
    Henry Moody, Respondent, v. The Village of Saratoga Springs, Appellant.
    
      A village is Viable to one whose stream is polluted by village sewage—when an act authorizing an extension of a village sewage system is a village, and not a Slate, woi'h—a nuisance cannot be justified thereby
    
    The. purpose of chapter 149 of the Laws of 1885, providing for the extension of the main sewer of Saratoga Springs, was to promote the interests of that village, and the village is liable to the owner of premises near a creek, into which the extension discharged, for the injuries resulting from the pollution of air and water caused by such discharge.
    The extension of the village, sewage system under that act _ is a village, not a State,- work, and the village, and not the State, is liable for the consequences thereof.
    An act which authorizes the extension of a sewer authorizes its use, but such - use must not result in a nuisance, or occasion injury to the legal rights of others.
    Appeal by the defendant, The Village of Saratoga Springs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of October,. 1896, upon the'decision of the court rendered after a trial at the Saratoga Special'Term.
    The action was brought by the plaintiff to restrain the defendant from discharging sewage through-its sewer into the Kayaderosseras creek near .the. plaintiff’s house, and premises, and thereby polluting the stream and the air. to the plaintiff’s injury, and for damages for past injuries.
    The judgment awarded such damages, and also an injunction, suspending the operation of tlie injunction, however, for one- yean
    Á., W. ¡Shepard and O. II. /Sturges, for- the appellant.
    
      .Edgar T. Brackett, for the respondent. •
   LANDON,. J.:

The village does not contend .that the plaintiff has not been injured by the offensive matter. discharged. from the sewer, but claims that it is not liable therefor. The village, prior to 1885, constructed its system of sewers with .the final discharge from the ' main sewer four and one-third miles distant from the .plaintiff’s premises. By chapter 149 of the Laws of 18-85 commissioners were, appointed with power, to extend the main sewer from its terminus to such other terminus as the commissioners should select, at the expense' of the village.. The commissioners, in pursuance of the act, 'thereupon extended" the main sewer to- the creek near the plaintiff’s house and.lands; the sewage of the village was thereafter discharged through - the extension into the creek, thus producing the nuisance against which, the judgment appealed from affords the plaintiff relief. • .

The village contends that" the extension of the sewer was the act of the State and not'-its act, and, hence, that it is not liable,

Such contention is not new. ■ No doubt if the manifest purpose of chapter 149, Laws of 1885, had been to enable the State to utilize the sewage to- fertilize its own lands, or to give public- instruction in such use,, or effect some purpose foreign .to any corporate purpose or special benefit to the village of Saratoga Springs or its people, the State, and - not the villagé, should be answerable for the resulting-nuisance to the plaintiff. (Maxmilian v. Mayor, 62 N. Y. 160; Tone v. Mayor, 70 id. 158; Ham v. Mayor, Id. 460; N. Y. & B. S. M. & L. Co. v. City of Brooklyn, 71 id. 580; Ehrgott v. Mayor, 96 id. 265.) Or if the injury done to the plaintiff was caused by some act ultra vires of the commissioners, the village might not be liable. (Smith v. City of Rochester, 76 N. Y. 506.)

But it is made a part of the corporate duty of the village of Saratoga Springs, by various acts, to provide and maintain a system of sewers, and this act of 1885 by its 3d section, while it authorizes the commissioners “ to construct an extension of the main sewer .in such manner as they shall deem expedient,” significantly adds the words and for the interests of the village of Saratoga Springs.” Other parts of the act indicate that the purpose of the sewer extension was to promote such interests, and the nature of the case imports such a purpose.

Moreover, the village has adopted the extension which the act commits to its care and custody. This is the fair inference from the evidence.

For the six years following the extension the village has used this extension and permitted its sewage to be conveyed by it and discharged into the creek near the plaintiff’s house and premises. Within the doctrine of the above cases and others, the village is liable. (N. Y. Central & H. R. R. R. Co. v. City of Rochester, 127 N. Y. 591; Stoddard v. Village of Saratoga Springs, Id. 261; Chapman v. City of Rochester, 110 id. 273; Noonan v. City of Albany, 79 id. 470; Bolton v. Village of New Rochelle, 84 Hun, 281.)

The defendant urges that, as the extension was authorized by the act and was not negligently or unskillfully executed, the defendant is not liable. The plaintiff does not complain of the construction, but of the use which is made of it to his injury. The act authorizing the extension undoubtedly authorizes its use, but not such use as results in a nuisance. (Seifert v. City of Brooklyn, 101 N. Y. 136; N. Y. C. & H. R. R. R. Co. v. City of Rochester, supra; Hooker v. City of Rochester, 37 Hun, 181; affd., 107 N. Y. 676.)

Assuming the lawfulness of the construction and the right to its use, the use, as was said in Booth v. R., W. & O. T. R. R.. Co. (140 N. Y. 267, 275), after commenting upon many cases, must not be to the injury of any legal rights of another. The plaintiff’s legal right Jb áir and water in .the purity that existed before the. defendant rpolluted:them by sewage: cannot be questioned. .If the defendant by any right of eminent domain can take- the right from the- plain-jiff, it. miist do so upon making just compensation.

The judgment should be affirmed, with' costs.

AH’concurred.

Judgment affirmed, with costs. . ■  