Robinson v. New York & Erie Rail Road

27 Barb. 512, 1858 N.Y. App. Div. LEXIS 57

• Court: New York Supreme Court
• Decided: June 7, 1858
• Status: Published

Opinion

By the Court, E. Darwin Smith, J.

The case, upon this appeal, sets out the charge of the judge at the trial considerably in extenso, and then states that to such charge the defendants’ counsel did then and there except. Such a general exception is unavailable to raise any distinct points of error in the charge. It can only be sufficient where the charge consists of a single proposition, or where the whole scope of the charge asserts and explains a single question or principle. At the conclusion of the charge, it also appears that the defendants’ counsel submitted to the circuit judge two propositions, and requested him to charge in accordance therewith, which the judge refused to do, and for this refusal “ the defendants’ counsel did also then and there except.” If these propositions, thus submitted, contained the true theory or principle upon which the defendants’ liability in this action depended, then the circuit judge erred in his refusal to charge as requested; and his charge being in conflict with such propositions taken in connection with such request, was also erroneous in its general scope and meaning. It distinctly appearing that the defendants had excavated and removed the banks of the natural stream whose overflow caused the damages for which the action was brought, the judge, as the final proposition upon which he gave the case to the jury, charged them that “ if they shall find from the evidence that the injury and damage to the plaintiff was occasioned by such excavation and removal, and that but for such excavation and removal the injury and damage complained of would not have occurred, the defendants were liable in this action.” In the two propositions submitted by the defendants’ counsel they claimed, in substance, that the defendants were in the exercise of a lawful right in constructing their rail road at the place in question, and that in the exercise of that right they were not responsible, when all reasonable prudence and caution was observed on their part, to protect others from injury. The charge treats the defendant—a rail road corporation—as the private owner of property, using and improving it for its own benefit, and like natural persons responsible for all direct or consequential injuries resulting to others from such use or improvement. The defendants’ counsel claimed, in effect, that the defendants, as such corporation, were only liable for injuries resulting from negligence or unskillfulness, like municipal corporations or public officers acting in the discharge of a public duty. The rule of liability of private corporations is precisely the same as that of individuals. (9 Wheat. 904. 12 id. 40. 4 id. 688. 4 Hammond, 500, 514. 3 Hill, 529.) It is true that the defendants, under the general rail road act, were entitled to construct their road across, along or upon any stream of water, water course, street, highway, plank road, turnpike road or canal which the route of its road might touch or intersect, restoring the same to its former state so as not unnecessarily to have impaired its usefulness. (Sess. L. of 1850, ch. 140, § 28.) But I do not see that this act relieves the defendants from their liability in this action. The right of the defendants to construct their rail road across this creek is not denied, and is undeniable. But this act of the legislature merely gave authority to-the defendants to cross this creek. It did not, and could not give any authority to them to invade any private right without just compensation. The force of a legislative grant of this kind is well declared in the case of Fletcher v. The Auburn and Syracuse Rail Road Co., (25 Wend. 462,) recently reaffirmed in Brown v. The Cayuga and Susquehanna Rail Road Co., (2 Kern. 487.) The legislative grant authorized the defendants to enter upon, take and appropriate to their own use, on making a just compensation therefor, such lands as they might require for the use of their said rail road, and to cross all intervening waters and streams. But the legislative grant could go no further, so far as it affected private rights. It exempted the defendants from all liabilities, as respects the public, to indictment for a nuisance or otherwise; but it left all rights of property unaffected. It gave merely a franchise, and the title and rights of a private corporation. It conferred and could confer no exemption upon the defendants for wrongs to the rights of private property. (21 Conn. Rep. 294. Williams v. The Central Rail Road Co., 16 N. York Rep. 97. 3 Hill, 567.) Under the charge in this case the jury have found that the injuries sustained by the plaintiff would not have occurred but for the excavation and removal of the banks of the stream, made by the defendants. » Such ’ removal and excavation were made by the defendants for their ; own use and benefit, and necessarily at their own risk, so far > as the rights of others might be affected thereby. Ho one has : the right to change or interfere with the flow, course, channel or banks of a natural stream, at the risk of others or to their prejudice. The legislature authorized the defendants to cross ' this stream, but it bound them, if they in any way interfered with the flow of the water on the banks of the stream, “ to restore it to its former state, so as not unnecessarily to have impaired its usefulness. The defendants interfered with the banks and channel of the stream. Did they restore it to its former state, so as not to have impaired its usefulness ? They were bound so to restore it as to leave the rights of other persons in respect to the stream precisely as before they interfered with it—precisely as they stood in the former state of the stream and its banks. In all cases a rail road corporation, under the provisions of the general rail road act or of any private charter, where they do not change or affect rights of property or appropriate the same and make compensation therefor, must cross, intersect or run along streams and highways, or other