Cochrane, J.:
■ Plaintiff conyeyed to the defendant,.for the purpose of a railroad, the property where the alleged wrongful acts were committed. It is apparent from, the language of the grant that plaintiff understood and intended that .it should be so. used. .The defendant,.in. constructing an additional track and -in widening, for, that .purpose its roadbed, was acting in pursuance .of legislative authority ■ and. for the accomplishment of a work of ■ public utility. In such a case, where it is acting within legislative authority and has acquired the [384]*384necessary private rights of owners, it is well settled that it is only liable for negligence in the construction or for want of due skill and care in so arranging or accomplishing its necessary work as to avoid injury reasonably to be anticipated. (Uline v. New York Central & H. R. R. R. Co., 101 N. Y. 98; Bennett v. Long Island R. R. Co., 181 id. 431; Conklin v. New York, Ontario & Western R. Co., 102 id. 107,112; Bellinger v. New York Central Railroad, 23 id. 42; Conabeer v. New York Central & H. R. R. R. Co., 156 id. 474.)
Under the foregoing authorities the defendant was justified in the construction of an additional track for its railroad and if it properly .and reasonably exercised such right of construction any damages to plaintiff necessarily arising therefrom would be merely incidental or consequential and not of such a character as to render the defendant liable therefor.
But the defendant could not arbitrarily or capriciously exercise such right of construction in a manner unnecessarily injurious to plaintiff. The authorities cited do not go to that extent. Whether defendant should have widened its roadbed on the side more remote from the river, or whether it extended its embankment in the river to an unnecessary extent, or whether some other method of construction should have been adopted were questions for the consideration of the trial court in determining whether defendant had in a reasonable manner and with due regard for plaintiff’s rights constructed its additional track. Although the right of defendant to build such track and to do all things necessary for the maintenance and preservation of its property cannot be questioned, nevertheless such right was subject to the exercise thereof in strict conformity to the riglits of private owners and subject to the same responsibilities as though such right of the defendant were being exercised by an individual. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.)
In the case last cited it was stated tersely and comprehensively: “ The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by [385]*385virtue of liis ownership over his property, having regard to all interests affected, his own, and those of his neighbors, and having in view also public policy.”
The question of the reasonableness or unreasonableness of the defendant’s acts in casting its debris into the river having reference to the necessity of widening the roadbed for an additional track or having reference to the proper maintenance and protection of its property for the convenience and safety of the traveling public was not determined and seems not to have been considered at the trial. Plaintiff’s theory of the action was that defendant was liable irrespective of any question of unreasonableness in the use of its property provided only its acts caused the water to flow over plaintiff’s premises. That theory is untenable. The court did not go far enough in its determination to fasten liability on defendant.
There is some evidence that defendant cast its debris beyond the boundary limits of its property but the evidence fails entirely to satisfactorily establish that such quantity was sufficient to accomplish all the mischief of which the plaintiff complains.
It may be that defendant in the lawful exercise of its right to build an additional track might have accomplished such purpose without inj urious consequences to plaintiff by some other method or plan of construction and that having due regard for the rights of others defendant should in reason and fairness have adopted such method or plan,. That criterion should have been applied to the case at the trial and. because of the failure to do so it would seem that a reversal must follow.
