Lohmeyer v. State

252 A.D. 908, 299 N.Y.S. 681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1937
• Docket: Claim No. 24088; Claim No. 24097
• Status: Published

Opinion

Appeals from two judgments of the Court of Claims entered in the office of the clerk of that court on November 7, 1936, one in favor of the claimant Milton Smith in the sum of $499, and the other in favor of claimant Henry Lohmeyer in the sum of $850. The State built and for many years maintained a stone aqueduct to conduct the waters of the old Erie canal over Auries creek at Auriesville in Montgomery county. The aqueduct was supported over the creek bed by stone pillars, with four intervening arches. Each of these arches was about twenty-two feet in width, and the tops of the arches were about eight and a half feet above the creek bed. For many years these arches were adequate to permit without undue obstruction the full flow of the creek, even in flood seasons. During a period of many years the archways became obstructed by the deposit of sand, gravel and other debris to such an extent that one was practically closed, and two others were greatly reduced in capacity. This condition was known to the canal authorities of the State whose duty it was to maintain the efficiency of the archways. On July 6 and 7, 1935, a heavy rainfall occurred amounting to a precipitation of about six and a half inches. During this freshet floating debris, including one or two trees of substantial size, were carried down the stream and lodged against the supports of the aqueduct. Because of this and the reduced capacity of the archways the flood water was held back, and caused to flow upon and damage the lands of the claimants, their crops, and other personal property. The evidence justified the finding of negligence on the part of officers of the State, and the damages as found. Judgments unanimously affirmed, with costs in one action. Present — Hill, P. J., McNamee, Crapser, Bliss and Hefíernan, JJ.