roads, at their peril. If they alter, change or affect the stream or the road, they must restore it to its former state, so that the rights of third persons be in no way affected injuriously by such change, or they will be responsible in damages for any injury sustained from such omission. And this is practically the rule asserted by the judge at the circuit, as the basis of the defendants liability, in this action. The defendants claim that they are not liable unless they are guilty of negligence or unskillfulness in making the erection or alteration involved in crossing a stream or road. The riparian owner upon a stream, or the private owner of the lot situate upon a street or highway, except as against the public authorities, is entitled to have such street or highway remain in its former state. He has nothing to do with the question of negligence or unskillfulness in respect to a change of its banks or channel. The question for him, in respect to his rights, is simply and solely, is he damaged by the change or alteration made ? If so, he is entitled to be compensated, to the extent of such damage. A man owning both sides of a private stream has a right to erect a dam upon his own land and use the water thereon, but he has no right to flow his neighbor’s land or do him any injury by the erection of such dam. Such neighbor has nothing to do with the question whether the dam is or is not negligently or unskillfully constructed. He is not bound to submit to injury from a dam skillfully constructed and in respect to which no allegation of negligence could be maintained. The question for him is simply, is he injured, or not, by the construction of such dam ? (5 Cowen, 165.) There is, it is true, a large class of cases where the rule of liability would be that claimed by the defendants in this case, where no action can be sustained for injuries received not resulting from negligence or unskillfulness or some omission of duty. These cases rest upon the sic utere tuum ut alienum non Icedas, and embrace a large class of injuries to the relative rights of the citizen, redress for which can be based upon no other rule than this broad principle of equity and natural justice. But the plaintiff’s right of action does not rest upon this principle. It is based upon the fundamental right of property, the right in and to the soil and to the things upon and pertaining to the earth’s surface. The cardinal maxim, aquas curret et débet currere, &c. implies that no one has the right to change or divert the course, direction or flow of a natural stream, to the injury of another. All men have a right to base their claims to property, so far as such claims relate to the earth’s surface, upon nature’s law, upon the assumption that the earth’s surface is to remain substantially unchanged. Every change or alteration of such surface, where such alteration involves an injury to others, is therefore a violation of natural right. And it is upon this violation that the plaintiff is entitled to maintain this action, independently of the questions of negligence or unstillfttlness of the defendants. In the case of Bailey v. The Mayor of New York, 3 Hill, 531; 2 Denio, 433,) the action was sustained on the ground of negligence; and the rule is there stated as claimed hy the- defendants’ counsel. The plaintiff in that case was a riparian owner below the defendant’s dam, and the injury resulted from the breaking away of the dam. The construction of the dam was lawful, and the injury resulted from its negligent construction. If in this case the injury had resulted from the breaking away of the defendants’ track-works, or artificial water-way, then the case would have been parallel with this case of Bailey, and the action could only be sustained, as in that case, on the ground of negligence. But if in the case of Bailey the damages had been caused by the giving away of the banks of the stream, or by an excess of water cast upon Bailey’s land, in consequence of the construction of the dam, then the question of negligence or unskillfulness in the construction of such dam would not have been in the case, and the action would have been maintainable, as in this case, for an injury or invasion of the primary right of property of the plaintiff. It seems to me that there is a very obvious distinction between the two cases. This action might have been sustainable, perhaps, on the ground of the insufficiency of the water-way provided by the defendants, or for their neglect to keep it open and clear for the flow of the water. But the plaintiff is not driven to these grounds. The excavation and removal of the banks of the stream left the water to flow out of the natural channel of the creek and to overflow the plaintiff’s premises. And this overflow the jury have found would not have happened but for such alteration and excavation of the natural banks of the stream. For the damages resulting from such alteration and excavation, I think this action clearly maintainable.

[Cayuga General, Term, June 7, 1858.

Johnson, Welles and Smith, Justices.]

Besides the question arising upon the charge of the circuit judge, the case presents an exception to the refusal of the judge to allow the defendants to introduce in evidence an agreement signed by quite a number of citizens of Corning, consenting that the defendants lower the grade of Erie street, in which the defendants’ track is laid. I cannot see that this instrument, if admitted, could have had any proper influence upon the merits in this case. It would absolve the defendants from any liability to damage for lowering the grade of that street, and I cannot see that it can have any further operation or effect. The plaintiff’s premises are not on that street, and he did not sign this agreement, and it does not distinctly appear that it was so signed by any grantor of his. But if this had been otherwise, I do not think it could have had any proper influence upon the questions in controversy in this suit, and was therefore rightly excluded. The case, upon the whole, I think, was rightly disposed of ait the circuit, and the judgment should therefore he affirmed.

Judgment affirmed.