
    Edwin R. Roberts, Respondent, v. City of Glens Falls, Appellant.
    Third Department,
    March 3, 1915.
    Municipal corporations — water and watercourses — obstruction of culvert conducting natural stream — injury to adjoining landowner.
    A city to which the fee of a public street is conveyed by a grantor who had constructed a culvert thereunder is bound to maintain the culvert free and unobstructed so as to care for the waters of a natural stream which flows through it. Even were the fee of the street in the owner who constructed the culvert, the city, being bound to maintain the street, must keep the culvert unobstructed.
    Where the municipality allows such culvert to become obstructed so that the waters of the stream back up to the injury of an adjoining landowner, it is liable for the ensuing damage.
    The city cannot escape liability upon the theory that it has merely failed to perform a governmental function.
    The liability of the city may be predicated upon evidence that' the obstruction had existed for some time and that it failed to correct the condition, although it had been called to the attention of the mayor and an alderman.
    Appeal by the defendant, City of Glens Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 22d day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes-.
    
      
      J. Edward Singleton, for the appellant.
    
      Howard J. Bush, for the respondent.
   Woodward, J.:

The plaintiff is the owner of a parcel of land in the city of Glens Falls, through which a small brook, rising outside of his premises, flows. This brook leaves his premises at the margin of Murray street, following its regular course, and passes under the highway through a culvert. The premises through which Murray street is constructed, as well as the premises now owned by the plaintiff, were originally owned by the Morgan Lumber Company, and this company constructed the culvert above mentioned, subsequently conveying the fee of the street to the city of Glens Falls. There is no dispute that the culvert had been permitted to become obstructed by the accumulation of debris, gravel, etc., and the evidence is sufficient to justify the jury in finding that on the occasion of certain heavy rainfalls. the water was backed up on the plaintiff’s premises, working damages at least equal to the sum of $400, for which he has judgment against the defendant. The defendant appeals from the judgment, contending that the city of Glens Falls is not responsible for a failure to perform a governmental function, and that the damages are excessive. It seems to be the theory of-the defendant that it has taken merely an easement in Murray street; that the culvert in question was constructed by its predecessor in right in such street, and that it is not responsible for the same because, in the exercise of its governmental powers, it has not chosen to take control of this street. We are of the opinion that this contention is entirely untenable. Without going into the question of whether the fee of the highway is in the city of Glens Falls or in the Morgan Lumber Company, and the former appears to be the better contention, the defendant is certainly bound to maintain the street, and in doing this it could not obstruct a natural watercourse; in the construction and maintenance of a street it was bound to provide for taking care of the water of a natural watercourse the same as any other person or corporation in possession of premises along the course of a stream. Every owner of premises through which a natural stream flows has the right to have the water pass unobstructedly from his property, it is a natural right, inherent in the nature of the case (Scriver v. Smith, 100 N. Y. 471), and if the defendant, in maintaining its highway, was called upon to construct a bridge or culvert (or to purchase its right in such highway with the bridge or culvert already in existence) it was bound to have that bridge or culvert constructed with an opening of sufficient capacity to meet the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as may reasonably be expected to occur although infrequently. (Greeley v. State of New York, 94 App. Div. 605, 607, and authorities there cited; New England Brick Co. v. State of New York, 151 id. 274, 277, 278, and authorities there cited.) It likewise owed the duty of using reasonable care to see that the culvert did not become clogged and unfitted for the purpose for which it was designed (New England Brick Co. v. State of New York, supra), and the evidence in this case shows that the condition had existed for sometime; that the attention of the mayor and at least one of the aldermen had been called to the situation, and that the city had failed and refused to correct the condition.

The judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.  