
    Thomas Ashberry, Resp’t, v. The Town of West Seneca, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    Highways—Commissioner has no eight to obstruct ditch so as to OVERFLOW ADJACENT LANDS.
    Defendant’s highway commissioner constructed an embankment in a ditch alongside of a highway for the purpose of preventing the overflow waters of a creek which found their way into the ditch from washing out the highway. It was shown that prior thereto the ditch was sufficient to carry off the overflow and surface waters, and that since then the effect of the embankment has been to set back the overflow waters on plaintiff’s land. Held, that the highway commissioner had no right to put an obstruction in the ditch, the immediate effect of which would be to precipitate the waters of the creek in times of freshet on plaintiff’s land, and that defendant was liable therefor.
    Appeal from a judgment entered in Erie county on the 13th day of November, 1889, for $300 damages, besides costs; also from an order denying the defendant’s motion for a new trial made upon the minutes of the court.
    
      Abram Bartholomew and Miles 0. Bartholomew, for app’lt; Stephen Lockwood, for resp’t.
   Macomber, J.

The plaintiff, who is the owner of a farm lying on the west side of the highway known as the north and south road in the town of West Seneca, brings this action to recover ■damages by reason of the negligent maintenance of an embankment or obstruction by which his land was needlessly overflowed by water.

A natural water course, known as Smokes Greek, runs through the plaintiff’s lands in the same general direction as the highway, though with many bows and several sharp turns. On the east side of the road there is a ditch beginning at the creek and terminating at a culvert, a distance of about twelve hundred feet. At a point about two hundred feet from the creek an embankment was constructed in this ditch by the defendant's commissioner of highways in the year 1887, which has since been maintained, for the-purpose of preventing escaping flood waters of Smokes Creek,, which found their way to the ditch, from washing out and destroying the highway. There was evidence to sustain the contention of the plaintiff, that prior to that time the ditch was sufficient to carry off the surplus waters of the creek, overflowing and coming into the ditch, as well as the surface waters, and that since its-construction the effect has been to set back upon the plaintiff some of the overflow waters of Smokes Creek, which otherwise-would have passed off through the ditch.

It is claimed by the counsel for the defendant, that the embankment did not interfere with the proper drainage of the surface water, and that such construction was necessary as a means of preventing the creek from overflowing and washing away the-highway and rendering public travel impossible.

It was the duty of the defendant to keep the ditch and culvert, open so as, to carry off the water naturally coming there. Its-highway commissioner had not the right to put an obstruction in the ditch, the immediate effect of which would.be to interfere with the waters of Smokes Creek, and to precipitate them, in times of freshet, upon the lands of the plaintiff. The Rochester White Lead Co. v. The City of Rochester, 3 N. Y., 463; Barton v. The City of Syracuse, 36 id., 54; Byrnes v. The City of Cohoes, 67 id., 204.

We think the damage to the plaintiff was proximately caused by the unlawful obstruction of the ditch in question, and that., consequently, the judgment should be affirmed.

Dwight, P. J., concurs; Corlett, J., not sitting.  