
    THE CONHOCTON STONE ROAD COMPANY, Respondent, v. THE BUFFALO, NEW YORK & ERIE RAILROAD COMPANY, Appellant.
    
      Ownership of land — recitals and covenants in lease—when sufficient evidence of—
    
      Va/riance — when disregarded — Obstruction of water-cow'se — what must be shown to maintain action for—Authority from State—effect of, on liability of one acting under.
    
    This action was brought to recover damages, sustained by the plaintiff, from injuries to its road-bed, caused by the water of a stream which was obstructed and thrown back at the time of a freshet, by a bridge and embankment upon the road of the defendant. Upon the trial plaintiff introduced in evidence a lease of the defendant’s road from the defendant to the Erie Railway Company, for 490 years, reserving rents and containing a covenant for quiet enjoyment. Held, that this was sufficient, in the absence of any dispute on the trial, to establish the ownership of the road by the defendant.
    The complaint charged the defendant with constructing the bridge and embankment, while, upon the trial, it appeared that they were created by a predecessor of the defendant, and that it was liable, if at all, for continuing the same. Held, that the discrepancy between the complaint and the evidence was a mere variance, and not a failure to prove the substantial cause of action set forth in the complaint, and that it was properly disregarded.
    Upon the trial the defendant offered to prove by an expert, that the abutments of the bridge were properly and skillfully placed, and sufficient to discharge the water in time of flood, which evidence was, against the objection and exception of the defendant, excluded. Held, that this was error. If the" bridge was built in a careful and skillful manner, with all necessary openings to discharge all the water flowing down the creek in any freshet which might reasonably be expected, the defendant was not liable.
    
      Bellinger v. JY. Y. O. B. B. Oo. (23 1ST. Y., 42) followed.
    Where one has the sanction of the State for what he does, unless he commits a fault in the manner of doing it, he is completely justified.
    Appeal by the defendant from an order of the Special Term, denying a motion made, on behalf of the defendant, for a new trial.
    The action is to recover damages, sustained by the plaintiff, from injuries to its road-bed, caused by a flood in Mead’s creek, in the town of Erwin, and county of Steuben, in the years 1864 and 1865. It is alleged in the complaint that the defendant built a bridge over Mead’s creek, and made an enbankment on each side of the creek, through the low lands adjoining the creek, so as, in times of floods, to obstruct the flow of the water and turn it upon the plaintiff’s road; it also averred that “ the embankment was wrongfully and unskillfully constructed, and that no passage way or culvert was left or provided for the water to pass through, where it had been wont to flow in times of high water.”
    On the trial it was proved that neither the bridge nor the embankment was built by the defendant. They were built in 1851 or 1852, by the Buffalo and Conhocton Valley Railroad Company. The defendant was not, at that time, in existence, and was not organized until the 20th day of October, 1857. The railroad had, previous to that time, been built by the Buffalo and Conhocton Valley Railroad Company, and was sold on the 28th day of October, 1857, under a judgment of foreclosure of a mortgage. On the 27th day of February, 1863, the defendant leased the railroad to the Erie Railway Company for the period of 490 years, from the 1st day of May, 1863, reserving rent, and covenanting for quiet enjoyment, etc. The Erie Railway Company, on the 1st day of May, 1863, took possession of, and thenceforth operated, the railway under that lease; Mr. Fiske was the assistant superintendent of the Erie Railway. Company, and had charge of the railroad as such assistant superintendent, under the lease, for the Erie Railway Company. The injuries complained of occurred in May, 1864, and in March, 1865, while the Erie Railway Company was in possession of the railway, operating it under the lease. Mr. Fiske had been superintendent of the railroad for the defendant from November, 1857, to the 1st of May, 1863. . The counsel for the defendant, at the close of the plaintiff’s case, moved for a nonsuit, on the ground that the plaintiff had failed to prove that the defendant erected the embankment or bridge, as averred in the complaint; that it had been proved the defendant was not in existence at that time, and did not come into existence for more than five years after the road was built, and that it was originally built in the locus vn quo precisely as it was when the alleged injuries occurred ; that under such circumstances, the plaintiff must allege and prove notice by it to the defendant of the existence and extent of the nuisance, and request an abatement of it. The defendant proposed to prove by an expert that the abutments of the bridge were properly and skillfully placed, and sufficient to discharge the water coming down the creek in times of flood. The jury found a verdict for the plaintiff for the sum of $1,550. A motion was made by the defendant, on a case contain* ing all of the evidence, and on exceptions, for a new trial, which was denied. The Commission of Appeals, at the March term in 1873, decided on an appeal from a judgment rendered in favor of the plaintiff on a former trial in this action, that the plaintiff, in order to recover, must show notice, or a knowledge on the part of the defendant of the existence of the nuisance, but that no request to abate it was necessary, and reversed the judgment. (Oonhocton Stone Road Co. v. The Buffalo, New York a/nd Erie Ra/ilroad Company, 51 N. Y., 573, 582.)
    
