
    Abraham D. Covert, Respondent, v. The City of Brooklyn, Appellant.
    
      Watercourses — construction, of an aqueduct causing percolation — what is a proper sulyeci of expert testimony.
    
    In an action brought to recover damages for the diversion of water from a stream which fed the mill pond of the plaintiff, it appeared that the defendant constructed an aqueduct across the stream and that the sinking of its foundations and the construction of a culvert caused the water to be drained off by percolation.
    
      Meld, that the plaintiff was entitled to maintain the action ;
    That while the defendant had a right to use its own land and was not liable for intercepting underground springs, which might otherwise reach the stream, it was liable, if its structures obstructed the water after it had become a part of the running stream;
    That it was competent to put a hypothetical question to civil engineers, assuming the facts testified to relative to the drying up of the stream, the manner in which the aqueduct was constructed across the stream, and the temporary means adopted to keep out the water during the construction of the foundations of the aqueduct and. culvert, and to ask what, in their opinion, was the cause of the dryingVp and "disturbance of the stream.
    Appeal by the defendant, The City of Brooklyn, 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 2d day of May, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 28th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      William G. Cooke, for the appellant.
    A. N. Weller, for the respondent.
   Cullen, J.:

This is an action to recover damages for the diversion of water from a stream and mill pond owned by the plaintiff. The defendant constructed an aqueduct across the stream which supplied the water to the mill pond. It is not claimed that the course of the stream itself was diverted into the aqueduct, but it was contended that, by sinking the foundations for the aqueduct and the construction of a culvert, the water in the stream was drained off by percolation.

That such an injury is actionable seems settled by authority. (Van Wycklen v. City of Brooklyn, 118 N. Y. 427, and Covert v. Cranford, 141 id. 521.) The trial judge instructed the jury very clearly that the defendant had, the right to improve or use its own land, and so far as by such improvement it intercepted underground springs which otherwise might reach the stream, it was not liable; that to authorize a recovery the plaintiff must establish that the defendant’s acts or structures had diverted or obstructed the water after it had become part of the running stream. This was a correct exposition of the law on the subject. There was evidence to sustain the claim of the plaintiff that the water was diverted after it became part of the stream, and the verdict of the jury must be taken as deciding that fact in the plaintiff’s favor. The motion for a non-suit was, therefore, properly denied.

On the trial the plaintiff sought, by the testimony of experts, to prove that the building of the aqueduct had caused the diversion of water from the stream. For this purpose he called civil engineers, and a hypothetical question was put to them which assumed the facts testified to as to the drying up of the stream, the method of the construction of the aqudeuct across the stream, and the temporary means or appliances adopted to keep out the water during the construction of the foundations of the aqueduct and culvert. On ' this assumption the witnesses were asked ' what in their judgment was the cause of the drying up and disturbance of this . stream of Water. To this question the defendant objected and the witnesses were allowed to answer, over the defendant’s objection and exception, that the construction of the conduit line had been the . cause of the disturbance of the stream. There is no claim that the witnesses of whom this question was asked were not competent experts, nor is there any claim that the facts assumed in- the hypothetical question were devoid of evidence to sustain them. The contention of the defendant is that the cause of the diversion of the water was not properly the subject of expert judgment, but was to be determined by the jury solely on the facts attending the construction of the aqueduct and the disappearance of the water. This contention cannot be sustained. In Van Wycklen v. City of Brooklyn (supra), an action entirely similar to the one now before us, where it was claimed that the diversion was effected by driven wells, the witness was asked : “ Was it possible for you to take in those pipes any water out of Spring creek ?” This question was excluded. It was held by a divided court that the exclusion was proper. An examination of the prevailing opinion, however, shows that its exclusion was not sustained on the ground that the subject was not one for expert evidence, but because an answer would have been a mere naked opinion upon the precise question which the jury were to decide. It is there said by Judge Brown that if the question had called for a statement by the witness of any adequate cause within his knowledge for the disappearance of the stream it would have fallen within the principle of the, Moyer case and have been admissible. Moyer v. N. Y. Central, etc., R. R. Co. (98 N. Y. 645) was an action to recover damages to flat lands along the Mohawk river, alleged to have been caused by an embankment constructed in the river by the defendant. An engineer examined on the part of the defendant was asked whether, in his opinion, there were any adequate causes for the scouring of the water on the plaintiff’s land. This question the Court of Appeals held competent, as it was put to the witness on the assumption of a hypothesis which there was evidence in the case to sustain. The question in the case at bar seems to have been framed in exact accordance with the lines 'of the two cases cited. Its admission was, therefore, proper.

We are of opinion that the amount of the verdict exceeds the damages proved by the plaintiff. The plaintiff contends that the verdict should not be set aside on this ground unless it appears to have been influenced by a prejudice or passion on the part of the jury.” The rule invoked has no application to a case of this character. The action was for injury to property, and there was no element of malice or of wantonness in the defendant’s act justifying the recovery of anything more than the actual damages proved. The plaintiff’s son testified that the gross receipts of the mill had reached $1,400 per year; that $100 a year would equal the expenditure made for help additional to his own and for repairs. He further testified that his own time was worth $3 a day. On this testimony the net profit of the mill would be $400 a year. For a period of three years and a half, the time from the commencement of work on the aqueduct to the bringing of the action, this would amount to $1,400. It would have been probably more satisfactory had the plaintiff shown the annual rental value, of the mill rendered useless, and it may be that such evidence would have -established a larger claim on his part. But on the evidence adducéd en the trial we think that no verdict could have been rendered for more than the sum stated, $1,400.

The judgment and order appealed from should be reversed and a, new trial granted, unless plaintiff stipulates to reduce the verdict to the sum of $1,400, in which case the judgment as reduced should be affirmed, without costs.

All concurred, except Bartlett, J., not sitting.

Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to the sum of $1,400, in which case the: judgment so reduced is unanimously affirmed, without costs.  