Spring, J.:
Onondaga creek has its source among the hills in the southerly part of Onondaga county, Hows in a northerly direction, passing through the heart of the city of Syracuse and empties into Onondaga lake. For more than fifty years this creek has been the outlet of the sewer system of the city. The .plaintiff’s premises are on the southerly side of Talhnan street in that city and about 260 feet east of the line of the creek. On the 15th day of December, 1901, in an unusual freshet, the creek overflowed its banks*, and the water, sewage and filth overran the premises of the plaintiff, carrying off the sidewalk, the soil, growing trees, vines and shrubbery, filled her cellar, destroyed its contents and left a deposit of sewage, slime and filth after the water receded.
Ordinarily no liability would attach to the city by reason merely [82]*82of the overflowing of the water. A duty is not cast upon it either to restrain the water within the banks of the stream or to indemnify its citizens if in time of a freshet their property is injured by the overflowage of the water. If any liability arises it is because the municipality has so used and appropriated the creek that increased damages resulted to the plaintiff thereby, or else the user carried with it the obligation tó conserve the safety of property to the same extent as if the sewage flowed in an artificial channel constructed by the city and damage was sustained on account of the dereliction in the management of such channel.
Syracuse was incorporated as a city in 1847. Since about that time the chief outlet for its sewage has been this creek. As the city grew the sewer system was extended until at the time of the freshet in December, 1901, there were twenty-three sewers discharging into the creek. Their aggregate length was seventy-five miles, thirty-five of which were along- paved streets. The area covered by these sewers was 1,760 acres. The creek was made a public highway in 1801. (Laws of 1801, chap. 186, § 34.) The municipal authorities early began to assume dominion over it for sewage purposes. By subdivision 24 of section 7 of title 5 of chapter 28 of the Laws of 1854 the common council of the city was authorized to construct and repair sewers. By subdivision 35 of said section it was empowered “ to regulate, straighten, alter and improve the channel of the Onondaga creek, and drain the lands adjacent thereto; ” and by subdivision. 36 thereof, “ to prevent and prohibit encroachments upon the channel of the Onondaga creek, and to clear out and deepen the same,” and to cause obstructions to be removed therefrom. The transmission of this authority was designed for the purpose of enabling the municipality to keep an unobstructed course for the passage of the sewage for the entire width of the stream. The authority of the mayor and common council to “regulate and improve” this channel, and to prevent encroachments thereon, was later re-enacted in the revised city charter (Laws of 1885, chap. 26, § 31). Chapter 496 of the Laws of 1872, which authorized the common council to construct a trunk sewer in Harrison and Onondaga streets from Chestnut street to Onondaga creek, was another distinct recognition by the Legislature of the right of the city to use the creek for the discharge of its sew [83]*83age. Without going into further detail, we may say, generally, that ample authority was vested in the municipality to use the creek as an outlet for the sewage of the city, and it accepted this authority and exercised dominion in constructing its sewers to the creek and in regulating their outflow.
The creek is not a large one, and the astonishing fact is that during all these years, with the increasing growth of the city and the extension of the sewer system, it has, during the greater part of the time, proved reasonably adequate for the removal of the deposits carried to it. Early in the history of the construction of the sewers there were at times, however, complaints by reason of sewage deposits and slime, which, in low water, remained along the banks of the creek, of which the water was not sufficient to absorb and carry off, and also from the increased overflowage in times of high water, claimed to be because of the obstructions in the stream or encroachments upon it.
Its course is sinuous, and in 1854 (Chap. 86) the Legislature appointed commissioners to straighten the channel, and another one was appointed by chapter 508 of the Laws of 1855.
In 1865 there was an unusual flood and the water overflowed the banks of the creek, inundating the lower part of the city. Much agitation apparently ensued because of this deluge and a legislative commission was appointed, composed of the mayor and leading men of the city, to deepen and straighten the channel. These commissioners dredged the channel, removed the bars which had formed across its bed, cleared out the debris and accumulations which had impeded the flow of the water, and thus by cleaning out the stream temporarily facilitated the passage of the water and sewage. The creek, however, was the dumping place for tin cans, ashes, cinders, rubbish and refuse, all of which obstructed the flow of the water, and bars soon re-collected. The mayor and common council were given the authority of commissioners of highways in towns, including the power to build and alter sewers in the city (Revised charter of 1885, § 30, as amd. by Laws of 1889, chap. 475)? and the duty of inspecting and keeping the same free of obstructions was with the commissioner of public works as the administrative officer. (Id. § 49, as amd. by Laws of 1889, chap. 475.)