There is another difficulty underlying this judgment. It is a very serious question whether the flooding of plaintiff’s land was occasioned by tilling in the river on the opposite side, or was due to the natural operation of the freshets. This point was strenuously combated by defendant. It appears both from the complaint and the evidence that the river is subject to great fluctuations in the quantity of water flowing therein and ■ to freshets and to suddenly increased volumes of water. The freshet of 1901 was admitted by all the witnesses to have been the severest in many years. Two villages in the vicinity were flooded. Portions of land, in one instance several acres, were swept away. The railroad track was submerged [386]*386and a portion of the new embankment recently constructed was destroyed. The contour of the stream seems to have been changed at various points. Naturally and as appears by the evidence a freshet of that kind would leave a condition which would be aggravated by subsequent occasions of high water. When that freshet occurred the work of filling in was far from completion, which fact adds to the possibility that plaintiffs damages wére due to the natural operation of the freshet. There is evidence that prior to that freshet the channel was deep on the westerly side of the river whereas on the easterly side plaintiffs premises sloped gradually into the river, the shallow water gradually increasing in depth. At the time of the trial the conditions were largely reversed and adjoining plaintiff’s premises was a deep channel. Witnesses were permitted to testify that the filling in on the railroad side of .the river caused the washing out of the bed of the river along plaintiff’s land. This testimony was received against the objection of defendant and exceptions were taken. This was one of the very points in. controversy and one of the questions submitted to the jury and answered by them. As stated by the learned trial justice to the jury it was one of the crucial questions, in the case, and in giving such testimony the witnesses were deciding this branch of the case and transcending their proper functions. They possessed no scientific knowledge on the subject and their answers were merely the expressions of opinions and deductions from facts which could only properly be deduced by the court or jury. Their testimony imparted no information which could not be given by a statement or narrative of facts.
The admissibility of opinions by expert witnesses has been several times, recently before the court of last resort. (Dougherty v. Milliken, 163 N. Y. 527; Schutz v. Union R. Co., 181 id. 33; Welle v. Celluloid Co., 186 id.
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Cochrane, J.:
■ Plaintiff conyeyed to the defendant,.for the purpose of a railroad, the property where the alleged wrongful acts were committed. It is apparent from, the language of the grant that plaintiff understood and intended that .it should be so. used. .The defendant,.in. constructing an additional track and -in widening, for, that .purpose its roadbed, was acting in pursuance .of legislative authority ■ and. for the accomplishment of a work of ■ public utility. In such a case, where it is acting within legislative authority and has acquired the [384]*384necessary private rights of owners, it is well settled that it is only liable for negligence in the construction or for want of due skill and care in so arranging or accomplishing its necessary work as to avoid injury reasonably to be anticipated. (Uline v. New York Central & H. R. R. R. Co., 101 N. Y. 98; Bennett v. Long Island R. R. Co., 181 id. 431; Conklin v. New York, Ontario & Western R. Co., 102 id. 107,112; Bellinger v. New York Central Railroad, 23 id. 42; Conabeer v. New York Central & H. R. R. R. Co., 156 id. 474.)
Under the foregoing authorities the defendant was justified in the construction of an additional track for its railroad and if it properly .and reasonably exercised such right of construction any damages to plaintiff necessarily arising therefrom would be merely incidental or consequential and not of such a character as to render the defendant liable therefor.
But the defendant could not arbitrarily or capriciously exercise such right of construction in a manner unnecessarily injurious to plaintiff. The authorities cited do not go to that extent. Whether defendant should have widened its roadbed on the side more remote from the river, or whether it extended its embankment in the river to an unnecessary extent, or whether some other method of construction should have been adopted were questions for the consideration of the trial court in determining whether defendant had in a reasonable manner and with due regard for plaintiff’s rights constructed its additional track. Although the right of defendant to build such track and to do all things necessary for the maintenance and preservation of its property cannot be questioned, nevertheless such right was subject to the exercise thereof in strict conformity to the riglits of private owners and subject to the same responsibilities as though such right of the defendant were being exercised by an individual. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.)
In the case last cited it was stated tersely and comprehensively: “ The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by [385]*385virtue of liis ownership over his property, having regard to all interests affected, his own, and those of his neighbors, and having in view also public policy.”
The question of the reasonableness or unreasonableness of the defendant’s acts in casting its debris into the river having reference to the necessity of widening the roadbed for an additional track or having reference to the proper maintenance and protection of its property for the convenience and safety of the traveling public was not determined and seems not to have been considered at the trial. Plaintiff’s theory of the action was that defendant was liable irrespective of any question of unreasonableness in the use of its property provided only its acts caused the water to flow over plaintiff’s premises. That theory is untenable. The court did not go far enough in its determination to fasten liability on defendant.
