
    George Chapman, Sr., Resp’t, v. The City of Rochester, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    Nuisance—Pollution of water—When party injured thereby can maintain action.
    The plaintiff was the owner and occupant of certain premises adjoining the city of Rochester, and watered by a stream, which rising in that city and fed by springs of pure water, ran across the plaintiff’s premises into a certain bay. He collected its water into an artificial basin, making it serve for domestic and other uses. ' The defendant thereafter constructed sewers, and through them discharged not only surface water, but the sewerage from houses and the contents of a large number of water closets in said stream, above the plaintiff’s land, with such effect as to render its water unfit for use and cover its banks with filthy and unwholesome sediment. Reid, that the act of the defendant in thus emptying its sewers constituted an offensive and dangerous nuisance. That the plaintiff is entitled not only to compensation for damages thereby occasioned but also to such a judgment as will prevent the further perpetration of the wrong complained of. That the case comes within the general rule which gives to a person injured by the pollution of air or water, to the use of which in its natural condition he is entitled, an action against the party, whether it be a natural person or a corporation who causes that pollution.
    Appeal from a judgment of the general term of the supreme court (fifth department), affirming a judgment at special term, awarding the plaintiff $1,200 damages for present injury, and an injunction to restrain the continuance of the nuisance complained of. The facts appear in. the opinion.
    
      Mr. Sullivan, for app’lt; Mr. Stull, for resp’t.
    
      
       Affirming 40 Hun, 633 mem.
    
   Danforth, J.

The plaintiff was the owner and occupant of certain premises, containing more than four acres of land in the town of Brighton, adjoining the city of Rochester, and watered by a stream known as “Thomas Creek,” which rising in that city and fed by springs of pure water, ran northwardly and across the plaintiff’s premises into Irondequoit bay. He collected its water into an artificial basin, making it serve as well for domestic uses as the propagation of fish, and from it in due season he also procured a supply of ice.

The defendant thereafter constructed sewers, and through them discharged not only surface water, but the ‘ ‘ sewerage from houses and the contents of a large number of water closets” into “Thomas Creek” above the plaintiff’s land, with such effect as to render its water unfit for use and cover its banks with filthy and unwholesome sediment.

These and other facts well warranted the conclusion of the trial court that the'act of the defendant in thus emptying its sewers, constituted an offensive and dangerous nuisance. Moreover, the plaintiff is found to have, sustained a special injury to his health and property from the same cause, and we find no reason to doubt that he-is entitled not only to compensation for damages thereby occasioned, but also to such a judgment as will prevent the further perpetration of the wrong complained of (Goldsmid v. Com'rs., I Eq. Cas. 161; 1 Ch. Ap. Cas , 349. In view of the principle upon which these and like decisions turn, the objections of the learned counsel for the defendant against the judgment appealed from, are quite unimportant. The filth of the city does not flow naturally to the lands of the plaintiff, as surface water finds its level, but is carried thither by artificial arrangements prepared by the city and for which it is responsible. Nor is the plaintiff estopped by acquiescence in the proceedings of the city in devising and carrying out its system of sewerage The principle invoked by the appellant has no application, It does not appear that the plaintiff in any way encouraged the adoption of that system, or that by any act or word he induced the city authorities to so direct the sewers that the flow from them should reach his premises. There is no finding to that effect, and the record contains no evidence. In fine the case comes within the general rule which gives to a person injured by the pollution of air or water to the use of which, in its natural condition, he is entitled, an action against the party, whether it be a natural person or a corporation who causes that pollution.

The judgment appealed from must therefore be affirmed, with costs, but without prejudice to an application by the defendant to the supreme court, for such further stay of the issuing of the injunction awarded by it, as may, under the circumstances of the case, seem to that court proper.

All concur.  