
    William Garratt, App’lt, v. The Trustees of the Village of Canandaigua, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Municipal corporations—Not liable to property owners eor insufficiency of public improvement.
    Public officers, or a municipality charged with the conduct of an improvement undertaken and carried on partially at the expense of local property owners, are not responsible to a property owner because the work has not resulted in such benefits and advantages to him as were anticipated, or because it does not answer all the purposes for which it was originally projected, when the authorises have acted in good faith, and are not chargeable with any neglect, default or unlawful act on their part.
    Appeal from judgment of the supreme court, general term,, fifth department, affirming judgment in favor of defendant.
    
      Henry M. Field, for app’lt; Edwin Hicks, for resp’t.
    
      
       Affirming 40 St. Rep., 944.
    
   O’Brien, J.

By chapter 658 of the Laws of 1886, the trustees of the village of Canandaigua were authorized to raise money and to take and appropriate lands for the purpose of constructing a system of drainage and sewerage for the village, and also for the purpose of reclaiming wet and swamp lands in two of the adjoining towns. The act provided for the appointment of commissioners by the county court to determine and award the damages sustained by any property owner whose lands were taken or injuriously affected by the improvement, and also to assess such portion of the expense of making the improvement upon the property benefited by the drainage in proportion to such benefit as might be just. The award of damages and the assessment for benefits were both subject to revision by the commissioners upon a rehearing, and to further examination upon appeal to the county court. The plaintiff was awarded damages in the sum of $156.36, and assessed, on account of benefits supposed to follow from the improvement, $800. It does not appear that he raised any question with respect to the amount of the assessment before the commissioners or appealed to the county court

The plaintiff’s general complaint is, that while he was assessed and has paid a large sum as his contribution to the expense of the work contemplated by the statute, his lands have not been drained or reclaimed to the extent anticipated. The plaintiff’s grievance really grows out of what to him appears to be an improper exercise of the sovereign power of taxation delegated by the legislature to the officers and bodies designated in the statute. The main object of the enactment was to enable the authorities of the village to improve the sewerage system, one of the ordinary public objects for which municipal burdens are imposed. It appears that something over $26,000 was expended for the purpose, and of this nearly $23,000 was assessed upon the village at large. The plan that was finally adopted and carried out by the trustees-was to dispose of the sewage through the outlet of the lake and what is called the feeder to this outlet, and this required the removal of certain obstructions in the stream which constituted the outlet, in order to produce a more rapid flow of the water. One of these obstructions was a dam across the outlet, some four miles from the foot of the lake, which had been maintained for many years for manufacturing purposes. The power of eminent domain, also delegated by the statute, was used to remove this dam, involving, as it did, the obligation to make compensation, in comparatively a large sum, to the owner, which was paid. The balance of the work in clearing out the stream consisted mostly in-the removal of bars and other obstacles to a free flow of the water, •and in dredging and deepening the channel in some places. The statute contemplated that the removal of these obstructions would ■enure to the benefit of the owners of land along the outlet and near the foot of the lake, which had been before subject to overflow, and hence power was conferred upon the commissioners to •charge ' some part of the expense upon these lands upon the basis of the benefits conferred. What the plaintiff complains ■of is, that this power has been so exercised as to impose upoh him a considerable burden without conferring all the benefits ■contemplated when it was imposed and paid. The learned trial .judge, who was evidently somewhat impressed with the merits of the plaintiff’s claim, has not found that the removal of the obstruction in the outlet is not in some degree beneficial to the plaintiff’s farm, but he has found that the removal of the obstruction and cleaning out of the feeder and outlet and taking down of the dam, have not drawn off the water from the plaintiff’s lands to the extent that they expected, and that they are still overflowed and unfit for cultivation to a very great extent He also finds that since the completion of the improvement the rainfall in the locality has been unusually heavy, and that it does not appear precisely to what extent the lands of the plaintiff would be free from water in ordinary times and under ordinary circumstances, but that it was expected when the plan for cleaning the •outlet was adopted it would, when carried out, sufficiently drain plaintiff’s lands to enable him to till them. Is must be admitted that the trustees and the commissioners had under the statute power and jurisdiction to make the improvement and to impose •the assessment How the improvement in the drainage of the village was to be secured and how the wet lands along the outlet to be reclaimed was left by the legislature, in a great measure, to the discretion and judgment of the village authorities. The statute does not prescribe the plan or details of the work by means of which the end was to be accomplished. That was left to the judgment of the trustees and, even though the plan that was adopted was faulty and a much better plan might have been devised, still, as they acted in good faith, they could not be made responsible for the results or consequences of an erroneous judgment in that regard. Hines v. City of Lockport, 50 N. Y., 236 ; Urquhart v. City of Ogdensburg, 91 N. Y., 67.

The power to drain the lands near the village might have been conferred by the legislature for public purposes, to promote health or the like, and whether that was the motive that prompted the •enactment of the statute, or some private interest, is not now important.

