
    Ralph E. Prime and Alanson J. Prime, Respondents, v. The City of Yonkers, Appellant.
    Second Department,
    January 11, 1907.
    Watercourse — city of Yonkers not liable for acts of board of health — when municipality liable for failure to remove obstruction to watercourse.
    As the board of health of the city of Yonkers is not answerable to the common council or to the city in its corporate capacity for its acts, said city is not liable for damages caused to adjacent property owners by the action of the board of health in removing dams in an adjacent stream.
    But when said city in the past has constructed a submerged wall diagonally across the channel of the stream at a time when the same was used for mill purposes and when the wall caused no injury to adjoining property it is, in. the absence of a prescriptive right, under the obligation to remove said wall when it becomes injurious to adjoining landowners by turning water against their foundations after the removal of the dams, whereby the rapidity of the stream was. greatly increased. ■ The municipality is liable for damages so caused.
    Appeal by the defendant, The City of Yonkers, from a'judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 7th day of May, 1906, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      John F. Brennan [Thomas F. Curran with him on the brief], for the appellant.
    
      Henry Bacon [Ralph Earl Prime, Jr., with him on the brief], for the respondents.
   Woodward, J.:

There is no substantial dispute as to the material facts in this case. The plaintiffs, some time prior to the yéar 1890, purchased two lots known as. Nos. 25 and 27 Warburton avenue, in the city of Yonkers, and in that year constructed a brick and frame building upon the southerly half of their premises, such premises being located upon the banks of the Nepperhan river, a stream running through the city. This stream is n on-navigable. For a period of forty years prior to the purchase of the premises by the plaintiffs, the Nepperhan river had been utilized as a water power, one dam being located below the plaintiffs’ premises and five above the same. In the. year 1860 the then village of Yonkers laid out and opened Warburton avenue as a public highway in front of the premises now owned by the plaintiffs, and across, one of these millponds, thus dividing the pond into two sections. The waters from the easterly portion were conducted under the new street by two .openings, the northerly one being slightly above the plaintiffs’ premises. In 1878 the defendant closed the southerly opening and enlarged and reconstructed the northerly one. It appears from the evidence that in making this change the defendant left certain walls or abutments in the bed of the pond in such a manner as not to interfere with the free flow of the waters through the pond as- it then existed, but.-which, under the facts hereafter to be mentioned, operated to work damage to the plaintiffs, and this negligent act on the part of the defendant appears to be. the substantial cause of complaint on the part of the plaintiffs.

This was the situation at the time plaintiffs constructed their building upon the bank of the stream in 1890 ; they were located upon this river, the outlet to the pond being just above their premises, with no apparent obstruction to the flow of the water, or anything apparently intended to change the course of the stream in flowing past the premises of the plaintiffs. In the year 1898 the board of health of the city of Yonkers, and which is alleged to have been the agent of the defendant, tore down and destroyed all of the dams in the PTepperhan river in the city of Yonkers, both ■above and below the plaintiffs’ premises, The complaint alleges that this work was negligently done on the part of the defendant, no precautions being taken to protect the buildings of the plaintiffs upon the hanks of the stream, and that as a result of the removal of these dams the Nepperhan rivér was changed from a sluggish or impounded stream to a rapidly moving torrent, especially at high water, and that by reason of the change in the force of the current the stream has cut down below the old level of the pond from seven to ten feet, and that this has exposed the original wall left there by the defendant in 1878, resulting in a radical change in the direction of the flow of the waters, throwing them directly against the foundations of the plaintiffs’ buildings and undermining them to such an extent as to require many thousands of dollars expenditure in protecting the property. The defendant, subsequent to the commencement of this action, removed the old Avail, and the court refused the injunctive aid asked for by the plaintiffs, but gave a judgment for the amount of the damages sustained by the plaintiffs. The defendant appeals.

