
    The New York Central & Hudson River Railroad Company, Resp’t, v. The City of Rochester, Impl’d, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 6, 1891.)
    
    1. Municipal corporations—Sewers—Injunction.
    In 1875 defendant constructed a sewer which discharged into an open ditch on plaintiff’s lands. No right to do so was acquired by the city, but it was done by permission of plaintiff. The city now threatens to connect it .with another sewer, the result of which will be to increase the discharge into said ditch. Held, that the license to discharge from this sewer
    
      did not authorize the discharge of sewage from a much larger territory, and that plaintiff was entitled to an injunction to restrain the same.
    2. Same.
    The city should not be absolutely prohibited from connecting such sewers, but the injunction should be limited to restraining it from discharging more sewage upon the plaintiff’s lands, or its continuance restricted to such time as it shall provide a place for discharge other than upon such land.
    •3. Appeal—Question not baisbd below.
    Where the question of title was not raised on the trial or motion made to dismiss on the ground that plaintiff failed to establish title to the land in question, and defendant preferred no requests to find facts, the objection that plaintiff did not establish a paper title, or any except such as is presumed from possession, cannot be raised on appeal. ■
    Appeal from a judgment of the general term of the fifth judicial department, which affirmed a judgment entered on a decision of the special term.
    
      Edward Harris, for resp’t; John Van Voorhis, for app’lt.
    
      
       Modifying 17 N. Y. State Rep., 805.
    
   Follett, Ch. J.

Prior to 1875 the city of Rochester constructed a sewer extending from East Avenue northerly through a street known as Upton Park, which received the contents of several sewers lying westerly of and emptying into it. In 1875 the' city constructed another sewer, beginning at a point in East Avenue forty feet east of the west line of land then owned by Henry E. Hooker, extending easterly in said avenue about one.half mile to Culver street; thence northerly in that street about fifteen hundred feet to the land of the New York Central & Hudson River Railroad Company, where it discharged into an open ditch maintained by the railroad, which ditch passed by a culvert under and to the north of the railroad tracks; thence easterly along the north side of the tracks about eighty rods to Thomas creek, where it discharged. The expense of constructing this sewer, known as East Avenue sewer, was paid by taxes collected from the property directly benefited by it No right-was acquired by the city to discharge the contents of East Avenue sewer into the ditch on the lands of the railroad, but the railroad permitted it to be done. In 1880 the city began to construct a sewer for the purpose of uniting the two sewers mentioned, so as to cause the sewage which had theretofore been discharged northerly through Upton Park sewer to flow through East Avenue sewer and be discharged into the ditch of the railroad.

This action was begun by the railroad and several persons whose buildings were drained into East Avenue sewer, to restrain the city from making the connection, and thereby greatly increasing the quantity of sewage flowing in this sewer and ultimately on to the lands of the railroad.

The court found that there was no natural right of drainage from this part of the city through the railroad ditch; that no right had been acquired to discharge this additional sewage on to the lands of the railroad; and that when this action was begun the railroad had revoked the license by which it had permitted the contents of East avenue sewer, as originally constructed, to be discharged on to its land. It is plain that a city cannot empty its sewers upon private property without acquiring the right so to do, Noonan v. Cily of Albany, 79 N. Y., 470, and it is equally plain that a paroi license that the sewage from a particular district may be discharged on to private property does not authorize the discharge of the sewage from a much larger territory upon the property. Wheelock v. Noonan, 108 N. Y., 179; 13 N. Y. State Rep., 110. The trial court so held and restrained, in behalf of the railroad, but not in behalf of the individual plaintiffs, the city from connecting Upton park sewer with Bast avenue sewer, and turning the sewage from the former into the latter. A judgment was entered upon this decision, which was affirmed at general term.

When a municipal corporation discharges or threatens to discharge sewage directly on to private lands from the outlet of a permanent sewer without having acquired the right, the owner is entitled to restrain the injury committed or threatened, by the judgment of a court of equity, and is not confined to a recovery of his damages in actions of trespass. Beach v. City of Elmira, 22 Hun, 158: Chapman v. City of Rochester, 110 N. Y., 273; 18 N. Y. State Rep., 133; Stoddard v. Village of Saratoga, 127 N. Y., 261; S. C., 38 N. Y. State Rep., 683; Campbell v. Seaman, 63 N. Y, 568; Murdoch v. Prospect P. & C. I. R. Co., 73 id., 579; Poughkeepsie Gas Co. v. Citizens' Gas Co., 89 id., 493; Wheelock v. Noonan, 108 id., 179; 13 N. Y. State Rep., 110; Snell’s Eq. (9th ed.), 687, 689; 2 Story’s Eq. Jur., § 928.

The defendant excepted to the finding that the railroad company owned the land occupied by it, and upon which the ditch was constructed, and insists that there is no evidence to sustain the finding. On the trial it was assumed, in the questions put to, and in the answers given by, the witnesses, that the lands occupied by the railroad were owned by it, and in the resolutions of the defendant’s common council relating to this sewer the lands are referred to as belonging to the railroad. The question of title was not raised on the trial, nor was a motion to dismiss the complaint made on the ground that the railroad company had failed to establish title to the land on to which the sewage was emptied. The defendant preferred no requests to find facts, and the objection that the defendant did not establish a paper title, or any, except such as is presumed from possession, cannot, under such circumstances, be successfully raised on appeal.

It is urged that the decision of the court and the judgment following it, which restrains the city from making any connection between Upton Park sewer and Bast Avenue sewer and turning the sewage from the former into the latter, is too broad. It is said that the effect of this provision is to prevent the city from constructing such sewers and making such connections between them as may be found necessary. The whole purpose of the action was to restrain the city from discharging more sewage upon the lands of the railroad than it had consented to receive. To such a judgment the plaintiff established a right, and beyond that we do not think the supreme court intended to go. Revertheless, the judgment, by its terms, goes further. It may well be that some place other than the lands of the railroad will be found for receiving the contents of these sewers; in which event the city should be free to make such connections as may be found expedient

The judgment should be modified by inserting before the final clause the following: The provision in this judgment restraining the city of Rochester from connecting the Upton Park sewer and East avenue sewer, and from turning the sewage from the former into the latter, shall not continue in force after the city shall provide a place for its discharge other than on the lands of the railroad company.”

As modified, the judgment should be affirmed, without costs to either party.

All concur, except Bradley and Haight, JJ., not sitting.  