
    David Winchell, Respondent, v. Town of Camillus, Appellant.
    Fourth Department,
    November, 1905.
    Highway Law — town not liable for,damage through obstruction of sluice under highway — erroneous charge.
    The liability of towns for obstructions in the highway exists only by virtue of Statute (Highway Law, § 16) and is based solely on the. negligence of the • highway commissioner and not on the negligence of the town. The omissions of a commissioner, for which the town is liable, are only those which interfere with travel on the highway. Hence, an adjoining Owner, whose lands-.are ■ flooded through the stoppage of the sluice beneath the highway, has no cause of action against the town.
    A charge which leaves the construction or application of said Highway Law to the jury as one of the questions involved is erroneous:
    McLennan, P. J. (with .whom Spuing, J., concurred), dissented,.with opinion.
    .Appeal by the. defendant, the Town of. Camillus, from a judgment of the County Court of - Onondaga county in .favor of the plaintiff, entered in the office of the clerk of the county of Onondaga . on the 22d day of June, 1905, upon the verdict of a jury for $170, .and also from an order entered'ip said clerk’s office on the 19th day of June, 1905, denying the defendant’s plotion-for a new .trial made - upon the minutes. - ' > .
    
      Ernest I. Edgcomb, for the appellant.
    
      James R. Shea, for the respondent.
   Williams, J.:

The judgment and order should be reversed Upon questions Of law only and a new trial granted, with costs to the appellant to .abide event,. . -

The action is to recover damages for negligence in permitting a sluiceway across a highway under the traveled part thereof to become filled up so as to set back surface water accustomed to flow through the same upon the plaintiff’s premises.

The complaint, the briefs of both counsel, and the court in its charge state that the action is for negligence ef the defendant, the town. It is well settled, and has never been questioned, that a town has no duty to perform, as to the care of highways,.and can be guilty of no neglect with reference thereto.

The law-imposes the diity to care for highways upon the commissioner of highways) not'as agent .of the town, but in his. individual capacity as commissioner.. -

Formerly a recovery for defects ip highways could only be had against,the commissioner. Then in 1881 by chapter 700, section-1, it . was provided that if the commissioner was liable for neglect, an action could be maintained against the town.) not by reason of any agency of the commissioner, for the town, but merely because the statute so provided. (Clapper v. Town of Waterford, 131 N. Y. 382; Bryant v. Town of Randolph, 133 id. 70 ; Lane y. Town of Hancock, 142 id. 510.)' And the question for the jury was not whether the town was negligent, but whether the commissioner was. No negligence of the commissioner was imputable to the town. The liability of the town was a creature of the statute merely.

In 1890 the Highway Law (Chap. 568) was passed, and by section 180 of that law the statute of 1881 was repealed to take effect on March 1, 1891. (Id. § 183). Substantially the same provision was substituted for it, however, by section 16 of that law, which is as follows : “ Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges,. existing because of the neglect of any commissioner of highways of such town.” _ The basis of the right to recover is here plainly stated to be the neglect of the commissioner and not the town.

The trial court read this section to the jury, and then made the following statement to them: “ Now, it is the contention of the defendant in this case, that the defects therein referred to only relate to the defects in the traveled portions of the highway, or defects affecting the traveler. Now, that contention is one which I leave with you with other matters, as a matter of fact to determine.”

This statement in the charge was excepted to by the defendant’s counsel, and the court was requested to charge that the defect complained of in the case was not one contemplated by section 16 of the Highway Law, but the court declined so to charge.

The court did charge that no recovery could be had except under the provision of this section. The jury evidently found as matter of fact that the defect complained of was within the provisions of this section. Otherwise they could not have rendered a verdict for the plaintiff.

We are unable to perceive how the legal meaning or effect of a statute can be a question of fact for a jury. We had supposed it was always a question of law for the court. There was no dispute in this case as to what the defect was claimed to be, the stopping up of a sluiceway under the traveled part of the highway, and the damage resulting was not to a traveler on the highway, but to an adjacent property owner, the setting of • surface water , back'upon-his land, and damaging the same..' • . $

The highway was in no Way obstructed or interfered with so-far as'travel along the same was concerned. The defendant’s contention was. that the defects referred to in the statute related only to the traveled portion of the highway and affecting the traveler, and the court- was asked to construe the statute and to instruct the jury ■ as to its meaning so they could "follow those instructions-in considering the evidence, and deciding, the case. The court declined to do this and left the' jury to construe the statute as a matter of fact, and not Of law, ■ . ' '

We think it was the duty of the court to pass upon questions of law, and that it could not' properly refuse to .do so. Very likely if the jury decided the law properly, as'a question of fact, the defendant was not prejudiced, but we think': they went wi'Ong, arid held the defendant liable under this section,! when it was not liable^ at all,

"The court was requested to charge the jury that 'the defect"complained of was not such a one as contemplated by section 16 of the Highway Law, but the court declined so to charge.

