
    Bertha Egener, Respondent, v. The New York and Rockaway Beach Railway Company, Appellant.
    
      Raib'oads — right to obstruct the drainage of surface water from, the land of an adjoining proprietor — damages caused by loose stones rolling down an embankment.
    
    The rule of the common law and that of the civil law differ as to the right of drainage of surface water, as between the owners of adjacent land.
    By the civil law the question is governed by the law of nature, and the lower proprietor is. bound to receive the natural flow of surface water from the land above him, while at common law the relation of dominant and servient tenements does not apply to such a case, and the lower proprietor may raise the surface of his lands and make erections upon it, although the effect may be to obstruct the flow of surface water from the lands above, to the injury of the owner of such lands.
    
      Semble, that an exception to the common-law rule might exist in hilly regions, where, from the natural formation of the ground, large volumes of water might be forced to seek a channel through narrow gorges or valleys.
    A railroad corporation, in the absence of negligence and unskillfulness in the construction of its railroad, is not liable to an owner of land for an injury resulting from the overflow of surface waters occasioned by the obstruction caused by the roadbed.
    In an action brought to recover damages for trespasses and for an injunction,, it appeared that the plaintiff owned land which adjoined the railroad of the defendant,' whose railroad tracks, in October, 1891, were.suppor.ted by a trestle-work of wood, during which month the defendant filled in the trestlework with earth and stone and constructed a solid embankment for its roadbed; that before this work was done the surface water from the plaintiff’s premises flowed upon the defendant’s premises and passed through the trestlework to the westward, but thereafter the embankment interrupted this flow of surface water and caused it to accumulate upon the plaintiff’s property, and that during a severe storm largó stones were washed from the" embankment against the plaintiff’s house by which it was damaged.
    The court awarded a judgment for past damages and also an-injunction which restrained the defendants from the further maintenance of the embankment unless it took proper .means,, by way of culverts and drains, to prevent the further casting of stones, earth and water upon the plaintiff’s premises, and to prevent the damming up and accumulating of' surface water.
    
      .Held, that, in so far as the judgment awarded damages for injuries caused by stones which had become loosened by the rain and had rolled down upon the plaintiff’s house, it was maintainable;
    That, in so far as it awarded an injunction, it was erroneous;
    That, unless there were some exceptional physical features in that locality, the defendant had a right to construct an embankment even though its effect might be to pr.event drainage from the lands of the upper proprietor from passing away in the manner which it had done before the embankment was constructed
    Appeal by the defendant, The Hew York and Rockaway Beach Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county .of Queens on the 22d day of October, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Alfred A. Garcfoier and William J. Kelly, for the appellant,
    
      K. W. Tyler and WilUam L. Mathot, for the respondent.
   Brown, P. J.:

The plaintiff is the owner of land, in Queens county which adjoins the defendant’s railroad. Prior to October, 1891, the railroad tracks were supported by a trestlework of wood. During that month the defendant filled in the trestlework with earth and stone and constructed a solid embankment for its roadbed.

The court found that prior to the erection of the embankment the surface water from the plaintiff’s premises flowed therefrom upon the defendant’s premises and through the trestlework to the westward. The embankment interrupted this flow of surface water and caused it to accumulate and stand on plaintiff’s property. During a severe storm large stones were washed from the embankment against the plaintiff’s house, breaking the walls thereof and causing it to be flooded with water.

The judgment appealed from awarded the plaintiff $250 for damages sustained prior to the trial, and from and after the period of sixty days from the date of the service of the judgment, enjoined "the defendant from the further maintenance of its embankment, except upon the condition that it cause proper means to be taken (such as culverts, sluiceways, side drains and passages for water or other proper appliances), to prevent the casting upon the plaintiff’s premises of stones, earth and water, and to prevent the damming up . and accumulating by said embankment, of surface water upon said premises.

The amount awarded to the. plaintiff for damages was fully sustained by the proof, and the. conclusion was permitted that the injury to the building was primarily caused by the stones and rocks which had been permitted to lie loose upon the embankment and which, loosened by the rain, rolled therefrom and broke through the wall of the house. This, result, was attributable to the negligent, and unskillful manner in which the embankment had been constructed and maintained, and for the injury thus inflicted the defendant is liable. . • '

There is no ground, therefore, we, think, to disagree with the trial •court in the disposition made, of this branch of the ease.

We shall, therefore, confine our consideration of the case to a review of that part of the judgment which enjoined the defendant, from, maintaining its; embankment., except upon the condition that it construct drains to carry off the surface water. As stated by the learned trial judge, the rule of the common and civil law differs as to the right of drainage of surface waters between owners of adjacent lands, and the decisions■ of the courts of the different States of this country are not in harmony upon the question.

