
    William Greeley, Appellant, v. The State of New York, Respondent.
    
      Duty of the State constructing an aqueduct to keep it open for the passage, of water — liability to one injured by a flood therefrom — act of God, how far an excuse.
    
    It is the duty of an individual or corporation constructing a bridge over a stream" to provide an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may reasonably be expected to occur although infrequently.
    Under section 37 of chapter 338 of the Laws óf 1894, as amended by chapter 280 of the Laws of 1899, a like duty is imposed upon the State of New York in the construction and management] of an aqueduct maintained by it upon a creek as a feeder for the Erie canal.
    Where it appears that for many years it had been the custom in the fall of the year to leave four openings in the aqueduct for the purpose of providing for the flow of the stream during the annual spring freshet, and that this number of openings had proved sufficient for the purpose, evidence that in the fall of 1901 the superintendent ^of the aqueduct allowed one of the four openings to remain closed, and that in the spring freshet of 1902 a disastrous flood, Occasioned by the backing up of the water in front of the aqueduct,"greatly damaged adjacent property, is sufficient to warrant a finding of negligence on the part of the superintendent, especially where it appears that the attention of the superintendent was called to the fact that the closing of the opening would probably cause a flood.
    As a general rule, injury produced by an act of God does not relieve one from liability where his own negligent acts concur in or contribute to the injury.
    Appeal by the' claimant, William Greeley, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 13th day of February, 1903, dismissing the plaintiffs claim.
    
      Philip Keck and J. D. Rogers, for the appellant.
    
      John Ounneen, Attorney-General, and 8. 8. Taylor, for the respondent.
   Houghton, J.:

For many years the State has maintained an aqueduct for the Erie canal across Flat creek in Montgomery county^ a short distance above its entrance into the Mohawk river. Just above the aqueduct the creek is about one hundred feet in width; and after it passes through it narrows to about one-half that distance. The aqueduct is supported by piers which make five openings of -about twenty feet each through which the creek runs, and is built of large timbers which are removed at the close of navigation in each year, leaving no obstruction to the flow of the creek and the passage of ice, except the piers. For some years the easterly opening has been permanently closed by earth and stone, leaving but four openings for this purpose. In the fall of 1901 the defendant’s superintendent allowed the westerly opening or bent to remain closed by a waste gate and timbers, thereby still further narrowing the channel of the stream. In March, 1902, the ice in the creek broke up, floated down to the aqueduct, piled up on the closed bent and the remain? ing piers, making a dam twelve or fifteen feet high which flooded the water back upon the claimant’s land, destroying his orchard and carrying his house from its foundation, thereby overturning a stove and setting the house on fire. The house and buildings surrounding it had been erected twenty years and more and no similar catastrophe had occurred.

The theory of the claimant .upon the trial was that if the four openings between the piers had been left open, as usual, instead of three only, the ice would have' passed through, no gorge would "have been formed, and no disastrous flood would have occurred. There was no proof before the court that ..similar breaking up of ice and freshets had occurred, in which the four openings had not properly 'taken care of "the ice and water. Nor is there any testimony that the flood .was anything more than an ordinary one, except in its results. At the time it was decided to leave the westerly bent closed, there was discussion as to whether or not it.was safe to do so, some engaged in the work insisting to the superintendent that it would be dangerous if high water occurred, and others maintaining that it-would not.

Section 37 of the Canal Law (Laws of 1894, chap. 338, as amd. by Laws of 1899, chap. 280) provides that damages shall be recoverable against the State resulting from the use or management of the canals, or arising from the neglect or conduct of any officer of the State having charge of them, in any case where an individual or corporation would be liable.

It is the duty of an individual or corporation constructing a bridge over a.stream to provide such bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may reasonably be expected to occur although infrequently. (Higgins v. N. Y., L. E. & W. R. R. Co., 78 Hun, 567; Mundy v. N. Y., L. E. & W. R. R. Co, 75 id. 479.) Hence it follows that a like duty is imposed upon the State in the construction and management of an aqueduct. (Shannahan v. State of New York, 57 App. Div. 239.)

So far as the record discloses, the four openings which had been customarily left unobstructed at the close of navigation each year prior to 1901 were sufficient to allow the passage of water and ice during the winter and spring freshets. Bodies of water freeze in this climate, and upon the breaking up of streams freshets occur, and it was the duty of the defendant to guard against not only the ordinary freshets, but also such extraordinary ones as were likely to occur in the stream in question. The fact that the four openings had taken care of the water, and that the buildings which were carried off by the freshet of 1902 had stood for a long number of years while those openings were maintained, was some evidence that the closing of one of them caused the damage, and that the act of the superintendent in leaving one of them closed was a negligent and improvident act. This was so especially in view of the circumstance that his attention was called to the fact that it would probably be dangerous and cause a flood if he did not clear the opening. The claimant, therefore, proved circumstances from which negligence on the part of the State official could be fairly inferred, and the court was not authorized in dismissing his claim for lack of proof of that fact.

There are no findings of fact and nothing in the record except the judgment dismissing the claimant’s claim, and we are not apprised whether the claim was dismissed because the claimant failed to establish any negligence on the part of the officers of the State, or whether it was upon the ground that the flood was an act of God for which no one was responsible. There was, however, no proof in the case that the freshet was so extraordinary as to be one which the defendant was not bound to guard against. In order that the defendant should be relieved from liability on that ground, if it can be relieved at all by reason of its negligence in leaving the opening closed, much more proof is necessary than was adduced at the trial. Without decidirig the point in view of w-hat may be proven on a retrial of the present case it may be stated as a general rule that injury produced by an act of God does not relieve one from liability where his own negligent acts concur in or contribute to the injury. (Michaels v. N. Y. C. R. R. Co., 30 N. Y. 564.)

It is. also claimed that the proofs established-that the ice gorge was formed between the aqueduct and the river, and that this gorge •caused the water to flow back, and not the gorge at the aqueduct. One witness says that he thinks the ice was gorged all the way from the river to the aqueduct, and On cross-examination testifies that the lodging of ice in March; which is the time complained of, commenced at the aqueduct. Another witness testifies that it was in the freshet of December previous that the creek below the aqueduct was filled with ice; and that at the March freshet no water backed up to the aqueduct. And still another witness .says-that the water from below came only part way up to" the aqueduct. It is quite apparent that-the gorge and dam of ice at the aqueduct flowed back the water and broken- ice and caused" the injury to claimant’s property. Under -the"facts appearing in the record the claimant was entitled to recover, and ¡it was- error to dismiss his claim.

The judgment should, be reversed on the law and the facts and a new trial , grantéd, with costs of the appeal to the appellant.

All concurred.

Judgment reversed on Jaw and facts and new trial granted, with costs of appeal to appellant.

Note.—The rest of the cases of this term will be found in the next volume, 95 App. Div.—[Rep.  