Deigleman v. New York, Lackawanna & Western Railway Co.

It is conceded by defendant that it possesses no right to collect the surface water to an extent beyond the capacity of the pits and discharge the overflow upon plaintiff’s premises ; and its claim is that it has not done such act, but that the water collected in the borrow pits is due to the fact of the construction of the embankment by which the water is turned back into the pit and from thence it is conveyed in the Military road, its natural channel, and being discharged therein. Defendant has performed all the duties resting upon it, and if the overflow upon plaintiff’s premises is due to the freezing and obstructing of Military road, even though by the water it turns therein, no liability attaches on account thereof.

It is undisputed that prior to the construction of the pits the water passed away without inflicting damage or producing discomfort to plaintiff; that there was no point at which it collected in any considerable amount, and such portions as passed into Military road was not discharged at any one point, but was from all points along the frontage of the land adjoining thereon. It is also undisputed fhat'since the construction of the pits the surface water has been drawn thereto, where it is discharged at one *6point and in increased volume. The oral testimony is undisputed that at times of heavy falls of rain, with melting sno-w and ice, the pits overflow and flood plaintiff’s premises. Defendant claims that the character of the pits, the opening of the ditch into Military road by which the water is lowered in the pits from fifteen to eighteen inches, show that such testimony is not reliable, as such overflow is physically impossible. This is doubtless true when the water runs freely from the pit to Military road, and also when it passes freely through the box drain at the farm crossing, but with either of these closed or stopped up, the accumulation of water would quite readily overflow the bank and flood the land. The court cannot say from an observation made at a time when both ditches were open that a condition of affairs did not exist as described at the time described by the witnesses, for with the drains stopped it is by no means' a physical impossibility. That there was an overflow the evidence satisfactorily establishes; indeed, it is not disputed. Defendant insists that if there was an overflow it was not from the pit but from Military road, due to the obstruction therein; that for this they are not liable for two reasons: First This is the natural channel for the water and has always been so. Second. Adjoining owners on either side have opened dead furrows therein which has increased the body of water flowing therein, and that the water discharged from the pits has only in part produced the condition. As to the latter ground, if turn- • ing the water into the street in the manner adopted and in the quantity discharged was wrongful, then defendant is not relieved from liability because other wrongdoers have also contributed to the injury. As to the first ground it is to be observed that there has been a radical change made in the flow of the surface water by the construction of the pits; instead of its running off through the imperceptible channels or being- otherwise disposed of it is now? collected into comparatively large bodies of water and from a large extent of territory, instead of being discharged from the land at numerous places it is reduced to two, and flaw's therefrom at times in a greatly increased volume; such condition has produced the injury complained of, and I think it can make no difference whether such overflow upon plaintiff’s premises comes by reason of the stoppage of the drain connecting the pits, or the one leading into Military road, or by reason of the increased quantity of water turned into Military road where by action of the elements it is obstructed and sets back upon plaintiff, for the primary cause is found in the collection of the surface water, which is of necessity discharged at a different place in increased volume, and by reason thereof it is precipitated in considerable quantities upon the land of plaintiff, and inflicts damage. The authorities in this state have uniformly held that a person producing such result is liable for the damages occasioned thereby. Bastable v. City of Syracuse, 8 Hun, 587; Noonan v. City of Albany, 79 N. Y., 470 ; Clark v. City of Rochester, 43 Hun, 271; 5 N. Y. State Rep., 456.

These views and authorities in no wise1 conflict with the cases relied upon by defendant. Goodale v. Tuttle, 29 N. Y., 459, first *7announced the now conceded doctrine in this state, that an owner for the amelioration of his own soil may fill up and reclaim wet, marshy land, even though the effect is to prevent the flow of surface water thereon, and cause it to accumulate upon the land of an adjoining owner to his disadvantage.

In Vanderwiele v. Taylor, 65 N. Y., 346, the surface of defendant’s lots descended towards plaintiff’s lots, and the surface water ran thereon ; plaintiff constructed on his lots buildings, defendant’s remained vacant, and the surface water ran down, settling against the wall of plaintiff’s building, soaked into his cellar, causing the wall to settle. It was held that defendant owed plaintiff no duty to drain his lot of surface water, or prevent its flow to the lower lot. But Judge Earl observes, in disposing of the question: “It must constantly be borne in mind that defendant had done nothing to increase or interfere with the flow of water from his land, and lienee this case is entirely unlike Rylands v. Fletcher * * * and like cases, where the owners of lands brought or gathered upon their land unusual quantities of water, which escaped and caused injury.” Id., 347.

In Barkley v. Wilcox, 86 N. Y., 140, the doctrine of the civil law, which holds that the rights of parties with respect to the flow of surface waters is to be governed by the law of nature, and that the lower proprietor may not fill up his land so as to prevent its flow from his more fortunately situated neighbor, does not, in all cases, find application in this state. The precise distinction, however, already adverted to, is recognized and stated. Id., 146, 147, 148. So in Peck v. Goodberlett, 109 N. Y., 180; 15 N. Y. State Rep., 182, which is the last statement of the court of appeals upon this subject that has fallen under my observation, the rule is again reiterated and applied. I find nothing in any of the cases cited by defendant, or in the numerous cases not cited which abound in the reports of this and other states, which modify or change the rule of the cases first cited as applied to the facts of this case. I am therefore constrained to hold that the plaintiff is entitled to judgment commanding and directing the defndant to fill up its said pits and prevent the accumulation of surface water therein or to construct suitable and proper drains from said pits so that the water collected therein may be carried off without detriment or damage to the lands of plaintiff.