
    Lena Garrett, Plaintiff, v. Bradford R. Wood et al., Defendants.
    (Supreme Court, Albany Special Term,
    July, 1901.)
    Uuisance — "Upper proprietor when not liable to lower 'for surface water running down.
    Where city properties lie one above the other on a side hill, the owners of the upper one are not liable to the owner of the lower one because of surface water and melted ice and snow which ran down thereon, following the formation of the land, provided the owners of the upper one have not permitted thereon any improper accumulation of water, ice and snow.
    Action for an injunction and for damages caused by an alleged nuisance. The plaintiff’s lot was located on Rorth Pearl street in the city of Albany, a street running north and south, north of Oolonie street, a street running east and west. The lot ran back westerly and up a hill. The defendants’ lands were directly in the rear and further up the hill. An alley running southerly to Oolonie street divided the lands of the parties.
    B. R. Heyward (Albert C. Tennant, of counsel), for plaintiff.
    James J. Farren, for defendants.
   Chester, J.

The defendants are not liable for any damages to the plaintiff’s property which were included in the judgments in her favor in the several prior actions brought by her for the same cause, those judgments having been paid and satisfied. Garrett v. Wood, 55 App. Div. 281. Nor for any damages recoverable in such prior actions. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 123. The settlement of the judgments in those actions serves as a satisfaction to all the defendants in this action for such damages. Lord v. Tiffany, 98 N. Y. 412. The last of such actions prosecuted to judgment, which was settled, was commenced in the City Court August 16, 1900.

The evidence fails to convince me that since that date the plaintiff has sustained any damages for which the defendants are liable. It appears that soon after that the commissioner of public works of the city of Albany made certain changes in the alley leading to Colonie street, between the plaintiff’s and the, defendants’ property, which caused the water from defendants’ property to run out of the alley to Colonie street. That this furnishes substantial protection to the plaintiff’s premises is clearly shown from the fact that,the rainfall for the month of April of this year was more than double the normal rainfall, and was greater than in any other month for the past twenty-four years, and yet, during that month, no water was collected on the lands of the defendants ’or on the alley, or flowed from the defendants’ to the plaintiff’s land.

There is some testimony tending to establish that in the spring of 1901, water, snow and ice accumulated in a slight depression in the defendants’ premises, and that the water overflowed upon the plaintiff’s property, but there is no proof that this was caused by any change by the defendants of the natural surface of their premises, and I am satisfied that any water which' has reached the plaintiff’s premises from the defendants’ (which has been very slight during the period covered by this action) was surface water from rains and from melting snow and ice which followed the natural formation of the land and which- did not result from any improper accumulation of water, snow and ice permitted by the defendants upon their premises. For this these defendants are not liable. Vanderwiele v. Taylor, 65 N. Y. 341; Barkley v. Wilcox, 86 id. 140.

Whatever dampness has been shown to exist in the plaintiff’s sheds at the rear of her lots adjacent to the alley is only such as is naturally incident to a location such as that is, or was caused by the natural flow of the surface water, for which the defendants are in no wise liable, and which could have been wholly prevented by the exercise of slight care by the plaintiff in fulfilling the covenant in her deed requiring her to conform the grade of the alley in the rear of the premises so as to throw the water coming from defendants’ lots on the west of the alley to Colonie street.

The complaint should be dismissed, with costs.

Complaint dismissed, with costs.  