In 1895 the common council approved of the plan of sewage [84]*84designated the Gray system and this system was formally substituted in lieu of the existing system by section 151 of the revised charter of 1885 (as amd. by Laws of 1898, chap. 595). The chief purpose of this plan was by the construction' and maintenance of intercepting sewers to obviate the fouling of the creek. The plan involved the deepening of the channel about four feet and establishing a uniform grade along its bed.
In 1896 the common council appointed a special committee to investigate the extent of the encroachments upon the creek. The committee in its report of January 11, 1897, covered both the encroachments and the obstructions in the channel and appreciated the necessity for prompt and energetic' action on the part of the municipality to prevent the recurrence of the overflowing and pollution of the creek to the injury of the inhabitants of the city. In their report they say : “ The rapid growth of the city during recent years has made residence districts of the lowlands bordering on the creek, which now sustain a large population. The people so located are constantly increasing in number, and the near future must witness the occupation of the entire section between the city and Onondaga valley. Unless relief can be obtained these people will never be secure against disaster from recurring floods. The receding waters always leave behind a condition favorable to disease and epidemics affecting the welfare of the entire city. These dangers cannot be averted or sensibly diminished without providing a free waterway, and this necessitates at the outset the abatement of encroachments and obstructions in the channel of the creek.
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Spring, J.:
Onondaga creek has its source among the hills in the southerly part of Onondaga county, Hows in a northerly direction, passing through the heart of the city of Syracuse and empties into Onondaga lake. For more than fifty years this creek has been the outlet of the sewer system of the city. The .plaintiff’s premises are on the southerly side of Talhnan street in that city and about 260 feet east of the line of the creek. On the 15th day of December, 1901, in an unusual freshet, the creek overflowed its banks*, and the water, sewage and filth overran the premises of the plaintiff, carrying off the sidewalk, the soil, growing trees, vines and shrubbery, filled her cellar, destroyed its contents and left a deposit of sewage, slime and filth after the water receded.
Ordinarily no liability would attach to the city by reason merely [82]*82of the overflowing of the water. A duty is not cast upon it either to restrain the water within the banks of the stream or to indemnify its citizens if in time of a freshet their property is injured by the overflowage of the water. If any liability arises it is because the municipality has so used and appropriated the creek that increased damages resulted to the plaintiff thereby, or else the user carried with it the obligation tó conserve the safety of property to the same extent as if the sewage flowed in an artificial channel constructed by the city and damage was sustained on account of the dereliction in the management of such channel.
Syracuse was incorporated as a city in 1847. Since about that time the chief outlet for its sewage has been this creek. As the city grew the sewer system was extended until at the time of the freshet in December, 1901, there were twenty-three sewers discharging into the creek. Their aggregate length was seventy-five miles, thirty-five of which were along- paved streets. The area covered by these sewers was 1,760 acres. The creek was made a public highway in 1801. (Laws of 1801, chap. 186, § 34.) The municipal authorities early began to assume dominion over it for sewage purposes. By subdivision 24 of section 7 of title 5 of chapter 28 of the Laws of 1854 the common council of the city was authorized to construct and repair sewers. By subdivision 35 of said section it was empowered “ to regulate, straighten, alter and improve the channel of the Onondaga creek, and drain the lands adjacent thereto; ” and by subdivision. 36 thereof, “ to prevent and prohibit encroachments upon the channel of the Onondaga creek, and to clear out and deepen the same,” and to cause obstructions to be removed therefrom. The transmission of this authority was designed for the purpose of enabling the municipality to keep an unobstructed course for the passage of the sewage for the entire width of the stream. The authority of the mayor and common council to “regulate and improve” this channel, and to prevent encroachments thereon, was later re-enacted in the revised city charter (Laws of 1885, chap. 26, § 31). Chapter 496 of the Laws of 1872, which authorized the common council to construct a trunk sewer in Harrison and Onondaga streets from Chestnut street to Onondaga creek, was another distinct recognition by the Legislature of the right of the city to use the creek for the discharge of its sew [83]*83age. Without going into further detail, we may say, generally, that ample authority was vested in the municipality to use the creek as an outlet for the sewage of the city, and it accepted this authority and exercised dominion in constructing its sewers to the creek and in regulating their outflow.
