga county. On the premises are a very substantial dwelling house
The claimant proved, too, that, as a consequence of the erection of this dam and the raising of the elevation of the river, the water of the latter flowed back through a drainage ditch and flooded a portion of her premises, rendering it untillable, and that the cellar of her dwelling house became wet and moist and the house itself became damp, cold and untenantable, and
In the first place, it is the law that there can be no recovery for damage accruing to a claimant as the result of a public improvement effected under legislative authority, in the absence of any trespass and of any negligence. The injury to the claimant in such a case is damnum absque injuria. Brooks v. State of New York, 17 C. of C. E. 77; 13 St. Dept. Rep. 38; Weaver v. State of New York, 17 C. of C. R. 13; 12 St. Dept. Rep. 8; Gordon v. Ellenville & K. R. Co., 195 N. Y. 137; McKee v. Delaware & H. Canal Co., 125 id. 353-356.
It is clear that the notice of intention and claim here sound, not in trespass but in negligence. They leave no doubt that negligence is the gravamen of the action.
The claimant, however, has failed utterly to establish the negligence of the state. There is no proof whatever that the state did, or omitted anything, in violation of the requirements of due care and skill. It has not been established that gates, or other devices, in such a dam are either usual, feasible or desirable, but, on the contrary, it appeared that because of the variable human element involved in their regulation and operation, they would be much less safe and desirable. The claimant has failed to establish the cause of action alleged, and she cannot recover upon it.
It appears that the erection of the dam resulted directly and necessarily in the flooding of the claimant’s premises and damaged her. For this trespass the state would seem to be liable in an appropriate proceeding to the extent of the damage properly proved. The trespass is continuous, and, therefore, the right to recover is not barred by the lapse of time,
But the claim is based on negligence only, as we have indicated. On the trial, at the conclusion of her case, the claimant moved to amend the claim to conform it to the proof, in effect, to allege a claim for trespass instead of negligence. Decision on this motion was reserved. It is now denied, with an exception to the claimant. A recent decision of the Appellate Division points out that such an amendment substitutes a different cause of action for that originally alleged, and is unauthorized and erroneous, and recovery can be had only on the cause of action pleaded. Konner v. State of New York, 180 App. Div. 837. So the claimant cannot recover on the theory of a trespass.
In brief, she cannot recover for trespass because she did not allege it; she cannot recover for negligence because she has failed to establish it. Konner v. State of New York, supra.
No permanent damage to the premises has been established. If the dam were removed, or the causal conditions of which the claimant complains were corrected, the premises, from that moment, would resume the situation existing prior to 1906. The premises will be affected and damaged only so long as the dam remains unchanged. It is obvious that if the dam were removed or if gates or other devices could be and should be installed which would relieve the situation at critical times, the claimant’s damages would end. The state could, perhaps, terminate the claimant’s damages at any time, and it is quite conceivable, in view of the substantial damages claimed here, and of the probability that others are similarly affected,
It is clear from the foregoing discussion that the claim must be dismissed. All motions made by the state at the trial, decision upon which was reserved, are hereby denied, with an exception to the state.
Ackerson, P. J., concurs.
Claim dismissed.