
    William Haselo, Claimant, v. The State of New York.
    No. 9500.
    (State of New York, Court of Claims,
    September, 1911.)
    States — Claims — Liability of State in general.
    Waters and watercourses — Natural watercourses—• Dams and embankments — Dams — Flooding lands.
    In the improvement of the navigation of the Mohawk river, the State may not, by building a coffer-dam, set back the water and ice upon the lands of a riparian owner above, and, having-done so, is" liable for the damages caused- thereby.
    The State cannot escape liability on the ground that -the work was done by an independent • contractor.
    This claim is one for the flooding of claimant’s land and damaging his property by means of a coffer-dam, built by a contractor for the State in the Mohawk river about one mile down stream.
    The State had let a contract for'the construction of the Barge canal, and in connection therewith the contractor built a coffer-dam, the length of which varied, according to the stage of the water, from 90 to 220 feet.
    It was a serious obstruction to the flow" of the water of the river; and, on February 20, 1909, when the ice broke up, it jammed against the coffer-dam, caused the water to rise and forced the water and ice upon claimant’s premises. •
    "There was no. proof that the weather ’conditions were extraordinary,. and the main defense relied upon by the State was that the work was being done by an independent contractor.
    William W. Loúcks, for claimant.
    Thomas Carmody, • Attorney-General, and Frank W. Brown, Deputy Attorney-General, for the State.
   Rodenbeok, J.

The State had "the right to "improve the navigability of the Mohawk river, but could not do so in such a way as to throw water ánd ice upon the claimant’s land so as to injure him, either temporarily or permanently. Pompelly v. Green Bay Co., 13 Wall. 166; United States v. Lynah, 188 U. S. 445; Lowndes v. United States, 105 Fed. Rep. 838.

It could excavate in the channel of the stream for a lock and build a coffer-dam or other structure necessary to its. construction; but it could not do so in a- manner which would involve itself in a trespass upon private property, or in the taking of private property for public use, without liability for damages therefor.

In the exercise of its power to improve the navigability of the stream, it could place a lock or dam in it, but not so the water would be temporarily or permanently set back upon private property, so as to amount to a taking of the property Avithout making compensation.

In the work in question, the State owed the claimant the . duty by law to so carry on the work as not to set the water back upon his land.

.Had the State done the work itself, by its servants or agents, its liability probably would not be questioned.

. It cannot relieve itself upon the plea that the work was done by an independent contractor, because of its existing duty to so do the work as not to injure claimant (Storrs v. City of Utica, 17 N. Y. 104), and because the Avork itself, in this instance, necessarily caused the damages. Berg v. Parsons, 156 N. Y. 109.

Whether or not the State had done the work itself by its agents and servants or by an independent contractor, the construction could not have b'een built Avithout coffer-damming, which renders the ease -analogous to those cases where the contract calls for a public sewer in a public street’ which necessarily .requires an excavation. Deming v. Terminal R. of Buffalo, 169 N. Y. 1.

There was no negligence in the manner of doing the work, and to relieve the State would extend the doctrine of non-liability for the acts of independent contractors much further than the law has gone.

This claim comes under the exception to non-liability laid down by Judge Martin in Berg v. Parsons, 156 N. Y. 109, 115, and the claimant should recover.

Judgment for claimant.  