Bennett v. Cupina
Cases that cite this one
28 later published cases cite this decision. The 25 that cite it most often are listed here.
- Kossoff v. Rathgeb-Walsh, Inc. (N.Y. 1958)
- Burk v. High Point Homes, Inc. (New York Supreme Court 1960)
- Keller v. State of New York (N.Y. Ct. Cl. 1959)
- Kossoff v. Rathgeb-Walsh, Inc. (Appellate Division of the Supreme Court of New York 1957)
- Roth v. Great Atlantic & Pacific Tea Co. (District Court, E.D. New York 1952)
- Mason v. Lamb (Va. 1949)
- Switzer v. Yunt (Cal. Ct. App. 1935)
- Hanley v. State of New York (Appellate Division of the Supreme Court of New York 2021)
- Lopez v. Adams (Appellate Division of the Supreme Court of New York 2010)
- Benderson Development Co. v. State (Appellate Division of the Supreme Court of New York 1978)
- Morey v. State (Appellate Division of the Supreme Court of New York 1969)
- Seifert v. Sound Beach Property Owners Ass'n (New York Supreme Court 1969)
- Buffalo Sewer Authority v. Town of Cheektowaga (N.Y. 1967)
- Cook v. Pieper (New York Supreme Court 1962)
- Drive-In Realty Corp. v. Lewis (New York Supreme Court 1961)
- Gazin v. Gladwin (Oneida County Court 1961)
- Kazansky v. B. Bergman (New York Supreme Court 1959)
- Attoram Realty Corp. v. Town & Country Builders, Inc. (New York Supreme Court 1958)
- Tench v. Highfield Estates, Inc. (Appellate Division of the Supreme Court of New York 1956)
- Selig v. Mastoloni (Appellate Division of the Supreme Court of New York 1954)
- White v. La Due (New York Supreme Court 1950)
- Scamp v. State (N.Y. Ct. Cl. 1947)
- Williams v. State (N.Y. Ct. Cl. 1947)
- Gibson v. State (N.Y. Ct. Cl. 1946)
- Town of Hamburg v. Gervasi (Appellate Division of the Supreme Court of New York 1945)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The lands of plaintiff and defendants adjoin. Originally, plaintiff’s ground was the higher and the natural flow of surface water settled on defendants’ property. Later, the predecessors of defendants, as trustees of a school district, erected a schoolhouse, filled in and graded their grounds and reconstructed and elevated a driveway on their own premises abutting plaintiff’s land. As a result of these improvements, the grade has been reversed and the surface water now flows down the slope of the school yard into the driveway, thence on to plaintiff’s property and has damaged it. Plaintiff has recovered a money judgment and has also obtained injunctive relief requiring the abatement of a nuisance as assumed and declared.
No drain or ditch has been constructed by defendants. The driveway before reconstruction cannot be held to constitute the bed of a definite watercourse and, consequently, its elevation is not a diversion or a change of a watercourse. Even without its presence, defendants’ land, as graded, would retain its present elevation. The school trustees at their pleasure could have eliminated *439 the driveway and allowed the entire field to remain unsodded or could have covered it with cinders or gravel as a playground. Although the present driveway no doubt forms an outlet for water from the graded lawn, it is not an artificial conduit and may not be deemed objectionable on any principle of equity. Its reconstruction and continued existence is entirely within the exercise of a recognized right. In good faith and for the purpose of improving his property a lower proprietor may fill and grade Iris lands. When, without the creation of a defined watercourse, or the alteration of an existing one, the result is s,o to change the natural contour of the land as to cause surface waters to collect in a highway and overflow a neighbor’s property, the act is no less lawful. Since this water is not cast by drains or ditches upon adjoining premises defendants may get rid of it any way they can. They have full dominion over their own land, above as well as below the surface. The resulting damage gives no right of action. Damnum absque injuria. (Goodale v. Tuttle, 29 N. Y. 459, 467; Barkley v. Wilcox, 86 N. Y. 140, 147; Howard v. City of Buffalo, 211 N. Y. 241, 258.)
The judgment of the Appellate Division and that of the Special Term should be reversed and the complaint dismissed, with costs to the appellants in all courts.
Cardozo, Ch. J., Pound, Cbane, Lehman, Kellogg and Hubbs, JJ., concur.
Judgments reversed, etc.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.