
    Joseph Atwater, App’lt, v. The Trustees of the Village of Canandaigua, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 21, 1891.)
    
    1. Nuisance—Flooding- lands.
    Defendants were authorized by chap. 658, Laws 1886, to construct a sewer in the outlet of Canandaigua lake, and for the purpose of maintaining the height of water in the lake, to erect and maintain locks or bulkheads, with gates, in said outlet. In doing so they erected a coffer dam during low water, which at the time of the spring freshets retained the water on plaintiff’s distant pasture land for a time, to his damage. Held, that the circumstances of the case were not such that the omission of the defendants to resort to all possible means to overcome the obstruction by the dam to the flow of water into and through the channel during the time reasonably necessary for the work rendered them chargeable with negligence in the performance of their duty, although the consequence was that water remained on plaintiff’s premises longer that season than usual.
    3. Same.
    The action of the defendants in the performance of the work was confined within the limits where they had the right to execute it, and the effect upon property beyond those bounds resulting in damages was the consequence < f such performance of the work and not the direct act of its execution by them, and they were therefore not liable.
    
      (St. Peter v. Denison, 58 N. Y., 416, distinguished.)
    2. Same.
    In order to have protection against liability the work must not only be done for the purposes of the public and by authority of law, but it must be done in manner and method reasonable with a view to as little injury to others as practicable, and with reasonable care, skill and dispatch.
    Appeal from judgment entered upon order of the general term of the supreme court in the fifth judicial department, overruling exceptions ordered heard there in the first instance, denying motion for a new trial and directing judgment on the verdict in favor of the defendants.
    The plaintiff alleged that in March, 1888, the defendants wrongfully, negligently and carelessly erected a coffer-dam in the outlet of ■Canadaigua lake at the foot of Main street in the village of Canandaigua, and maintained it there, by which the water of the lake was backed upon and over his pasture land causing damage. The defendants, admitting the existence of the dam, put in issue those ■allegations in other respects and matter alleged in justification. And it appeared that at the time in question there were two outlets of the lake. One of them, known as the Du Bois outlet, may be termed the old one, as by the opening of a channel more than ■eighty years from the lake to the then existing outlet it had since ■continued such, and the other west of it known as the feeder was made by the Ontario Hydraulic company in 1856 pursuant to authority given by Laws of 1855, chap. 234, , under which the company having obtained the right of way, made the channel leading from the original outlet a short distance from the lake and at the point where the original outlet turned to go east. This new channel was made to supply water to mills below and connected with the old channel one and a half miles from its mouth. Across these outlets and along near the lake shore was a highway or street known as Lake Road, which at the foot of Main street came into the latter. By Laws of 1886, chap. 658, the defendants for the purpose of obtaining drainage ■and sewerage for the village, and to drain and reclaim wet and swamp lands, were empowered to construct a public sewer along the bed of the outlet and the new channel formerly constructed by the Hydraulic Company, and for that purpose to take and appropriate, in the manner provided, the right to use and occupy such -outlet and new channel with such lands as should be necessary to carry out those purposes, but the rights and privileges granted .should be so exercised that the waters of the lake should be maintained at a height not less than ordinary low water mark. And for the purpose of maintaining the water at proper level the defendants were authorized to erect and maintain in the outlet and such new channel locks or bulkheads with gates, etc., to so control and regulate the discharge of the waters of the lake as to comply with the provisions of the act.
    In 1887 the defendants acquired the interest and right formerly had by the Hydraulic Company to regulate and control the flow •of water into and through the new channel or feeder and the right to occupy its bed for such sewerage and drainage with the right of way along the banks, etc. In March, 1888, with a view to the ■construction of a bridge in the highway across this channel and in combination with it bulkheads and gates, the defendants caused to be erected a coffer-dam, and thereafter proceeded to construct the bridge in the place of an old one which was in a dilapidated condition. The coffer-dam remained there until in August, when the use for it in the construction of the bridge was accomplished .and the dam was removed. The cause of the plaintiff’s complaint was that the effect of the dam was to hold back the water of the lake and cause it to remain on his low pasture land situated up the lake a quarter of a mile distant from the dam. The court directed a verdict for the defendants.
    
      William H. Smith, for app’lt; Thomas H. Bennett, for resp’ts.
    
      
       Affirming 30 N. Y. State Rep., 587.
    
   Bradley, J.

It was within the power of the defendants to construct the bridge and bulkheads with gates at the place where the work was located and performed. The trustees of the village of Canandaigua were commissioners of highways in and for the village, having the powers of such commissioners, Laws 1854, chap. 352, § 1, and in the construction of the bridge they were proceeding pursuant to authority and in the performance of their duty. The coffer-dam placed in the channel was necessary to the construction of the bridge. It had the effect to stop the flow of water from the lake through the channel known as the feeder, and the only outlet for it during the time the dam remained there was through the Du Bois channel. There was evidence tending to prove that from the time of the removal or opening in February, 1888, of the Chapinville dam (located about four miles from the lake) the Du Bois outlet had the capacity to take from the lake and did carry off as much water or more than previously flowed through both channels.