By the civil law the question is governed by the law of nature, and the- lower proprietor is bound to receive the natural flow of surface-waters from the land above him. But by the common law the relation of dominant and servient tenements does not apply between owners of adjacent lands in respect to surface waters, and the lower proprietor may raise the surface of his land and make erections thereon, although the effect thereof may be to obstruct the flow of surface water from the lands above to the injury of the ■owner thereof.

- In Barkley v. Wilcox (86 N. Y. 140) the Court of Appeals treated this question as an open one in this State, and in an opinion which reviewed many authorities held that the rule of the common law was most consonant with the demands of justice ' and the one best adapted to the conditions of our society. That was an action, however, between private individuals, and at the close of the opinion the court stated that it did not mean to say that there might not be cases which, owing to special conditions and circumstances, should be exceptions to the rule declared.

The learned judge who decided this case was of the opinion that it was one that should be excepted from the operation of this rule.

■ With that-conclusion I am unable to agree, as 1 think it is opposed to the decided weight of authority upon the question presented. Hearly all the cases cited by the respondent to sustain the judgment are-from the courts of States where the rule of the civil law prevails, and for that reason need not to be referred to.

The Missouri cases cited (McCormick v. K. C., St. J. & C. B. R. R. Co., 70 Mo. 359 ; Shane v. K. C., St. J. & C. B. R. R. Co., 71 id. 237) as well as some earlier cases in that State were, however, distinctly overruled in the late case's of Abbott v. K. C., St. J. & C. B. R. R. Co. (83 Mo. 271), and Jones v. St. L., I. M. & S. R. Co. (84 id. 151).

■ The facts of Abbott's case-were very similar to those in the case before us, and the subject was very fully discusséd in the opinion of the court. After reviewing many reported cases in Missouri and other States, the court unanimously held that a railroad corporation, in the absence of negligence and unsldllfulness in the construction of its roadbed, was not liable to a land owner for injury from the overflow of surface waters occasioned by the obstruction of the roadbed. The same rule is applied between railroad corporations and adjoining individual owners in Kansas: Atchison, Topeka Santa Fe Railroad Co. v. Hammer (22 Kans. 763); Kansas City & E. R. Co. v. Riley (20 Am. & Eng. R. R. Cases, 116). In Nebraska: Morrissey v. C., B. & Q. R. R. Co. (58 Am: & Eng. R. R. Cases, 622). In Indiana: Cairo & Vincennes R. R. Co. v. Stevens (73 Ind. 278). In Minnesota: Pflegar v. H. & D. R. Co. (28 Minn. 510). In Wisconsin: O’Connor v. Railway Co. (52 Wis. 526); Johnson v. C., St. P., M. & O. R. Co. (80 id. 641). In Maine : Greeley v. Maine Central R. R. Co. (53 Maine, 200); Morrison v. B. & B. R. R. Co. (67 id. 353), and in Massachusetts: Walker v. Old Colony & N. Ry. Co. (103 Mass. 10); Cassidy v. O. C. R. R. Co. (141 id. 174).

Coming to our own State, the rule was applied in Waffle v. N. Y. C. R. R. Co. (58 Barb. 413), and in Wagner v. L. I. R. R. Co. (2 Hun, 633).

In the Wagner case the facts were very similar to the case at bar. The plaintiff’s claim was that the defendant could not lawfully make any embankment on its own land which would obstruct the natural flow of surface water, but was bound by means of culverts and drains to provide for the disposal thereof.

This claim was overruled and a judgment in favor of the plaintiff was reversed.

I do not deem it essential to a proper discussion of the questions presented to refer to the cases relating to the interference with natural watercourses, nor to cite further, authorities relating to the right of surface drainage between adjoining owners who are private individuals. The authorities upon the latter question are too numerous to be cited within the limits of an ordinary opinion, and they will be found referred to in the opinions of the cases I have cited.

I have referred to the cases against railroad corporations exclusively for the purpose of showing that in no instance before this case was decided has it been held that such corporations were to be deemed exceptions to the general rule of the common l'aw which permits a lower proprietor to obstruct the flow of surface water from the higher lands surrounding him.