There is some evidence that defendant cast its debris beyond the boundary limits of its property but the evidence fails entirely to satisfactorily establish that such quantity was sufficient to accomplish all the mischief of which the plaintiff complains.
It may be that defendant in the lawful exercise of its right to build an additional track might have accomplished such purpose without inj urious consequences to plaintiff by some other method or plan of construction and that having due regard for the rights of others defendant should in reason and fairness have adopted such method or plan,. That criterion should have been applied to the case at the trial and. because of the failure to do so it would seem that a reversal must follow.
There is another difficulty underlying this judgment. It is a very serious question whether the flooding of plaintiff’s land was occasioned by tilling in the river on the opposite side, or was due to the natural operation of the freshets. This point was strenuously combated by defendant. It appears both from the complaint and the evidence that the river is subject to great fluctuations in the quantity of water flowing therein and ■ to freshets and to suddenly increased volumes of water. The freshet of 1901 was admitted by all the witnesses to have been the severest in many years. Two villages in the vicinity were flooded. Portions of land, in one instance several acres, were swept away. The railroad track was submerged [386]*386and a portion of the new embankment recently constructed was destroyed. The contour of the stream seems to have been changed at various points. Naturally and as appears by the evidence a freshet of that kind would leave a condition which would be aggravated by subsequent occasions of high water. When that freshet occurred the work of filling in was far from completion, which fact adds to the possibility that plaintiffs damages wére due to the natural operation of the freshet. There is evidence that prior to that freshet the channel was deep on the westerly side of the river whereas on the easterly side plaintiffs premises sloped gradually into the river, the shallow water gradually increasing in depth. At the time of the trial the conditions were largely reversed and adjoining plaintiff’s premises was a deep channel. Witnesses were permitted to testify that the filling in on the railroad side of .the river caused the washing out of the bed of the river along plaintiff’s land. This testimony was received against the objection of defendant and exceptions were taken. This was one of the very points in. controversy and one of the questions submitted to the jury and answered by them. As stated by the learned trial justice to the jury it was one of the crucial questions, in the case, and in giving such testimony the witnesses were deciding this branch of the case and transcending their proper functions. They possessed no scientific knowledge on the subject and their answers were merely the expressions of opinions and deductions from facts which could only properly be deduced by the court or jury. Their testimony imparted no information which could not be given by a statement or narrative of facts.
The admissibility of opinions by expert witnesses has been several times, recently before the court of last resort. (Dougherty v. Milliken, 163 N. Y. 527; Schutz v. Union R. Co., 181 id. 33; Welle v. Celluloid Co., 186 id. 319.) From those cases it appears that conclusions of expert witnesses may only be given in evidence when such conclusions as well as knowledge of the facts from which such conclusions are drawn depend upon professional or scientific information or skill not within the range of ordinary training or intelligence and that the knowledge which the witness possesses exists in reasons or argument rather than in descriptive facts and cannot, therefore, be intelligently communicated to others so as to acquaint them with a full understanding of the subject. If [387]*387the subject is one concerning which scientific knowledge can only be imparted in the form of reasons or opinions to those not informed as to the particular science, then such evidence may be given. It is apparent in the present case that the opinions of these witnesses were based on nothing but facts easily susceptible of description, and in going beyond such facts the witnesses were clearly invading the province of the court. The question for determination was whether the change in the river was due to filling in the westerly edge thereof. The jury as well as the witnesses could answer that question after hearing all the facts bearing thereon. The witnesses did not state merely that filling in the river caused a displacement of the water but in effect that it caused the deep channel of the river to be changed from the extreme westerly side adjacent the railroad to the extreme easterly side adjacent the farm of plaintiff, a distance of about 140 feet. As this evidence was directed to a question concerning which the evidence was quite evenly balanced it cannot be overlooked. As was said in Welle v. Celluloid Co. (supra): “In a close case an erroneous admission of such opinion evidence may very seriously prejudice a defendant.”
The judgment must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.
All concurred, Smith, P. J., in result, except Chester, J., dissenting.
Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.