
    Bellinger v. The New York Central Railroad.
    One who, without legislative authority, interferes with the current of a running stream, is responsible, absolutely and without regard to actual negligence, for the damages sustained in consequence of his interposition by those who are entitled to have the water flow in its natural channel.
    Where, however, such interference is in pursuance of legislative authority, granted for the purpose of constructing a work of public utility, upon making compensation, the party obstructing the stream is liable only for such injury as results from the want of due skill and care in so arranging the necessary works as to avoid any danger reasonably to be anticipated from the habits of the stream and its liability to floods. 4
    Appeal from a judgment of the Supreme Court. The action was commenced in May, 1855, to recover damages against the defendant for “negligently, wrongfully and improperly” constructing its road across the West Canada creek, and across the lowlands forming the valley of said creek, in the town of Herkimer, by means of which the plaintiff’s lands in the valley on the east side of the creek were repeatedly overflowed, the soil, fences and manure washed away, and large quantities of rubbish left upon the ground, &c. The defendant’s corporation was created in 1853, pursuant to an act of the legislature consolidating certain railroad companies into one company, and subjecting it to all the liabilities attaching to the companies embraced in the consolidation. Among these companies was the Utica and Schenectady Railroad Company, a corporation created by act of the legislature, whose road, as it was alleged, caused the'injury, prior to the consolidation.
    The West Canada creek runs in a southerly direction, discharging its waters into the Mohawk river in the town of Herkimer. The Utica and Schenectady railroad was constructed in 1835. Its general direction is east and west, and it crosses' the creek in that town at a place easterly of the village of Herkimer, and runs on an embankment over the low land between the creek and the village, about one hundred and fifty rods. The bridge on which the track runs over the creek is nearly five hundred feet long. It replaces a former bridge of the company, which was carried off in 1851. There is a space of eighty-two feet wide in the embankment, for water to pass in the time of flood, over which space the track passes on what is called a flo'od bridge. In other parts the embankment is from four to twelve feet high, and there is a culvert four or five feet high near the west end of the embankment. The plaintiff’s land, which was alleged to have been injured, is on the east side of the creek, below the railroad track, and between it and the Mohawk river.’ It was shown that the railroad company had acquired title to the land occupied by the track of its road, and that the plaintiff had received payment for the value of his portion of that land, and for his damages in consequence of the road having been laid out through it.
    The plaintiff’s land was not overflowed periodically, but only in times of unusual freshets, occurring in the winter and spring, when the flow of water is obstructed by the ice which has broken up and lodged in the channel and openings. Such a freshet occurred in the winter of 1842-3, carrying off the flood bridge, and in 1851 when the turnpike and railroad bridges, spanning the creek, were carried off, and again in 1853. On each of these occasions the plaintiff’s land was covered with ice and strewed with floodwood and rubbish; the soil was washed off in places, and the fences carried away. Several of the plaintiff's witnesses attributed this effect to the railroad embankment, west of the creek. They testified (in effect) that if such an obstruction had not existed, the water which came out of the channel on the west side of the creek, above the railroad, would have spread out and passed off on the low lands on that side; but that, owing to the embankment, and to the ice filling up and obstructing the space at the flood bridge, the water turned and ran east into the channel, broke up the ice in it, which was again obstructed by the fixed ice in the channel below the railroad bridge, and the whole was thrown upon the plaintiff’s land east of the creek. On the other hand, the defendant’s engineer, in charge of that part of the road, testified that upon these occasions the space at the flood bridge was not clogged by the ice, but passed off the water freely. It was shown by an aged witness that he had seen the ice and water overflow and run upon the plaintiff’s land on the occasion of the breaking-up of the spring of 1799, and another witness saw the water on his land in 1813 or 1814. It appeared that, in both the freshets of 1842 and 1851, the ice in the creek was raised and thrown upon the banks a considerable distance above the place in question, and that several bridges and dams situated on the creek, above and not within the influence of the railroad embankment, were carried off. These were sudden and violent floods occurring after a rain, while the earth was frozen and covered with snow and the stream was frozen over. The West Canada creek was shown to be a violent stream, especially when breaking up in the spring.
    The defendant’s counsel moved for a nonsuit, On the ground that it had not been shown that there was. any want of care oi skill in the construction of the railroad or bridges, or that the injury to the plaintiff’s land was owing to any such want of care or skill on the part of the railroad company. The motion was denied, and the defendant’s counsel excepted.
    The defendant’s counsel called as a witness one Gilbert, who testified that he was an engineer, and had been engaged in that pursuit for twenty-five years, and had been in the employment of the Utica and Schenectady Railroad Company for a time in 1847 and 1848, and in charge of the portion of their road embracing the place in question, and was familiarly acquainted with the embankment across the valley of the creek, of which and of the bridges he exhibited a map, which he swore was accurately drawn. The'defendant’s counsel, among other questions, asked him the following: “Were the embankment and the bridges carefully and skillfully constructed, with reference to this creek?” The plaintiff’s counsel objected to the question as incompetent, and it was excluded by the judge, and the defendant’s counsel excepted. The judge charged, among other things, “that the railroad company had a legal right to build its road in its present location, but, in building it, was bound to exercise due care. If it became necessary to pass over streams, sufficient openings should be left for the water to pass through in high as well as low water. The company is not bound (he said) to insure against any possible contin gency, but it is bound to see that the openings are sufficient for any freshet which might reasonably be expected to occur in the stream for which it was made.” The defendant’s counsel excepted to this part of the charge. Verdict for the plaintiff, $525.75, for which judgment was entered, which was affirmed at a general term. The defendant appealed.,
    