The creek is not a large one, and the astonishing fact is that during all these years, with the increasing growth of the city and the extension of the sewer system, it has, during the greater part of the time, proved reasonably adequate for the removal of the deposits carried to it. Early in the history of the construction of the sewers there were at times, however, complaints by reason of sewage deposits and slime, which, in low water, remained along the banks of the creek, of which the water was not sufficient to absorb and carry off, and also from the increased overflowage in times of high water, claimed to be because of the obstructions in the stream or encroachments upon it.
Its course is sinuous, and in 1854 (Chap. 86) the Legislature appointed commissioners to straighten the channel, and another one was appointed by chapter 508 of the Laws of 1855.
In 1865 there was an unusual flood and the water overflowed the banks of the creek, inundating the lower part of the city. Much agitation apparently ensued because of this deluge and a legislative commission was appointed, composed of the mayor and leading men of the city, to deepen and straighten the channel. These commissioners dredged the channel, removed the bars which had formed across its bed, cleared out the debris and accumulations which had impeded the flow of the water, and thus by cleaning out the stream temporarily facilitated the passage of the water and sewage. The creek, however, was the dumping place for tin cans, ashes, cinders, rubbish and refuse, all of which obstructed the flow of the water, and bars soon re-collected. The mayor and common council were given the authority of commissioners of highways in towns, including the power to build and alter sewers in the city (Revised charter of 1885, § 30, as amd. by Laws of 1889, chap. 475)? and the duty of inspecting and keeping the same free of obstructions was with the commissioner of public works as the administrative officer. (Id. § 49, as amd. by Laws of 1889, chap. 475.)
In 1895 the common council approved of the plan of sewage [84]*84designated the Gray system and this system was formally substituted in lieu of the existing system by section 151 of the revised charter of 1885 (as amd. by Laws of 1898, chap. 595). The chief purpose of this plan was by the construction' and maintenance of intercepting sewers to obviate the fouling of the creek. The plan involved the deepening of the channel about four feet and establishing a uniform grade along its bed.
In 1896 the common council appointed a special committee to investigate the extent of the encroachments upon the creek. The committee in its report of January 11, 1897, covered both the encroachments and the obstructions in the channel and appreciated the necessity for prompt and energetic' action on the part of the municipality to prevent the recurrence of the overflowing and pollution of the creek to the injury of the inhabitants of the city. In their report they say : “ The rapid growth of the city during recent years has made residence districts of the lowlands bordering on the creek, which now sustain a large population. The people so located are constantly increasing in number, and the near future must witness the occupation of the entire section between the city and Onondaga valley. Unless relief can be obtained these people will never be secure against disaster from recurring floods. The receding waters always leave behind a condition favorable to disease and epidemics affecting the welfare of the entire city. These dangers cannot be averted or sensibly diminished without providing a free waterway, and this necessitates at the outset the abatement of encroachments and obstructions in the channel of the creek. * * * Your committee thinks the time has arrived when the alarm should be sounded without hesitation and without exaggeration, and that the subject of creek improvement should receive the attention which it is only folly to defer.”
They made various recommendations pertaining to the straightening and deepening of the watercourse, the prevention of the deposit of obstructions therein, and the report was formally adopted by the common council.
We have not enumerated all the mass of fruitful legislation and investigation bearing upon the subject of the regulation of the creek and the disposal of the sewage.by the municipal authorities or under their auspices. The purpose of the summary we have grouped is to [85]*85ascertain in a general way the extent of the connection of the city with the control of this stream as a depositary of its sewage, for that is the fundamental proposition in arriving at the liability of the city for damages caused by the* overflowage of water in any aspect of the case which may be presented.
We think the evidence unmistakably demonstrates the constant supervision exercised by the municipal authorities over this waterway for sewage purposes. We would not expect to reach any other conclusion. The stream is the sole outlet of the extensive- sewer plant of the city. Its capacity to absorb and carry off the sewage was frequently tested to the full, and beyond. The occupation of the territory contiguous to the stream by residences both augmented its pollution and directed attention the more acutely to its deplorable condition. The increase in the population of the city and the acceleration given to water collecting therein by the large mileage of paved streets, extended from year to year, also unduly taxed its capacity. Starting, therefore, with the underlying proposition that the city was called upon to exercise affirmatively its governmental functions to reduce to a minimum the dangers likely to result from the.use of this creek and the fact that it realized and undertook in some degree to fulfill the burden imposed upon it, we will briefly examine the facts upon which the learned referee has held the defendant responsible for the injury sustained by the plaintiff by reason of the flood in December, 1901.