' This, We think, was erroneous, because, first it was the duty of the court to tell the jury what the- law was, and* second,, thO request' correctly stated the.law applicable to the case. ' ■

The commissioner of highways of a., town owes no duty to an-adjoining owner -to provide a channel for the drainage of surface - water. (Gould v. Booth, 66, N. Y. 62; Acker v. Town of New Castle, 48 Hun, 312; Barber v. Town of New Scotland, 8.8 id. 522.) So that, if the' action had been against the highway commissioner of this town for negligence* no recovery could be had.

The present commissioner did not build the road or construct the. sluice in question.' The sluice waá put in b’y plaintiff when he was an overseer of highways, or path master'so called; The only neglpct. if any-complained of as' to the present commissioner was one of Omission merely, failure to remove the rubbish from the sluice so the water' could pass through. Such omission did not constitute negligence for which an action could be. maintained against him. But even if it did, and a. recovery could be had against the- commissioner, still the town was not liable because the statute was intended to-cover no such liability, but only such liability as resulted from defects in the highway, interfering with travel along the same.

This was plainly held in the case of .Barber v. Town of New Scotland (supra). That action was like this in seeking to recover damages caused by the setting back of water by reason of a culvert under .the traveled part of the highway being too small. It was held the highway commissioner would not be liable personally, and, if lie was, the defect complained of-was not one referred to in section 16 of the Highway Law.

See, also, Robinson v. Town of Fowler (80 Hun, 101), which was an action to recover damages for injuries to a workman employed by the commissioner of highways, on the work of making the highway. While blasting was being done a stone fell and injured plaintiff. It is quite apparent that injury did not result from any defect in the highway.

In Whitney v. Town of Ticonderoga (127 N. Y. 40), which was an action brought to' recover damages for injuries to a traveler resulting from the commissioner leaving a scraper in the traveled part' of the road, the court said the action could only be maintained by reason of section 1 of chapter 700 of the Laws of 1881, and that the term, “ defective highways” was used in “ reference to their condition for public travel upon them, which their designation as highways imports, and' in view of the purpose for which they are established and maintained.”

There was clearly no legal right to recover in this action, and it was erroneously submitted to the jury.

The motions for nonsuit should have been granted.

All concurred, except McLennan, ‘ P. J., who dissented in an opinion in which Spring, J., concurred.

