
    Theodore P. Ballou, as Executor and Appellant, v. State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    State op New Yoke — When liable por injuries resulting prom a SEWER BUILT TO CARRY OPP WATER PROM ERIE CANAL.
    Before 1840 there was a lawful sewer in John street, in the city of Utica, constructed for the benefit of the owners of lots upon that street, into which said owners had a right to drain their lots. About said year the state, in order to drain a weigh lock upon the Erie canal, took up that sewer, and substituted its sewer in the place thereof. There was no way to drain the lots on said street except into the sewer therein. The state did not take any proceedings to condemn the property, and constructed the sewer not only for its use, but for the use of the adjoining lot owners, leaving openings therein for drains from said lots. Reid, that having thus constructed the sewer with these openings, the state was bound to use reasonable care in keeping the sewer in repairi and in its management.
    S. Same—State liable por negligence in not cleaning sewer.
    In 1876, for the first time, water came from the sewer into the basement of claimant’s store (caused, as was afterward ascertained, by an obstruction in the sewer), and the state had notice of it. The state took no action to repair the sewer or to remove the obstruction. The next year the water was again set back from the dra,ns, and the obstacle was then discovered by the claimant and removed. Reid,that it was the duty of the state to keep the water which had discharged into the sewer from being dammed up therein and forced back into the drain. That it owed the same duty which a city owning a sewer, and charged with the duty of keeping it in repair, owes to abutting owners.
    This is an appeal from the award of the board of claims which dismissed the claim of the plaintiff’s testator. The material facts found by the board are as follows : In December, 1877, the claimant was, and for about twenty years prior thereto had been, the owner of a parcel of land situate at the corner of John and Main streets in the city of Utica, known as “Ballou block.” In the years 1876 and 1877 a portion of the block was occupied by the firm of John O. Hieber & Co., who were engaged in the business of buying and selling dry goods. Prior to the year 1840, there was a sewer in John street constructed by or under the authority of the city into which the property owners along that street, including the claimant, drained their respective lots. About the year 1840, the state constructed a weigh lock upon the Erie canal at or near the head of John street. After that, for the purpose of exhausting the water in the lock when boats passed into the same to be weighed, the state, by its duly authorized officers, agents and servants, constructed a sewer from the weigh lock through the center of John street to the Mohawk river, so that the water discharged from the lock might be conveyed into the river. At the time of the construction of that sewer, the city sewer then and there existing was taken up, and since then there has not been any other than the state sewer in that street, which took the place of the former sewer, nor any other means by which the lots along that street could be drained. The parties engaged in the construction of the state sewer requested the claimant during the construction of the sewer to point out where he, the claimant, would have openings made therein; and thereupon the claimant did point out the places for such openings which were left in the sewer accordingly, and from that time the claimant has drained his lot through such openings into that sewer. From the completion of the sewer until the year 1876, the claimant had no trouble with water from the sewer in or upon his premises until the latter year, when water came from the sewer into the basement of a store upon his premises and caused him some damage. He then gave the superintendent of the canal at Utica notice of the occurrence, and requested him to close the gate in the weigh lock which opened into the same, which request was unheeded. About the ñth and 6th days of December, 1877, the water from the sewer again came into the same basement and damaged the goods therein of the occupants, Hieber & Co., the tenants of the claimant, more than $1,200. By the terms of the lease between the claimant and Hieber & Co., he had agreed to pay them for any damage they might sustain from any back water from the sewer. The claimant settled with Hieber & Co., and paid them for their damage the sum of $1,200, receiving from them a release of all claims against him, they, however, reserving the balance of their claim for damages against the state, the total amount of which they claimed was more than $1,200.
    Thereafter Hieber & Co. duly assigned their claim for the damages so paid to them to the claimant. In December, 1877, the claimant caused the sewer to be examined -and found obstructions therein sufficient to dam up and set back the water therein, and he caused the obstructions to be removed and since then the basement of the claimant’s store has not been flooded with water. There was no proof of any contract on the part of the state with the city of Utica by which the state agreed or obligated itself to keep open and in good condition, the state sewer for the benefit of the individual property holders along the line thereof. The damages claimed by the claimant were caused by an obstruction in the state sewer by which water was forced through the claimant’s dx’aixi connecting with the sewer. Upon these and other facts not material to be stated, the board of claims decided that the claimant was not entitled to any award of damages.
    
      Seymour & Weaver, for app’lt; Charles F. Tabor, attorney-general, for resp’t.
   Earl, J.

It seems to us that the claim rejected by the board of claims is meritorious and has foundation in law. There is no conflict in the evidence and all the questions that axfise thei-eon are questions of law.

Before 1840 there was a lawful sewer in John street constructed for the benefit of owners of lots upon tliat street, and probably at their expense. Such owners had the right to drain their lots into that sewer and were lawfully doing so when the -state, in or about 1840, came there and took up that sewer axid substituted its sewer ixr the place thereof. There was no other sewer in that street but the state sewer and it was practically impossible to have any other there; and there was no way to draixx the lots upon that street except ixxto that sewer. If it had been necessary for the purposes of the state that it should have the exclusive right of a sewer in that street and its exclusive use, it would have been necessary for the state to condemn by the exercise of the power of eminent domain the interests and easements of the property owners in so much of the street as was needed for the sewer. It could not have taken the land and destroyed the right of drainage without making compensatioxx to the abutting owners.

There is no claim that the state took any condemnation proceedings, and it is clear that it did not intexid to acquire any exclusive use of a sewer in that street. It constructed the sewer not only for its use but also for the use of the lot owners. The use of the sewer for dx-aining the adjoining lots was perfectly consistent with the purposes of the state, and it is clear that all it intended to do was to substitute its sewer, a larger one, in the place of the city sewer. It cannot be assumed that it intended to do an unnecessary injury to the property owners. So, finding the drains from the adjoining lots into the city sewer the agents of the state in constructing the state sewer left openings therein for such drains and probably for other drains which had not before existed at such places as the property owners pointed out.

These openings were left not merely to give a license to the property owners to drain their lots through them into the sewer, but in recognition of an existing right of drainage, and in the discharge of a duty the state owed to the lot owners. No other view is consistent with the facts. Having thus constructed the sewer with these openings, the state was bound to use reasonable care in keeping the sewer in repair, and in its management.

From 1840 to 1876, the claimant suffered no damage from the sewer. In the latter year water came from the sewer into the basement of the claimant’s store, and the state had notice of it. The water could be set back through the drain only by some obstruction to the flow of the water in the sewer. The state took no action to repair the sewer or to remove the obstruction. In 1877, the water was again set back through the drain and the obstruction was then discovered by the claimant and removed. Thus the state failed in its duty to the claimant. It cannot be said in answer to the claim of the claimant that he would have suffered no damage if his drain had not been thus connected with the sewer, because he had the right, upon the facts as they now appear, to have his drain there, and-it was the duty of the state to keep the water which it discharged into the sewer from being dammed up therein and forced back into the drain. It owed the same duty which a city owning a sewer and charged with the duty of keeping it in repair, owes to abutting owners. Barton v. City of Syracuse, 36 N. Y., 54; Nims v. City of Troy, 59 id., 500.

Our conclusion, therefore, is that the award of the board of claims should be reversed and a new hearing ordered, costs to abide event.

All concur.  