
    Margaret Hart, Appellant, v. The Village of Adams and Eugene H. Boomer and Others, Composing the Board of Health of the Village of Adams, Respondents.
    Fourth Department,
    November 15, 1910.
    Waters and watercourses — municipal corporations — construction of drains on private property ■— injunction.
    Although a landowner has once allowed a village to dig ditches upon his land in order to drain water into a private stream thereon, the village has no right again to come upon the land to clean out the ditches and to connect the stream with ditches on other property after the owner’s consent has been withdrawn. He is entitled to an injunction restraining such acts.
    Moreover, a village is not entitled to drain all the surface water, sewage and excess waters coming from the village water works into a stream on private lands "without acquiring that right by proper legal proceedings.
    Appeal by the plaintiff, Margaret Hart, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 23d day of September, 1909, upon the decision of the court, rendered after a trial at the Jefferson Special Term, dismissing the complaint herein.
    
      John B. Rogers, for the appellant.
    
      Slate & Waite; for the respondents.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to obtain a permanent injunction restraining the defendants, the Village of Adams and its board of health, from digging ditches on plaintiff’s property for the purpose of drain ing surface or other water into plaintiff’s trout broolc, and from discharging surface or other water in unnatural and unusual quantities upon plaintiff’s premises, and surface water or other drainage into plaintiff’s brook at any point thereon above plaintiff’s premises.

The défense was in substance that the defendants desired merely to clean out a natural watercourse which plaintiff had stopped up, or had allowed to become stopped up, thereby causing a nuisance. The court dismissed the complaint, finding that the brook in question was a natural watercourse;, that about 1879 plaintiff’s predecessor in title to the 'property changed the course of the brook by constructing a canal, thus facilitating the flow of water through the brook, and the watercourse ever since that time has flowed where it now does; that the channel of said watercourse, as so changed, has from time to time become obstructed with vegetable growth and materials carried down the stream, and on several occasions these obstructions have been removed by the village; that in 1908 these obstructions caused the water to become, stagnant, clogged the watercourse where it crossed plaintiff’s premises, and thus created a nuisance detrimental to the public health, and that the village has never drained aiiy sewage or unwholesome matter into the brook, and no drainage from the village has ever reached -the watercourse except surface vcater in reasonable and natural quantities, and in the reasonable use of the stream.

If these findings are supported by the evidence of course the dismissal of the complaint was proper, and the judgment should be affirmed. The only questions involved here are as to the facts. There is no dispute about the law applicable when once the facts are settled.

It seems to me the facts established are substantially as follows: There is as stated'in the fourth finding of fact a stream known as Cemetery brook coming down from northeast of the village of Adams, through the westerly part of the village, through plaintiff’s lands and across Railroad street and emptying lower down into Sandy creek. Railroad street runs easterly and westerly through-the village, and Sandy creek is a large stream running westerly through the village parallel with Railroad street. This Cemetery brook is the stream that plaintiff claims is being polluted with sewage from the westerly portion of the village. The railroad runs northerly and southerly through the western portion of the village, and any sewage there is in that portion of the village must go westerly or southerly towards Cemetery brook. The village has no sewer system in this part. It has a waterworks system by means of which some water is thrown into its streets and drains in various parts of the village. There is a culvert through the railroad embankment just north of the depot, and through this a small stream of water runs from a depression to the east. This depression in former years was fed by a stream from the easterly part of the village, but most, if not all the water from this stream now flows down Main street southerly and empties into Sandy creek above the railroad. Some drainage of surplus water west of Main street, however, and perhaps some water from the stream above, finds its way into the depression just east of the railroad and flows westerly through the .culvert and the westerly part of the village towards Cemetery brook. In early years this stream ran in a generally southeasterly course from the locality of the culvert until it passed Elmwood avenue (a road from Railroad street north to the cemetery) and crossing that went into low land and found its way in no particular single channel into Cemetery brook. Along in the seventies the course of this stream west of Elmwood avenue was changed from about the intersection of Phelps street with that avenue and ran along that avenue southerly. This change was made by the owners of the premises just west of the avenue, with the assent of the street commissioner of the village, in order to relieve their lands from the water and thus enable them to use them for garden purposes. This stream before it reached Railroad street turned westerly to the lowlands about the Hart line, and then reached the Cemetery brook over the lowlands on the Hart property through no very well-defined channel. There apparently was a depression along from Cemetery brook up the northerly side of Railroad street to a point a short distance westerly of the Hart line, and thence northerly upon the Hart property to the Cemetery brook above. This depression the village caused to be dug or cleaned out along up Railroad street recently before this trouble began, and then an effort was made to open up a ditch over the Hart property to connect tile stream down Elm-wood avenue and over the adjoining lands to the Hart line with the depression and northerly from Railroad street. This the owner of the Hart property opposed, and the village sought by force to bring about. This was one of the objects the plaintiff sought by this action to restrain. I think the court was in error in its sixth Ending of fact if it intended to state that the change in the stream at Phelps street and Elmwood avenue was made by plaintiff’s predecessor in title. The change referred to by the witnesses as made by him was on the Hart property and was the old creek bed, so called, from Railroad street northerly to Cemetery creek. It was crooked and was straightened. The change made at the intersection of Phelps street and Elmwood avenue was not on- the Hart property at all. I do not think it can be said that this stream from Phelps street and Elmwood avenue down is a natural stream or watercourse. It was an artificial waterway all along down to the Hart line when the trouble began.

Hor do I think that any work by the village by way of digging upon the Hart property to connect that stream with the ditch running north from Railroad street to the Cemetery brook was with the assent of the owners of that property. The most that can be said is that by allowing the water to run down to and upon the Hart property at its line, it assented to the-same. But even such assent gave the village no right to continue it after the consent was withdrawn and objection was made to its continuance. There was undoubtedly a necessity to clean out the ditches down there and to connect the stream and the ditch north from Railroad street by ditching, in order to remove the obstructions from various sources and secure a free flow of water into Railroad street and along down into Cemetery brook, where it crossed that street. But the village had no right to go on the Hart property to make such improvement without plaintiff’s consent, and it should be enjoined from so doing.

The serious aspect of this controversy, however, is that the village was attempting to use this stream as an outlet for practically all the surface’ water, drainage and sewage of the part of the village west of the railroad, besides taking more or less from east of the railroad through the culvert. In this area there were twenty dwelling houses, twenty-four outdoor closets, twenty-seven barns and outbuildings, two pigpens, one cattlepen, a coal shed, a feed and grain storage building, a malthouse, creamery, water tank, a small reservoir and two whey vats. Rot only the surface water, falling upon the streets, buildings and lands, but also more or less of the artificial supply from the water works system, flowed down this street and upon plaintiff’s lands.

From the very nature of things, the facts stated in the eighth and ninth findings cannot be true under the evidence. It can hardly be claimed the nuisance on the Hart property was the result of decayed vegetation and standing water alone, and was in no part due to sewage carried down from the village.

This part of the village needs relief by way of a sewer system. Sandy creek is but a short distance south of Railroad street, and the system could easily be connected directly therewith, without running across the Hart property or into Cemetery creek at all. More or less of the surface water, drainage and sewage in. the center and easterly portion of the village is conducted down Main street and into Sandy creek east of the railroad. Certainly, if the village insists upon using the way it has been struggling for over the Hart property and through Cemetery creek, it should acquire the right to do so from plaintiff by legal proceedings.

Hpon the evidence in this record, it seems to me the judgment appealed from cannot be sustained.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  