McLennan, P., J„,

dissents upon the ground that the uncontradicted evidence establishes that the damages sustained by the plaintiff resulted from the negligence of the defendant’s highway commissioner, for which it was responsible under the provisions of section 16 of the Highway Law (Laws of 1890, chap. 568). Concededly, the commissioner of the defendant constructed a sluiceway or culvert across and under the highway at the point in question, for the purpose of taking care of the water which might accumulate at that point and caiise injury to the highway in that locality. It must be conclusively presumed that such culvert or sluiceway was madeand constructed because the exigencies of the traveling public upon the highway required' its construction. It seems to me. wholly illogical to say that a town is liable for the negligence of its commissioner of highways because of his neglect, for injury resulting from his failure to provide a reasonably safe roadbed-,, arid that it is not liable for the acts of such commissioner in providing such safe roadbed, and we think no authority can be found which supports such contention. To illustrate, a commissioner may conclude.that to raise an established highway ten feet will increase its safety so far as the traveling public is concerned, If the grade.at a particular point is thus raised negligently, and as a rqsult the property of an abutting owner is injured because of water, the flow of which might have been cared for in the' exercise of ordinary care and prudence, we think the commissioner, prior to the former statute of 1881 (Chap. 700), and the town, under that act and the present statute would be liable. Any construction of the statute is altogether too restricted which confines the liability of a town to the negligence of its commissioner in failing to provide a safe roadbed or highway for the public to travel upon, and which would relieve the- town from liability for damages sustained by an. abutting property owner occasioned by the acts' of -the- highway commissioner in making, such “ safe roadbed or highway.” Concededly in the case,.' at bar the commissioner of the defendant constructed, and for years maintained, the sluiceway or culvert in question for the .purpose of preventing the accumulation of. water upon or against the-highway,-constructed and ihaintained it for the purpose of making the highway suitable, or at least more suitable, for public travel Because of the highway commissioner’s neglect in maintaining a structure which had been erected and was necessary for the proper preservation of the highway the damages complained of resulted. The sole answer to plaintiff’s claim made in that regard is' that the defendant is not liable because the damages did not result to a traveler upon the highway, for which only it is urged the defendant is liable. We think such is not the proper interpretation of the statute imposing 'liability Upon .towns for the -negligence of their highway commisr siorier. resulting in injury. We may assume .that if the town Or its highway commissioner in the construction of a highway did not make provision for carrying off water of an abutting owner, that it would not be liable under the provisions of the statute, but we think it' clear that where the highway commissioner undertakes to make such provision, upon and under which all parties-have acted, he may not. arbitrarily discontinue the provision thus made and thereby cause injury to an abutting owner. I can hardly conceive it possible that under the acts referred to the Legislature intended to provide that a town should be liable to a person traveling upon its highway for the negligence of its highway commissioner in permitting such highway to become defective and out of repair, and.that such town would not be liable for the negligence of such commissioner done to keep such highway in repair, and which resulted in inj nry to an abutting owner. As we have seen, in the case at bar the defendant’s highway commissioner constructed the sluice-way or culvert in question for the purposes and convenience of the traveling public upon the highway, of which concededly he had charge. He negligently, as the evidence shows and as is practically conceded, permitted such sluiceway or culvert to become .obstructed and remain so after notice given" to him, with the result that the plaintiff sustained the damages complained for.

We may assume the correctness of the decisions cited in the' prevailing opinion, to the effect that a highway commissioner is not: required by law to provide for taking care of the water coming from premises adjacent to such highway, but we think no case can be found which holds that where such commissioner has made provision he can at will discontinue it and thus cause damage without incurring liability. In the case of Ashberry v. Town of West Seneca (33 N. Y. St. Hepr. 431), a case decided in the General Term, fifth department, it was hdld that the highway commissioner (of a town) had no right to put an obstruction in the ditch, the immediate effect of which would be to precipitate the waters of the creek in times.of freshet on plaintiff’s land,.and that it (the town) was liable therefbr.

It seems to me hardly useful to cite or to seek authority in support of the judgment in this case. The defendant’s highway commissioner, for the sole purpose of ' making a suitable highway, constructed a culvert under it to take the water flowing from the adjacent, premises* Such commissioner negligently permitted sticli culvert under the highway, of which. he had exclusive control, to become so filled up and obstructed that the waters, which except for such obstruction would have passed through it, set back Upon the premises of the -plaintiff and caused the damages for which he - complains. Tt seems tó me clear that' for such damages resulting through the negligence of the commissioner of highways, the defendant is liable precisely as if an injury Bad.resulted to a traveler because of his failure to construct such sluiceway or culvert.

I think it is -Of no importance in this case that the learned county judge and the. respective counsel, during'the course of the trial, spoke of. the negligence, of the defendant" town rather than the negligence of the highway commissioner, as strictly should have been ; done. The statute. imposing liability upon the town for the negligence of the commissioner was read to the- , jury and no exception was taken by either party to- tlie, circumstance that- -the-learned . county judge spoke of the negligence- of the town when strictly he should have denominated, the acts complained of as" the negligence . of the highway commissioner.

We conclude that upon the conceded facts established by the evidence in this case the highway commissioner of" the defendant -was guilty-of negligence which resulted .in injury to the plaintiff, and that it, the.defendanff was liable for such -negligence;"that iio" error was committed by the county judge, or at least such as should be regarded as sufficient to call for a reversal' of the judgment. Our conclusion is. that the judgment is right.; that no error affecting the merits, was committed in the- course of. the trial, and -that it should be'affirmed, with, costs. • 1

Swung, J., concurred.

Judgment and order reversed and new trial ordered, with costs to tho appellant to abide'event, upon questions Of law only, the facts having been examined and ño error found therein.  