It is further urged by the plaintiffs in their complaint that the defendant, after the destruction of these dams, laid out, opened, paved and guttered streets within and without the drainage area of the Nepperhan river in the city of Yonkers in such a way as to rapidly accumulate and discharge the rainfall into the said stream, thus increasing the danger to the property of riparian owners; but in the view we take of this case, it is not necessary to determine whether the defendant Avas within its rights in this regard or not,

By the provisions of section 1 of title 9 of chapter 184 of the Laws of 1881, the mayor, the supervisor, the- president of the common council, the president of the board of water z commissioners, the president of the board of police, and the.health officer were constituted a board of health for the city of Yonkers, and this body, in \ no way answerable to the common council or to the city in its corporate capacity for its acts, appears to have acted under the provisions of section 2 of the above title in tearing out the dams in the 27epperhan river. We are quite clear that under the rule laid down in Bamber v. City of Rochester (26 Hun, 587, 589) and approv'ed. (97 N. Y. 625) the board of health of the-city of Yonkers is not the agent or servant of the defendant, and that for any act of negli. gence on the part of the said board of health the city of Yonkers is not liable. We are none the less persuaded that the plaintiffs have a right to recover the damages which they have suffered.

It will be assumed that the defendant is not liable to the plaintiffs by reason of anything done in laying out Warburton avenue in-1860, or in the construction of the bridge or. causeway over the millpond in the conditions then prevailing, for it- is not pretended that any damages resulted to the premises until some years after the plaintiffs had constructed their building in 1890. . But it does appear that in constructing this bridge or causeway in 1860, the defendant constructed a wall diagonally across the channel of the stream in its natural-course, and that when the work of reconstructs ing this bridge was undertaken in 1878 this wall was cut down to about the level of the millpond as it then stood, and was left there by the defendant. This did not constitute actionable negligence, in so far as the plaintiffs are concerned, or their predecessors in title, for no damages resulted ; the impounded waters, with an adequate outlet for the flow of the stream, abov.e" the capacity of the dam, were not affected by the old wall, for the waters flowed over them in a sluggish way, and did hot follow the original channel. When, however, the board of public health, composed of the leading public officials of the. city, abolished the dams in the river and caused the water to flow in the natural channel, it became the duty of the city of Yonkers to remove any structure which it may have placed in the stream which operated to change the flow of the waters from their natural channel to the. damage of these plaintiffs. The city of Yonkers would clearly have had no right to construct the wall after the dams were removed in such a manner as to change the natural flow of the stream to the damage of the plaintiffs, and it could have no higher right to maintain the same under the conditions existing in the absence of a prescriptive right, which it could not have, gained by reason of the existence of the wall under the old conditions. The defendant appears to have recognized this fact, for it has, since the commencement of this action, removed the obstruction, and the court has réfused to the plaintiffs the injunctive relief because of this change in the situation, yet the defendant is here urging that it is not liable for the damages which the plaintiffs have suffered through its wrong. We cannot agree with that contention. The defendant gained all of its rights in respect to Warburton avenue and its bridges across the mill ponds while the Nepperlian river at this point was used for private purposes; while its mill dams constituted private property, and when the time came that these mill dams became a public nuisance, and the dams were removed by public authority for the purpose of restoring the stream to its normal flow, it became the duty of the city of Yonkers to adjust itself to this changed condition, and not to permit its former structures, for which it is not urged there was any reason or necessity after the-year 1878, to work damages to those lawfully occupying premises upon the banks of. this stream. The .evidence shows that by the removal of the dams the stream became rapid in its flow; that it cut down below the former bed of the mill ponds some seven to ten feet, and that the old wall maintained by the city of Yonkers, for no other apparent purpose than to save the expense of removing the same, operated to throw the waters of this stream, augmented to some extent by the flow of gutter waters into the ■river, against the foundations of the plaintiffs’ buildings, thus doing the damage for which a -judgment has been entered in this action. We are of opinion that under these facts the judgment is light and should be sustained.

The judgment appealed from should be affirmed, with costs.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment affirmed, with costs.  