Ashberry v. Town of West Seneca

New York Supreme Court

Ashberry v. Town of West Seneca

11 N.Y.S. 306, 33 N.Y. St. Rep. 431, 58 Hun 602, 1890 N.Y. Misc. LEXIS 712

DecidedOctober 23, 1890

StatusPublished

This text of 11 N.Y.S. 306 (Ashberry v. Town of West Seneca) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ashberry v. Town of West Seneca, 11 N.Y.S. 306, 33 N.Y. St. Rep. 431, 58 Hun 602, 1890 N.Y. Misc. LEXIS 712 (N.Y. Super. Ct. 1890).

Pincite

Opinion

Macomber, J.

The plaintiff, who is the owner of a farm lying on the west side of the highway known as the “North and South Road in the Town of West Seneca, ” brings this action to recover damages by reason of the negligent maintenance of an embankment or obstruction by which his land was needlessly overflowed by water. A natural water-course, known as “Smokes’ [307]*307Creek, ” runs through the plaintiff’s lands in the same general direction as the highway, though with many bows and several sharp turns. On the east side of the road there is a ditch beginning at the creek, and terminating at a culvert, a distance of about 1,200 feet. At a point about 200 feet from the creek, an embankment was constructed in this ditch by the defendant’s commissioner of highways in the year 1887, which has since been maintained for the purpose of preventing escaping flood waters of Smokes’ creek, which found their way to the ditch, from washing out and destroying the highway. There was evidence to sustain the contention of the plaintiff that prior to that time the ditch was sufficient to carry off the surplus waters of the creek, overflowing and coming into the ditch, as well as the surface waters, and that since its construction the effect has been to set back upon the plaintiff some of the overflow waters of Smokes’ creek which otherwise would have passed off through the ditch. It is claimed by the counsel for the defendant that the embankment did not interfere with the proper drainage of the surface water, and that such construction was necessary as a means of preventing the creek from overflowing and washing away the highway, and rendering public travel impossible. It was the duty of the defendant to keep the ditch and culvert open so as to carry off the water naturally coming there. Its highway commissioner had not the right to put an obstruction in the ditch, the immediate effect of which would be to interfere with the waters of Smokes’ creek, and to precipitate them, in times of freshet, upon the lands of the plaintiff. Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Barton v. City of Syracuse, 36 N. Y. 54; Byrnes v. City of Cohoes, 67 N. Y. 204. We think the damage to the plaintiff was proximately caused by the unlawful obstruction of the ditch in question, and that, consequently, the judgment should be affirmed.

Dwight, P. J., concurs. Corlett, J., not sitting.

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Macomber, J.

The plaintiff, who is the owner of a farm lying on the west side of the highway known as the “North and South Road in the Town of West Seneca, ” brings this action to recover damages by reason of the negligent maintenance of an embankment or obstruction by which his land was needlessly overflowed by water. A natural water-course, known as “Smokes’ [307]*307Creek, ” runs through the plaintiff’s lands in the same general direction as the highway, though with many bows and several sharp turns. On the east side of the road there is a ditch beginning at the creek, and terminating at a culvert, a distance of about 1,200 feet. At a point about 200 feet from the creek, an embankment was constructed in this ditch by the defendant’s commissioner of highways in the year 1887, which has since been maintained for the purpose of preventing escaping flood waters of Smokes’ creek, which found their way to the ditch, from washing out and destroying the highway. There was evidence to sustain the contention of the plaintiff that prior to that time the ditch was sufficient to carry off the surplus waters of the creek, overflowing and coming into the ditch, as well as the surface waters, and that since its construction the effect has been to set back upon the plaintiff some of the overflow waters of Smokes’ creek which otherwise would have passed off through the ditch. It is claimed by the counsel for the defendant that the embankment did not interfere with the proper drainage of the surface water, and that such construction was necessary as a means of preventing the creek from overflowing and washing away the highway, and rendering public travel impossible. It was the duty of the defendant to keep the ditch and culvert open so as to carry off the water naturally coming there. Its highway commissioner had not the right to put an obstruction in the ditch, the immediate effect of which would be to interfere with the waters of Smokes’ creek, and to precipitate them, in times of freshet, upon the lands of the plaintiff. Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; Barton v. City of Syracuse, 36 N. Y. 54; Byrnes v. City of Cohoes, 67 N. Y. 204. We think the damage to the plaintiff was proximately caused by the unlawful obstruction of the ditch in question, and that, consequently, the judgment should be affirmed.

Dwight, P. J., concurs. Corlett, J., not sitting.

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Bluebook (online)

11 N.Y.S. 306, 33 N.Y. St. Rep. 431, 58 Hun 602, 1890 N.Y. Misc. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashberry-v-town-of-west-seneca-nysupct-1890.

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