City of Lockport v. McCollum

235 A.D. 106, 256 N.Y.S. 283, 1932 N.Y. App. Div. LEXIS 7896

Opinion

Per Curiam.

The plaintiff rests its cause of action upon its right to abate a nuisance in the shape of stagnant pools which it claims have resulted from the failure of the defendant, a downstream riparian owner, to clean out a watercourse and to remove obstructions which he has placed therein. If obstructions placed in the stream by the defendant did cause the nuisance, it would be within the rights of the plaintiff to abate the nuisance by removing obstructions placed in the stream or caused to be placed in the stream by defendant. The trouble we find in this record is that it is not satisfactorily established that a public nuisance exists, nor is it established that the obstruction of the stream by the defendant placing stone in it or even by allowing it to be clogged with weeds and silt in any way caused the pools claimed to be a public nuisance. It may well be that some of the conditions complained of resulted from a decrease in the amount of water allowed to flow through this ditch.

Even were the facts referred to above established, the judgment would be far too broad, as at most it could only relate to the removal of existing obstructions.

The respondent calls to our attention no statute or ordinance dealing with the plaintiff’s rights in the premises.

For these reasons the judgment should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Finding of fact No. 22 is disapproved and reversed on the law and the facts.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Finding of fact No. 22 disapproved and reversed on the law and facts.