McKee v. Delaware & H. Canal Co.

4 N.Y.S. 753, 59 N.Y. Sup. Ct. 52, 22 N.Y. St. Rep. 224, 52 Hun 52, 1889 N.Y. Misc. LEXIS 1698

• Court: New York Supreme Court
• Decided: March 16, 1889
• Status: Published

Opinion

Learned, P. J.

We do not think that the provision in the charter, c. 238, (Laws 1823, § 10,) which gives the right to a summary application fora jury to assess damages, takes away plaintiff’s common-law right of action, or his right to an action in equity. Selden v. Canal Co., 24 Barb. 362; Crittenden v. Wilson, 5 Cow. 165. The important question here is whether defendant is liable for the injury caused, without proof of some negligence on its part. It is not claimed that there was defect in the construction of the dam or in its maintenance; and the defendant only discharges the water at times, and in amounts necessary for the use of its canal. The case of Bellinger v. Railway Co., 23 N. Y. 42, held that where, in pursuance of legislative authority, a person interferes with a running stream by obstructing its flow, he will not be liable for overflows caused, unless on proof of want of due skill. Probably this case states the doctrine claimed by the defendant. Similar is the case of Cuddeback v. Canal Co., 20 Wkly. Dig. 454, where damage was claimed to arise by percolation from defendant’s canal. If this action were for damages occasioned by a break of the dam, the decision in Losee v. Buchanan, 51 N. Y. 476, at 487, would probably apply. But there is a difference in the present case. The plaintiff’s damages do not arise incidentally from the construction of defendant’s dam. They arise from the intentional act of defendant in discharging through an insufficient channel a large body of water, without providing sufficient outlet below plaintiff’s land. The defendant, having a supply of water obtained by its dam, desires to send that water down into its canal. It does this without regard to the fact (of which it has been notified) that the channel of the stream will not carry so large an amount; and therefore the defendant is really pouring this water upon plaintiff’s land, with knowledge that it is so doing. While, of course, the defendant has, we suppose, no wish to injure plaintiff, yet it does acts which it knows will directly injure him; and this it should not be allowed to do. The right to dam a stream, given by a legislature, may excuse the person who constructs the dam in a proper manner from liability arising from great freshets, or from ordinary percolation of water. But we think that such right does not authorize the person intentionally to pour the water thus accumulated upon the land of other persons. Nor may he do this by pouring it through the original channel of the stream in sucli large quantities that the channel cannot convey it. We are of the opinion that the decision of the learned justice was correct, and that the judgment should be affirmed, with costs. All concur.