      Sidney T. Fairchild, for the appellant.
    
      Robert Earl, for the respondent.
   Denio, J.

The defendants had a right to construct their railroad across the creek and the low lands on each side of its channel, at the place where it was brnlt; but they were bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable. This was the substance of the charge of the judge. He told the jury that the company was not bound to guard against every possible contingency, but that they were bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur in the stream. In this,

I think, he stated the rule with substantial accuracy; though I am of opinion that the principles of the action were not as fully explained as was desirable. But no request to supply the deficiency was made by the defendant's counsel. The exceptions to the charge cannot be sustained.

I am of opinion, though not without some hesitation, that there was evidence enough to submit the case to the jury upon the question whether the road and its embankments and bridges were constructed with suitable care and skill. There was no evidence directly bearing upon the point, by any witnesses of competent knowledge and experience. But the fact that, on three several occasions between the time of the construction of the road, in 1835, to the trial, in 1856, the water and ice had been forced out of the stream upon the plaintiff’s land; and that, in the judgment of witnesses who had seen the breaking up of the ice, the diversion of- the flood from its natural course on the west side, where it would have been harmless, to the. creek and on to the4and on the other side, was caused by the embankment, arid.,' the want of sufficient apertures for the passage of the water, afforded soirie evidence that the structures referred to were faulty. When the character of the stream, the peculiar suddenness and violence of- the freshets which caused the injury, and their infrequency, are taken into consideration, it is evident that the plaintiff’s case was not a strong one; but I think it-was one to be determined by the jury. I am, therefore, in favor of sustaining the ruling • of the court, in denying the motion for a nonsuit.

But the judge refused to allow the inquiry to be made of a witness, who was an engineer by profession, and who was familiar with the locality and with the defendant’s structures, whether the embankment and the bridges were carefully and skillfully constructed with reference to the creek. It does not appear upon what ground the question was rejected by the . justice who presided at the trial. But the opinion of the court, given at the general term, upon the appeal there, puts the right to recover upon the sole question whether the propulsion of the ice and water upon the plaintiff’s land, during the freshets referred to, was occasioned by the erection of the defendant’s structures, If this is the true question, the inquiry made of the engineer, Gilbert, was immaterial; for, whatever skill and judgment may have been applied to the construction of the road, and though no fault whatever was imputable to the defendants or their servants, they were still, upon this doctrine, responsible for the damages, provided they would not have arisen if the railroad had not been constructed. This, as we have seen, was not the theory upon which the case was given to the jury at the Circuit; and, hence, the opinion of the general term consistently declares that the charge was more favorable to the defendants than the law would warrant. The general term proceed to state, in effect, that the defendants, though authorized by law to construct the road on the course on which it is located, are still liable for any interference with the water, either that which would ordinarily flow in the stream or that which is superinduced by a freshet, to the prejudice of a third person, to the same extent that a private individual would be liable for similar acts upon his own land. If this be a correct statement of the law, the question of negligence, or want of due skill and judgment, in the construction of the road, was not in the case; for I suppose that the maxim, aqua currit et debet currere, absolutely prohibits an individual from interfering with the natural flow of water to the prejudice of another riparian' owner, upon any pretence, and subjects him to damages at the suit of any party injured, without regard to any question of negligence or want of care. ^6 one chooses of his own authority to interfere with a water-course, even upon his own land, he, as a general rule, does it at his peril, as respects other riparian owners above or below. But the rule is different where one acts under the authority of law. There he has the sanction of the State for what he does, and, unless he commits a fault in the manner of doing it, he is completely justified. This is, of course, to be understood as limited to cases in which the legislature has the constitutional power to act. If, therefore, a corporation or an officer should be authorized by a statute to take the property of individuals for any purpose, however public or generally beneficial, without compensation, or, for a private use, making compensation, the pretended authority would be wholly void, and, of course, could afford no protection to any one. But this limitation has no application to cases where property is not taken, but only subjected to damages consequential upon some act done by the State or pursuant to its authority. Some doubt at one timé existed as to this distinction; but the question was directly presented in Radcliff’s Executors v. The Mayor, &c., of Brooklyn (4 Comst., 195); and it was there determined, by the unanimous judgment of the court, tha,t, where persons are authorized by the legislature to perform acts in which the public are interested, such as grading, leveling and improving streets and highways and the like, and they act with proper care and prudence, they are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway. The doctrine is equally applicable to the construction of a railroad by a private corporation, for the enterprise is considered a public one, and the authority is conferred for the public benefit. It is on this account that such corporations are authorized to exercise the right of eminent domain, which could not be conferred in respect to any other than a public undertaking. (Bloodgood v. The M. & H. R. R. Co., 18 Wend., 9; Davis v. The Mayor, &c., of N. Y., 4 Kern., 523.)