There are three crucial facts contained in his report upon which the liability primarily rests. These are the accumulation of ashes, cinders and rubbish upon the bed of the creek to such an extent that they retarded the flowage of the water; the encroachments upon the banks by adjacent proprietors obstructing its channel, and the construction of bridges across it, with abutments in the center and projecting inward from the shores, thus impeding the water flow. These findings are well sustained by the evidence ; in fact, they are in substance uncontradicted. There was more or less controversy over the extent of the retardation of the water by these obstacles, but the engineers in behalf of the plaintiff gave abundant evidence from which the deduction may very reasonably be made, as it was by the referee, that the extent of the overflowage in the freshet which deluged the plaintiff’s premises was measurably [86]*86enhanced because of the facts alluded to, and for the existence of which the defendant may well be chargeable.
These are simple propositions of fact, following naturally in the order of cause and effect and involve no delicate legal complications, and the judgment of the plaintiff might well rest upon them without further pursuit of the subject. (Mundy v. N. Y., L. E. & W. R. R. Co., 75 Hun, 479 ; Sammons v. City of Gloversville, 175 N. Y. 346 ; Farnham on Water & Water Rights, § 259.) In Blizzard v. Danville Borough (175 Penn. St. 479) it was held : “ Where a municipality adopts a stream as an open sewer it is bound to keep open the channel of the stream and to remove accumulations * * * that obstructs* the flow of the water and throws
There is, however, another aspect of the case much discussed by the respective counsel, considered by the learned referee, and which we think irrefragably demonstrates the liability of the defendant. It is earnestly contended by the counsel for the defendant that while the city may be chargeable with damages resulting from the deposit of sewage and filth upon the plaintiff’s premises, the liability does not extend to the injuries inflicted by the water which comprised the bulk of the damages sustained. It is urged that the shrubbery, sidewalks, trees and soil on her premises would have been washed away and her cellar filled and its contents destroyed irrespective of the use of the stream for sewer purposes. Further, that the additional injuries connected with the sewage were too trifling and infinitesimal to be- measured in the calculation in view of the vastly greater damages proceeding from the flood itself. As already noted, the referee has found that the damages were appreciably augmented by the omission of the municipal authorities to keep the creek clear to its full width, and the argument of counsel overlooks this fact in their estimation of the damages. Waiving this branch of the case, however, the city cannot partition the damages on the lines suggested by the counsel. It has appropriated the creek for sewer purposes, it has made it the trunk or main sewer of the city, and the affirmative obligation inseparably linked with this user throws upon it the burden of paying whatever damages resulted from the [87]*87overflowage, although the unusual flood was the inducing cause and responsible for the greater proportion of the damages. The sewage and filth and slime were left in the plain tiff’s cellar and upon her lot after the abatement of the flood, and noxious odors deleterious to health and comfort did emanate from this accumulation. There were accordingly manifest damages to her property fairly traceable to the employment of the creek as a sewer, and these were substantial in amount. The plaintiff, in view of the use of the creek by the city, was not called upon to prove that one item of damage was caused by the sewage and another by the water, and thus separate and specify by a bill of particulars precisely what accrued from each of these causes. An impossible burden would thereby be imposed upon the plaintiff, and the defendant by its conduct has rendered such a separation of the damages unnecessary.
The defendant was responsible in a substantial measure for the damages inflicted, and cannot be exonerated by the excuse that the act of God in causing the flood also contributed materially to these injuries. The act of God which relieves from responsibility only applies where no human aid or intervention has contributed to the loss. (Merritt v. Earle, 29 N. Y. 115; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180.)
As was said in Michaels v. N. Y. C. R. R. Co. (30 N. Y. 564, 571): “If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God; nor oven if the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of natural causes that work their injury, is he excused. In short, to excuse the carrier the ‘ act of God ’ or vis divina must be the sole and immediate cause of the injury. If there be any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God.”
The principle is akin to that which obtains in a case where the' fault of the person charged co-operates in causing the injury, and without which it would not have occurred (Stringham v. Stewart, 100 N. Y. 516 ; Slater v. Mersereau, 64 id. 138; Sutter v. N. Y. C. & H. R. R. R. Co., 79 App. Div. 362), or to the principle which makes each of the persons responsible for the damages accruing from the creation or continuance of a nuisance. (Irvine v. Wood, 51 N. Y. 224; Simmons v. Everson, 124 id. 319.)