Jurisdiction was conferred upon the commissioners with respect to assessments upon the lands along the outlet, for benefits to result from the drainage, subject to appeal by any party aggrieved to the county court. If it be said that the plaintiff ought not to have been assessed at all or that he has been assessed for too large a sum, the answer is that upon this question he has had his day in court

He could have appeared before the commissioners, and by evidence or argument satisfied them that the proposed plan would not when carried out result in reclaiming any of his wet lands, or certainly not to such an extent as to warrant the imposition upon him of so large a burden. He was entitled to a hearing, and to show if he could that the improvement proposed would not result in any benefit to him, and to insist that until some plan was formulated upon the basis of which the work was to be done that would result in draining the lands, no assessment should be imposed upon him. He had as good an opportunity of forming an opinion as to the effect on his wet lands of the improvement proposed as the trustees. He had the right to object to any assessment until the commissioners were convinced that what was proposed with respect to clearing out the feeder and outlet would result in improving his lands to the extent of the assessment proposed. In case the commissioners proceeded upon erroneous principles, or upon a basis that furnished no reasonable ground for the belief that any benefit to the plaintiff’s property would follow from the work proposed, or for any other valid reason, based upon the facts or the law, the plaintiff was entitled to a further hearing in the county court. As the plaintiff neither objected nor appealed, but allowed the award and assessment to be confirmed, we must assume that he, like the trustees who had been entrusted with the duty of formulating and executing a proper plan for the improvement, anticipated results from what was proposed which have not been fairly realized. That consideration, however, would not justify this court in assuming that the assessment was either erroneous or excessive as a ground for some liability against the defendant in this action. All that we ■can know now in regard to the assessment is that there was jurisdiction to make it, and ample opportunity to review it if erroneous, and that there is no finding, or request to find, that the improvement was not in some degree at least beneficial to the plaintiff’s property. Under such circumstances it must be presumed, in an independent action like this, that the assessment was fair, and based upon a proper adjustment of the benefits conferred and the burden imposed.

The part of the plaintiff’s case that, perhaps is argued with most earnestness, is the fact found that the trustees caused to be erected at the head of what is called a feeder, or large artificial channel through which the water flows from the lake into the outlet, and near the place where gates had formerly existed, to control the flow of water, a bridge and gates by means of which they are enabled to control the flow of water from the lake as they may desire. The rights and privileges conferred by the statute were to be exercised in such a way that the waters of the lake should be maintained at a height not less than the ordinary height of such water at low water mark. To this end the trustees were, by the last section of the act, authorized to erect and maintain in the outlet of the lake, and in the new channel for said outlet, locks or bulkheads with gates, and by such and other adequate means to so control and regulate the discharge of the waters as to fully comply with the provisions of the act. The plaintiff complains that the trustees do not keep the gate closed, but, on the contrary, wide open, and permit water to flow through it into the outlet to such an extent as to overflow his lands. There is no question with respect to the power of the trustees to erect and maintain the gate and control the flow of the water. The plaintiff’s claim seems to be that this power should be exercised in such a way as to lessen the flow of water in the outlet and thus relieve his lands. The bed of the outlet is the sewer through which the sewage from the village was to be carried away, and when improved in the manner contemplated by the statute, was to be and remain the property of the city.

The defendants are, therefore, using the gate to regulate the flow of the water from the lake into this sewer and how much or how little they shall allow to pass through the gate is a matter that, from the nature of the case, must, to a great extent at least, rest in their discretion. It is not alleged or found, and there is no request to find, that the defendants have omitted any duty that they owe to the plaintiff with respect to the construction of the gates, or the manner of their operation. It is not found, and there is no request to find, that in any of these particulars the defendants or their predecessors have been guilty of any negligent or unlawful act ¡Nor is there any finding or request that more water is allowed to pass through the outlet from the lake since than before the improvement, or any other act done • on the part of the defendants in making the improvement or in using the gates which increases the overflow of water on the plaintiff’s lands. It may very well be that the defendants in using the gates could favor the plaintiff by shutting off the flow of water through the outlet, but we are unable to find anything in the case to warrant us in holding that they are under any legal duty or obligation to do so. The statute does not seem to have contemplated that the improvement provided for was to lessen the flow of water into the outlet from the lake, but to furnish facilities, by removing the dam and other obstructions, for a more free and rapid flow of the water. The dam and other obstructions in the outlet were supposed to cause the overflow, and when removed it was expected the lands would be reclaimed. That these expectations have not been fully realized is, perhaps, to be attributed more to the fact that sufficient money or labor was not expended in the work of removing the obstructions and deepening and adding to the capacity of the outlet, rather than to any mismanagement or defect in the plan. What has been done seems to have been well enough directed, but the operations did not go far enough, for the purpose of completely draining and reclaiming the overflowed lands. It is the case of an improvement undertaken and carried on partially at the expense of local property owners, which,, in the end, did not confer upon them all the benefits that had been anticipated, but which result, so far as appears, is not chargeable to any wrong or negligence on the-part of the defendants. Public officers or a municipality, charged with the conduct of such a work, are not responsible to a property owner because the work has not resulted in such benefits and advantages to him as were anticipated, or because it does not answer all the purposes for which it was originally projected, when the authorities have acted in good faith, and are not chargeable with any neglect, default or unlawful act on their part To enjoin defendants from regulating the flow of the water through the gates in their own way and according to their best judgment, and to require them to exclude, by the use of the gate, all water from the lake that may overflow the plaintiff’s lands, would be to deprive them of all discretion, when, so far as appears, their action in regard to it is not unlawful, malicious or negligent The action was not, therefore, sustained, and the complaint was properly dismissed. We have examined the rulings and other questions in the case to which our attention has been called, and we find no error that would justify a new trial.

The judgment should, therefore, be affirmed, with costs.

All concur.  