A number of cases are referred to in the opinion of the general term, as tending to establish the doctrine that the defendants are liable for all damages consequent upon the erection of their works, irrespective of the question of negligence or want of care and skill in constructing them. Considering the point to have been conclusively adjudged in the case of Radcliff v. The Mayor, &c., I might leave the point to stand upon that precedent •, but I think it may readily be shown that there is no well-considered case having a contrary tendency. In Boughton v. Case (18 John., 405), the action was for interrupting the flow of the water along a turnpike road and the ditch belonging to it, so that it was turned into the plaintiff’s garden and destroyed his vegetables. Defence, that the defendant was engaged in repairing the turnpike road under the authority of the company. There was a judgment for the plaintiff, which ■ was sustained by the Supreme Court. The judges say that the question before the jury was, whether the bar across the road had been properly constructed, and whether the damage done to the plaintiff’s garden might not, with reasonable care and diligence, have been avoided. They declared that it was a casein which the defendants could guard against the injurious consequences, and that it was their duty to do so." “If,”.they added, “they . will not take this reasonable care, and the property of individuals is damaged by their unskillfulness or negligence, they are responsible.” The case was one of small moment, and arose in a justice’s court, and was not elaborately treated; but it does not aid the plaintiff, for it is clear that the ground of liability was considered to be that which I have stated.

The case of The Rochester White Lead Company v. The City of Rochester (3 Comst., 463), was an action for negligently constructing a culvert under one of the streets of the city, by means of which (on account of the deficient capacity of the passage-way for the water), its flow in a freshet was obstructed, and it was set back upon the plaintiff’s manufactory, to his itij ury. A recovery by the plaintiff was sustained. The action, it will be perceived, sounded in negligence, and the opinion , of the court proceeded wholly on the ground that the charge had been established; the main suggestion of the court being that the city had not shown that it employed a competent engi-. neer to construct the culvert. No idea appears to have been entertained that the defendants were responsible for the mere fact of setting back the water, irrespective of the question of negligence. If that were the law, the whole discussion in the case would have been without an object. A late case in the Court of Queen’s Bench has been insisted upon, as determining the precise question against the present defendants. The declaration charged the defendants in that case with erecting an embankment across certain low lands in the valley of the river Dun, “ without having or leaving sufficient arches or waterway to allow the flood waters to escape,” whereby they were penned back and finally forced upon the plaintiff’s land to his injury. The plaintiff had a verdict; and, on the argument of a rule to show cause, two questions were discussed and determined. The first was, whether the owner of the land, under whom the plaintiff claimed as lessee, had not been already compensated for these damages by the award of an arbitrator. The company had purchased a parcel of the land of this proprietor for the track of its road, the price of which was, by agreement, to be determined by an arbitrator, and the submission provided that he should, in addition to the compensation for the land, include all damages done to the remaining estate of the vendor,