      E. R. Bacon, for the appellant.
    As the railroad and bridge, in question, were built in pursuance of legislative authority, for a public purpose, the party building them is liable, in such case, for damages arising therefrom, only when such damages result from the want of due skill and care in placing the road and bridge with reference to any damages to be reasonably anticipated from floods. (Bellinger v. The New York Cen. R. R. Co., 23 N. Y., 42; Radcliff v. The Mayor, etc., of Brooklyn, 4 Com., 195, 200; Attorney-General v. Hudson Rimer Railroad, 1' Stockton [N. J.], 526; Newark Plank-road Company v. Elmer, id., 754; Selden v. The Delaware and Hudson Canal Company, 29 N. Y., 634, 642.) The complaint contains the allegations requisite to maintain an action against the defendant if it had been the creator of the nuisance. • It does not contain fhe averments requisite and necessary to make out a right to recover against the defendant in the relation the evidence shows it stood to the railroad. (McDonough v. Gilman, 3 Allen, 264; Penruddock's Case, Coke, b. 100 [part 5]; Dodge v. Stacy, 39 Verm., 560, 577; Angell on Water Courses, § 403; 51 N. Y., 573, 576, and cases there cited; Pierson v. Glean, 2 Green. [N. J.], 36.) Evidence of the engineer as to the construction of the bridge was improperly excluded. (Bellinger v. N. Y. C. R. R. Co., 32 N. Y., 42.)
    
      Geo. B. Bradley, for the respondent.-
    The defendant, having demised the railroad by lease, reserving rent and containing covenants of warranty, is clearly liable for the injuries sustained by plaintiff. (Waggoner v. Jermaine, 3 Denio, 306; Brown v. Cayuga & S. R. R. Co., 2 Kern., 486; Brady v. Weeks, 3 Barb., 161; Moody v. Mayor, etc., of N. Y, 43 id., 282.) The demise affirms the continuance of the nuisance, and it is deemed a continuance by the lessor. (Brady v. Weeks, 3 Barb., 161.) And the continuance is, in law, a fresh nuisance on every occasion when injury is sustained. (Conhocton Stone Boad Co. v. B., N. Y. & E. R. R. Co., 52 Barb., 390; Vedder v. Vedder, 1 Denio, 261; Beckwith v. Griswold, 29 Barb., 291; Staple v. Spring, 10 Mass., 74, 75.)
   Talgotx, J.:

