
    Hattie Adkinson, Respondent, v. The State of New York, Appellant.
    Third Department,
    June 27, 1906.
    Watercourse — State liable for negligence in discharge of canal waters into stream.
    Although the State of jSTew York may have an easement giving it a right to discharge surplus waters from a canal into the channel of a natural stream, in exercising such right it must use reasonable care not to precipitate large quantities of water into such stream so as to overflow and injure tile lands of private owners. Where an injury results from such overflow an owner may recover damages based on the negligence of the State’s employees.
    When it appears that such overflow of private lands was caused by the sudden opening of the gates of the canal at periods when there were no unusual storms, and that had the gates been opened gradually no overflow would have occurred, the State is liable for the damage caused.
    Appeal by tbe defendant, Tbe State of New York, from a judgment of tbe Court of Claims of tbe State of Now York, in favor of tbe claimant, entered in tbe office of tbe clerk of said court on tbe 22d day of May, 1905, for tbe sum of $500.
    
      Julius M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the appellant.
    
      James Wright, for the respondent.
   Cooiiraxe, J.

Tbe respondent bas been awarded a judgment for damages sustained by lier by reason of an overflow of water caused by tbe negligence of tbe employees of tbe State.

Many years ago tbe Erie canal was constructed across Putnam creek, a stream of water flowing in a northerly direction in tbe county of Cayuga. Tbe canal was so constructed as to receive tbe water of tliis stream as a feeder, and there were also provided six gates which could be opened and tbe water of tbe canal discharged through tbe gates into tbe stream on tbe northerly side of tbe canal, so that tbe water thus discharged would tlience flow onward down tbe natural channel of the stream. Over tbe top of these gates was a spillway about sixty feet in length, tbe top of which was about on a level with tbe surface of the water of tbe canal at its normal depth, over which spillway tbe surplus water of tbe canal naturally found exit into the stream below. The purpose of the gates was to relieve the canal when by reason of severe storms or other emergencies the water would be in danger of overflowing the banks of the canal, or when for any reason it was desired to discharge water which would not naturally escape over the spillway. The respondent occupied a farm in the years 1900 and 1901 about a quarter of a mile north of the canal on Putnam creek. At different times during the years mentioned the said gates of the canal were opened, and such large volumes of water were permitted to flow from the caual that the water overflowed the banks of the stream below and over the respondent’s property, causing her damages for which this judgment has been awarded.

The defense is that the State has acquired an easement in the water of Putnam creek, including the right to take such water, and also to discharge into the stream water from the canal. That proposition may be conceded, but it affords no justification for the damages sustained by the respondent. The flooding of her property might have been avoided by the exercise of proper care. The evidence shows that the water in the caual was carelessly permitted to rise to an abnormal height before any of the gates were opened, and that then the gates were opened, not gradually, but all at once, so as not to discharge the water from the canal gradually, but to precipitate suddenly and unnecessarily large volumes into the channel of the stream, thus unnecessarily and negligently causing the stream to overflow its banks and occasion the damages in question. A witness who had been a gate tender at this place for nine years testified that if there was no extraordinary storm the canal could be relieved by a cautious use of the gates without flooding the banks of the stream ; that if there was a heavy pressure of water three gates open would accomplish such a result. There was no extraordinary storm at the time of the flooding in question. In fact it is established that on some occasions of flooding there was no storm in the vicinity of the respondent’s farm and on no occasion was the storm severe. The gatetender who operated the gates at the time when the damages were sustained lived about two miles from the gates. ITe testified: “We would never get up to tend the gates until we noticed the water rising in the level to such an extent that it was necessary. We could watch the level and tell the minute it was getting too high, and the time I got there, nearly two miles, that would give it a half an hour longer if I had to walk, and when I got there I would generally open six paddles to start with and - probably draw them half or three-quarters of an hour and sometimes longer. Q. When four, five and six gates were open this stream always overflowed its banks? A. Yes, sir. My attention was called to that it covered this farm in question as it passed along by it and ran over its bank.”

It thus appears that this judgment does not rest on the proper and necessary use of Putnam creek for the purpose of taking water therefrom or of discharging canal water therein. But it rests on the negligence of the employees of the State in «carelessly operating the canal in such a way as to suddenly and needlessly precipitate large volumes of water into the stream, thus causing it to overflow its banks, when by the exercise of proper and reasonable care the canal could have been relieved of its surplus water without causing an overflow of the stream. For such negligence the State is liable. (Sipple v. State of New York, 99 N. Y. 284.)

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.  