[88]*88The counsel urges the kindred excuse that the flood in question was extraordinary in its severity. The proof hardly warrants that characterization. It was an unusual flood in that a freshet so large had occurred only at intervals, but they were of sufficient frequency and fraught with a similarity of perils so as to exact of the defendant the most acute vigilance to prevent as far as possible the infliction of damages upon their recurrence. The flood of 1865 was as large as the one in December, 1901, and a spasmodic attempt succeeding it was made to keep the stream clear, but the effort was confined to a small portion of the stream, and even then to the freeing of the existing channel from rubbish and the gathering bars of sand and silt. The city at that time contained scarcely more than one-third as many inhabitants as dwelt in it in 1901, and yet the warnings of that flood did not bear fruit in any definite effort carried to a conclusion to develop a plan for the purpose of obviating the disasters which were apt at any time to be repeated. Intervening these two larger floods others had occurred, and on at least two occasions the maximum height of the overflowing water was within a foot and one-half of that reached in 1901. The watershed drained by the creek was extensive, and the improvements in the city tended to add to the rapidity of the street-surface flow-age in a flood time. As the capacity of the stream was overtaxed with the sewage no great foresight was required to anticipate that the unfortunate condition which befell the property of the plaintiff was probable whenever high water occurred. The frequency of these floods with the effects following them and which were likely to recur made a question of fact which the referee has settled against the defendant. (Sundheimer v. City of New York, 176 N. Y 495 ; Mundy v. N. Y., L. E & W. R. R. Co., 75 Hun, 479.)
The evidence also shows that the disaster could have been averted. Feasible plans had been devised; one of which had been formally adopted, and their development was within the financial compass of the city, and they were adequate to take care of the sewage independently of the creek, or, at least, and with less cost, to confine the water substantially within its bounds. With the notice it had of the inadequacy of the creek in the condition it was and with the rapidly increasing demands upon it by the growth of the city and [89]*89the extension of the sewer system, the duty to adopt and carry out some effective plan was pressing upon the municipality. Failing in this imperative, affirmative duty, damages with consequent liability followed. In Seifert v. City of Brooklyn (101 N. Y. 136) the court use this language (at p. 143): “We are also of the opinion that the exercise of a judicial or discretionary power, by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which from its nature is liable to be repeated and continuous, but is remediable by a change of plan, or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper. (Wood’s Law of Nuisances, § 752.*) While in the present case the corporation was under no original obligation to the plaintiff or other citizens to build a sewer at the time and in the manner it did, yet, having exercised the power to do so and thereby created a private nuisance on its premises, it incurred a duty, having created the necessity for its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate damages.” (See, also, Ahrens v. City of Rochester, 97 App. Div. 480; 90 N. Y. Supp. 744.)
Assuming that the Legislature gave permission to the municipality to discharge its sewage into this stream, no right was granted to injure the property of the plaintiff by the creation of a nuisance. If the acceptance of the legislative permission, for at best it was no more that that, inevitably involved the destruction or injury to the property of the plaintiff, she was entitled to adequate compensation therefor. The Legislature could not vest in the municipality the power to deprive her of her property rights without compensation. (Sammons v. City of Gloversville, 175 N. Y. 346, 352; Seifert v. City of Brooklyn, 101 id. 136 ; State Const, art. 1, § 6.)
But the Legislature, in empowering certain officers of a municipality to carry on improvements for the well-being of the city and its inhabitants, never by that permission granted immunity to the city from direct injuries to private property. The scope of the [90]*90legislative grant is to transmit the power, but it does not erect a shield to protect municipal wrongdoing.
Nor do we think that the defendant is acquitted of liability by virtue of the rule which relieves a city from the consequences of acts within the discretion of its officers. The liability does not arise because of any error of judgment in carrying out a plan for the discharge of the sewage. The municipal authorities have converted the creek into an open sewer, creating a nuisance resulting directly in damage to the property of the plaintiff, and the city is liable on account of this overt act. (Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 268; Noonan v. City of Albany, 79 id. 470 ; Munk v. City of Watertown, 67 Hun, 261.)
Section 461 of the charter of cities of the second class (Laws of 1898, chap. 182, as amd. by Laws of 1899, chap. 581) requires notice of claim in writing to be presented to the common council within three months after the happening of the injuries. Notice in this case was presented both to the acting president and to the clerk of the common council within the prescribed period. This was a substantial- compliance with the requirement. (McIntee v. City of Middletown, 80 App. Div. 434, 437; Stat. Const. Law [Laws of 1892, chap. 677], § 20.)
The judgment should be affirmed, with costs.
Williams and Stover, JJ., concurred; McLenhah, P. J., concurred in result; Hisoook, J., dissented.
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