This case has once been .to the Court of A ppeals. On that occasion the Commission of Appeals held and decided that the defendant, not being the party which originally constructed the bridge and embankment (the effect of which in damming up, or setting back, the water of Head’s creek, upon the road of the plaintiff, is complained of), was not liable for the continuance of the nuisance, without notice to it (the defendant) of the existence of the nuisance. On the trial which is set forth in this case, we think the plaintiff did give evidence of such notice. It was conceded by the defendant, on the trial, that Henry C. Fiske was the defendant’s superintendent of this railroad, for the space of time between November 1, 1857, and the 1st of Hay, 1863, at which time the defendant surrendered the possession of the road to the Erie Railway Company, as the lessee of the defendant; and that said Eiske thereupon became assistant superintendent of the said Erie Railway Company, in charge of the road in question down to a period subsequent to the commencement of the action. And testimony was given, tending to show that Hr. Eiske was notified of the difficulty as early as 1861 and 1862, while he was, as before stated, the superintendent of the defendant; and that notice was given by a director of plaintiff’s company, which did not appear on the former trial. The counsel for the defendant objects that no evidence was given to show that the defendant was the owner of the fee of the road. This fact seems to have been assumed on the trial. And it was also proved that the defendant had assumed to lease the road and all its appurtenances to the Erie Railway Company for é90 years, reserving rent, and covenanting for quiet enjoyment, and, in the lease, claiming the road and appurtenances as “ its,” the defendant’s, road, etc. We think this was sufficient, in the absence of any dispute on the trial as to the ownership of the defendant. The complaint charges the defendant with having originally constructed the bridge and embankment, and thus created the nuisance ; whereas, in fact, the nuisance was created by a predecessor in the title, and the defendant is held liable as the owner for continuing the nuisance. These facts all plainly appeared on the first trial, and no objection to the recovery on this ground, appears to have been taken by the counsel or the court. We think the complaint was amendable in this particular, and that the discrepancy between the complaint and the evidence, was a mere variance, and not a failure to prove the substantial cause of action. But an exception was taken by the defendant to the ruling of the court, whereby the evidence of experts as to the care and skill with which the bridge and apertures were constructed, which, under the decision of the Court of Appeals, in the case of Bellinger v. The N. Y. General R. R. Co., we are constrained to regard as fatal to the verdict. In that ease, which, as we understand it, is entirely analogous to the present, the railroad company was sued to recover damages for “ negligently, wrongfully and improperly” constructing its railroad across the West Canada creek, and across the low lands forming the valley of the said creek, by means of which the plaintiff’s lands in the valley, on - the east side of said creek, were repeatedly overflowed, and the soil, fences and manures washed away,” etc. The judge at the trial in that case, had instructed the jury that the company was not bound to guard against every possible contingency, but they were bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur in the stream.” This, Judge Djenio, delivering the opinion of the court, held to be a statement of the rule with substantial accuracy. In that case, as in this, evidence was given, tending to show that the lands in the neighborhood had been at times of freshet overflowed prior to the erection of the structures of the defendant. And the principle laid down in the case, is, that where one has the sanction of the State for what he does, unless he commits a fault in the manner of doing it, he is completely justified.

It seems to be well settled that no action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water, or water collected by thaws and freshets, and which had formerly been accustomed to flow over the land upon which the structure has been erected. It is only for interfering with and obstructing a defined water-course, whereby injury is occasioned to another, that the defendant can be held liable.* If therefore, the water which did the damage in question, in the years 1864 and 1865, was not caused to be set back by the defendant’s interference with Mead creek, but was occasioned by the overflow of that stream from points above the defendant’s bridge; or if the defendant’s bridge over the stream was built in a careful and skillful manner, with all necessary openings to discharge all the watér flowing down the creek, in anyfreshet which might reasonably be expected, then, according to Bellinger's case, above referred to, the defendant was not liable. The gravamen of the complaint in this case, is, as in the case of Bellinger, the alleged unskillfulness with which the structures of the defendant were constructed. And the complaint seems to be based upon the theory that the defendant is bound, by means of culverts or otherwise, to afford a passage across its land for the escape of water which collected on the surface of the adjacent land, and which had been accustomed to flow over the surface of the defendant’s land, whether this collection of water was occasioned by any interference on the part of the defendant, with the defined or recognized stream or not. We think this is a mistake, upon the authorities before .cited, and that the real issue between the parties, was, whether sufficient openings had been left to discharge all the water which might have been reasonably expected to flow down Head’s creek, during any high water or freshet to which that creek was ordinarily subject. And we are unable to distinguish this case, upon any clear principle, from that of Bellinger’s, in which the Court of Appeals ordered a new trial upon the sole ground, that the opinion of an expert, as to the care and skill with which the structures across West Canada creek had been erected, was excluded.

Order denying new trial reversed, and new trial ordered, costs to abide the event.

Present—Hullin, P. J., and Talcott, J.

Ordered accordingly. 
      
       23 N. Y., 42.
      
     
      
       See Parks v. The City of Newburyport, 10 Gray, 28; Dickinson v. Worcester 7 Allen, 19; Swett v. Cutts, 50 N. Y., 439; Goodale v. Tuttle, 29 N. Y., 466; Angell on Water-courses, § 4.
     