I do not think that the special conditions and circumstances alluded to by the Court of Appeals in Barkley v. Wilcox (supra) had reference to the character of the owner of the lower estate or the business there conducted, but to the character of the formation and use of the surrounding territory from which the surface water should flow. (Palmer v. Waddell, 22 Kans. 352.) Such was the opinion of Chief Justice Beasley, expressed in Bowlsby v. Speer (31 N. Y. Law, 351). After stating the general common-law rule that no right of any kind can be claimed in the mere flow of surface water, and that neither its retention, diversion, repulsion or altered transmission can cause an actionable injury, he said: “■ How far it may be necessary to modify this general proposition in cases in which in a hilly region, from the natural formation of the surface of the ground, large quantities of water in times of excessive rains or from the melting of heavy snows, are forced to seek a channel through gorges or narrow valleys, will probably require consideration when the facts of the case shall present the question. It would seem that such anomalous cases might reasonably be regarded as forming exceptions to the general rule.”

And in Hoyt v. The City of Hudson (27 Wis. 656) Chief Justice Dixon, after quoting this passage from Judge Beasley’s' Opinion, said : “ This exception or suggested exception seems sound and just. The rule itself is established in favor of agriculture and of of the right of every-owner to make the most profitable use of his own land. B ut where in such exceptional cases it appears that considerable tracts of land are drained through ravines or narrow valleys and would otherwise be submerged or greatly injured by the accumulation and presence of surface water, so that the rule would operate adversely to the interests of agriculture and be productive of more harm than good, it would seem that it ought to give way or its application be suspended.”

The case of Palmer. v. Waddell (22 Kans. 352) was one of the character here mentioned,, but the Supreme Court of that State, in K. C. & E. R. R. Co. v. Riley (supra), expressly refused to extend the exception to a case of the obstruction of any ordinary flow of surface water by a railroad embankment, saying of Palmer v. Waddell, that it was “ an extreme case and is limited to surface water from hilly regions or high bluffs draining considerable tracts of land through a gorge or ravine.”

Exceptions founded upon the character of the land seem just, as it limits the operation of the rule to the obstruction and drainage of waters made necessary by the reasonable use and improvement of the lower estate. But there is nothing in the business of a railroad corporation that should deprive it of the benefit of the rulé where the obstruction is not wanton or unnecessary. Such corporations hold title to their land with the same rights and obligations of ownership as a private individual. It is. essential to the proper conduct of the business of a railroad and the safety of the public that the roadbed should be constructed in a solid and substantial manner and as nearly level as possible. This necessity demands that hills be leveled and hollows and depressions filled up,, and the stoppage of the flow of surface water necessarily follows. This condition is so well known that it must have been within the. contemplation of the Legislature in authorizing the creation of such corporations and defining their powers. The omission to impose any obligation upon such corporations in reference to surface drainage other than such as would flow from their ownership of land indicates quite clearly to my mind that it was not intended that they should form an exception to other land owners in respect to the Obligation in reference to the disposal of surface water. If the railroad crossed a gorge or ravine which drained a large territory, a case would probably be presented which would not be held to be justified in erecting a solid embankment, but would be bound to construct a culvert and permit the water to follow its natural channel. But where such conditions do not prevail, I think they are subject to the same rule as applies to the private owner.

Moreover, in view of the rule of law prevailing in this State, there would be serious objection to compelling the defendant to conduct away the surface water by means of drains, ditches and culverts.

The rule is quite well settled that an owner of land cannot, by drains or other artificial means, collect surface water into channels and discharge it upon the land of his neighbor. (Noonan v. The City of Albany, 79 N. Y. 475.)

This is the rule hoth of the civil and common law. I do not see, therefore, how the defendant can he compelled to carry off the water that flows from the plaintiff’s lands hy means of drains and sluiceways. Where is it to he discharged ? Not on the next lower proprietor certainly. For such an act the defendant would he liable. (Hogenson v. St. Paul, M. & M. R. R. Co., 31 Minn. 224.)

It is quite plain, I think, that in a jurisdiction where the common-law rule prevails that it must be applied to all adjoining owners of land, no matter what their character or business, unless the formation of the territory is such that the rule would operate adversely to the interests of a large number of persons. •

There is nothing in the testimony which brings this case within" this exception to the rule, and any injury sustained by the plaintiff which arises solely from the setting back upon her property of surface water must be regarded as dam/i%um absque- injuria.

The judgment, so far as it restrains the defendant from maintaining its embankment in front of the plaintiff’s premises, except upon the conditions therein stated, must be reversed.' So far as it awards damages for past injury it is affirmed, without costs.

All concurred, except Bartlett, J., who dissented from that part of the, decision directing a reversal, and Cullen, J., not sitting.

Judgment "reversed, so far as it restrains defendant from maintaining its embankment in front of plaintiff’s premises. So raías it awards damages for past injury judgment affirmed, without costs.  