Wagner v. Long Island Railroad

9 N.Y. Sup. Ct. 633

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Talcott, J.:

This is an action to recover damages against the defendant for constructing the embankment for its road along and across the adjoining land of the plaintiff, whereby the usual flow of the water across and off from the plaintiff’s premises, was damned up and obstructed, and caused to accumulate, whereby the plaintiff sustained damage. It seems to be perfectly well settled, that no action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water, which had been accustomed to flow over and across the land of his neighbor. The question involved in the case, is precisely the same in principle as that which came before the Supreme Court of Massachusetts, in Parks v. The City of Newburyport.

* In that case, the judge on the trial had instructed the jury, that if, for twenty years, the water accumulating on the land in the rear of the lots in question, had been accustomed to find its outlet over the land of the defendants, and the same had been obstructed by the acts of the defendants, in such a way as to turn it from their own land across land of the plaintiff, and occasion substantial injury to the property of the plaintiff, without his fault, or want of care on his part, then the defendants would be liable. The plaintiff having recovered under this instruction, the verdict was set aside upon the ■ following opinion by the court: “ The declaration is for obstructing a water-course, and the instruction allowed the jury to ’ find for the plaintiff, though there was no water-course. No action will lie for the interruption of mere surface drainage.” † These principles, in the abstract, were conceded by the learned justice who tried the cause; but we think the defendant was deprived of the benefit of them by the refusal to nonsuit, and by certain instructions which were given to the jury. It was left to the jury to find, upon the evidence, whether there existed a water-course which the defendant had obstructed. We think this was erroneous in the case, both upon the pleadings and the evidence. First, it is to be observed, that the plaintiff did not, in his complaint, claim that there had existed over this land any stream or water-course which the defendant had obstructed. He says that “ prior to the construction of such embankment, during the winter season, la,rge quantities of water flowed some distance above the plaintiff’s-premises, along and parallel with the aforesaid highway, and passed the plaintiff’s premises without collecting there.” This is a statement which seems plainly to mean that such had been the natural flow of the surface water; and such, we think, the evidence on the part of the plaintiff plainly showed it to be in fact. The plaintiff’s complaint was plainly founded on the theory that the defendant could not lawfully make any embankment on its own land, which would so obstruct the natural flow of surface water during thaws and freshets as to cause it to accumulate on the land of-the plaintiff, but was bound, by means of sufficient culverts, or otherwise, to provide some means whereby this water should be disposed of. And the gravamen of the plaintiff’s action was the alleged negligence, of the defendant in constructing its embankment without providing sufficient pipes and culverts to discharge the surface water. A water-course, according to the definitions of the authorities, “ consists of bed, banks and water; yet, the water need hot flow continually; and there are many water-courses which are sometimes dry. There is, however, a distinction to be taken, in law, between a regular, flowing stream, of water, which, at certain seasons, is dried up, and those occasional bursts of water, which, in times of freshet or melting of ice and snow, descend from the- Jiills and inundate the country. To maintain the right to a water-course or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or side's. It need not be shown to flow continually, as stated aboveand it may at times be dry, but it must have a well defined and substantial existence.” * Water flowing through a hollow or ravine, only in times of rain or melting of snow, is not, in contemplation of law, a water-course, †

The plaintiff as we think, not only failed to allege, but also, to give any evidence tending to show the existence of any watercourse which the defendants had obstructed ; and the motion for a nonsuit should have been granted. We think, also, that portions of the charge excepted to were calculated to mislead the jury. In one portion of the charge the court, after having submitted to the jury the question as to whether there was a living, running stream obstructed by the embankment, said: “ You are to say whether this was practically a running stream, over which the railroad company were bound to build a culvert, so as to furnish drainage for it. In other words, whether they were justified in building a tight dam across this valley, no matter whether the plaintiff’s property was submerged or not.” It seems to us that this charge was calculated to withdraw the attention of the jury from the true question at issue, if any there were, and to substitute in place of it a question to be determined by them, as to whether the defendant ought not, as a mere matter of fairness, and without any question of legal obligation, under all the circumstances, to have constructed culverts in their embankment, to facilitate the drainage of the plaintiff’s land.

The judgment is reversed, a new trial ordered, costs to abide the event.

Present — Tappen and Talcott, JJ.

Judgment reversed and a new trial ordered, costs to abide event.

10 Gray, 38.

See, also, Dickinson v. Worcester, 7 Allen, 19; Swett v. Cutts, 50 N. H., 439; Goodale v. Tuttle, 29 N. Y., 466.

Angell on Water-Courses, § 4.

Id., § 4, a.