“ occasioned by severance or otherwise, which could have been awarded by a jury, in case the value of such land and compensation for damages had been settled by the verdict of a jury.” The arbitrator awarded a gross sum for the value of the land, including the damages mentioned, which was paid; and the defendant insisted that this embraced the damages for which the suit was brought. The court held otherwise, and decided that it only included the damages which were capable of being ascertained and estimated at the time compensation was awarded, and did not reach the damages in question, which, it was said, could neither be foreseen nor even guessed at by the arbitrator. The second question was; whether the defendants were liable, since they had built the road according ■ to the provisions of the act of Parliament authorizing its construction. The act obliged the company to make openings for flood waters in one part of the route, .in another county, but was silent as to such openings at the place in question. Hence the defendants insisted,’ upon the principle expressio unius est exdusio álterius, that they were not bound to make flood gates at that place. Upon that point, the court said, the company might haye been at liberty, under the act, to construct their railway across the lowlands in the manner they had done; but that it did not follow that, in case an unforeseen injury should arise to any one from the mode in which it was constructed, they are not liable to the action. They added that the company might, by proper caution, have avoided the injury which the plaintiff had sustained; “ and we think,” the opinion concludes, “ that the want of such caution was sufficient to sustain the action.” (Lawrence v. The Great Northern Railway Co., 16 Adol. & Ellis, N. S., 643.) The case does not, I think, afford any countenance to the idea that the defendants are -liable at all events for an injury occasioned by their embankment. ■They are to use all reasonable caution; but, exercising such caution, they had a right to construct the road, and were not liable to any consequential damages to any one whose property they did not directly invade. The defendants in the ease cited contended for impunity, though they had not used due caution, under the peculiar terms of their act. What the present plaintiff contends for is, that the utmost care and skill in constructing the works will not avail the defendants, if, after all, an injury has happened in consequence of the existence of the work, though they had the authority of an act of the legislature to construct it.

An obstruction may be such that any one, whether professional or not, would see at a glance that it was improper and lacked safeguards necessary to be made, and which might effectually prevent injury. Such seems to have been the case just mentioned. There was but a single culvert in the embankment, and the injury was done during a high flood occurring the same year in which the lands were appraised. In this case there was an opening of considerable width, besides the bridge over the creek, for the passage of floods. It does not appear that it had ever proved insufficient except when a high flood was complicated by the breaking up of the ice, and that occurred only thrice in twenty years, and the same thing appears to have happened once at least before the embankment was constructed; and, on one of the occasions after the building of the road, the freshet was destructive to most of the bridges on the creek. In my opinion, the passage of the creek and valley by the railroad called for the exercise of engineering skill and judgment of a high order. The character of the creek and its, habits (if that expression may be used) should have been investigated, and especially its liability to be broken up by a thaw in the winter, when covered with thick ice. It is possible that any embankment across the valley, even when furnished with the full amount of openings which could be left consistently with laying a rail track, would modify, to some extent, the action of the water upon the ice in the case of a winter flood. While I have been engaged in examining the case, the streams in the vicinity of this road have been opened by a spring flood, and the track has been covered for a considerable distance by ice and debris, so that the trains have been stopped for a considerable -time. Whether it was practically possible to have fixed the grade so that this would not have happened, can only be determined by the judgment of men skilled in such matters. The defendants, as the judge at the trial very properly said, were not insurers. But they were ' authorized to build the railroad at the place where they did build it; and if, necessarily and in spite of all reasonable safeguards and precautions in constructing the work, occasional disturbance to adjoining lands would arise from a winter freshet, it was the misfortune of the plaintiff that he had lands exposed to such occurrences.

There are two other cases mentioned in the opinion of the general term, namely, Fletcher v. The Auburn and Syracuse Railroad Company (25 Wend., 462), and Brown v. The Cayuga, &c., Railroad Company (2 Kern., 486). The first of these cases is substantially overruled in the one referred to in 4 Comstock, 195. In the other case the only question presented was, whether a party continuing a nuisance was liable if he had not had notice to remove it. The concluding sentence in the last opinion given in that case, was written when the writer had not in his mind the case in which Fletcher v. The Auburn Company was reconsidered; but no part of that opinion was adopted by the court. The case itself raised no question material to the present inquiry; and it cannot therefore be considered a precedent in the case under consideration.

I am of opinion that the judgment should be reversed, on account of the erroneous ruling Upon the question of evidence.

Hoyt, J., dissented; Comstock, Ch. J., and Lott, J., did not sit in the case, • *

Judgment reversed, and new trial ordered.  