This fact was controverted, and the conclusion was warranted that the coffer-dam had the effect to obstruct the discharge to’ some extent of the quantity of water, when high in the lake, which the two channels had been accustomed to carry off before the removal of the dam, and that the continuance of water on the plaintiff’s land longer than it otherwise would have remained there was attributable to the cofferdam. While the water was no higher and covered no more of this land that spring than it had years before, and was not so high as in the spring of 1887, it remained on the plaintiff’s pasture field longer; and it was the continuance of it there which impaired the usefulness of the land and substantially deprived him of the beneficial use of it that season. The question, therefore, is whether or not the alleged justification is a defense against liability of the defendants for injury suffered by the plaintiff. The Hydraulic Company took by statute, Laws 1885, chap. 234, the right to maintain bulkhead and gates in the channel subject to “ liability for all damages occasioned thereby actually sustained by any person whatsoever.” The mere acquirement of the rights of that company afforded no means of protection of the defendants against liability for injury occasioned by the use of the privileges to which they succeeded. Nor can they be relieved unless their rights were superior to those of persons engaged in work private in character. The doctrine, however, is well established in this state, that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized bv law, are not liable for consequential damages occasioned by it to others unless caused by misconduct, negligence or unskillfulness. Radcliff's Executors v. Mayor, etc., 4 N. Y., 195; Bellinger v. N. Y. C. R. R. Co., 23 id., 42 ; Moyer v. N. Y. C, etc., R. R. Co., 88 id., 351; Uline v. N. Y. C., etc., R. R. Co., 101 id., 98. And such is the weight of authority elsewhere. Transportation Co. v. Chicago, 99 U. S., 635, 641.

By virtue of these lawful powers the trustees, as commissioners of highways, were authorized to construct the bridge, and the power was conferred upon them by statute to erect bulkheads and gates to regulate the flow of water in the channel, which the municipal corporation had appropriated for the purposes of sewerage and drainage. Laws 1886, chap. 658. And they had the lawful authority to do whatever was essential to the proper performance of the work of making the improvement It was for that purpose only that the coffer-dam was erected. The necessity for it made it lawful, and its usefulness was dependent upon the obstruction by it of the flow of water in the channel at the place where the improvement was made. The necessary consequence was to hold back the water which would otherwise have gone through this one in excess of that which passed down the other channel during the time the coffer-dam was there.

It is urged on the part of the plaintiff that the damages were incurred by the direct and physical invasion of his land by the defendants in the construction of the dam; and that it constituted a taking of his property within the meaning of the provision of the constitution that private property shall not be taken for public use without compensation. This subject has had much discussion and judicial consideration; and that consequential damages to property of others, occasioned by the performance of public work, are not treated as the taking of it within the meaning of the constitution is not an open question in this state, as will appear by reference to the cases before cited. The dam did not nor did any of the work encroach upon the plaintiff’s premises. The right to construct this dam and thus obstruct the flow of water in that channel to the prejudice of owners of property affected by it depended upon its necessity for the purpose of the work of the public improvement according to the plan devised for the structures to be erected. And assuming as we do, for the purpose of the question now under consideration, that it was such, and that they properly and expeditiously performed the work, it is not seen within the doctrine before stated how the defendants can be held liable for the consequences resulting from it to others.

The principle applicable is the same whether the injury to the use of property resulting in damages is physically upon it or not, provided they are consequential. Within this rule serious injury to property may be occasioned by the lawful exercise of powers of public character pursuant to law, and that if the work is carefully and skillfully performed the consequences may be damnum absque injuria when the legislature has provided for no compensation. In such case the protection of the owner of property not taken or appropriated which may be subjected to hazard of injury is in the care and skill to be observed by those engaged in the execution of the work." If they fail to do that they are liable for the consequences of such failure. In the present case the action of the defendants in the performance of the work was confined within the limits where they had the right to execute it, and the effect upon property beyond those bounds resulting in damages was the consequence of such performance of the work and not the direct act of its execution by them. In that respect this case is distinguishable from that of St. Peter v. Denison, 58 N. Y., 416. There the defendant was held liable because by casting stone upon the premises he committed a trespass; and the fact that he was engaged in the performance of a public work and the fragment of rock was in the process of blasting thrown upon the land of another was no justification. Here the injury to the plaintiff’s premises was not done directly by any act of the defendants, but it was the consequence following and traceable to the work as the cause. In the one case the act of the party was and in the other not a direct invasion of the premises of the plaintiff. The distinction between the principle of the Radcliff and Bellinger cases and the St. Peter case is recognized by Judge Folger in the latter. The dam was but a temporary structure essential to make the public improvement and was removed when that was accomplished. The damages so resulting from such cause have quite uniformly been treated as furnishing no common law remedy. Plant v. L. I. R. R. Co., 10 Barb., 26; Matter of Squire, 34 N. Y. State Rep., 722.

In Pumpelly v. Green Bay Co., 13 Wall., 166, the defendant not only by its dam raised the water in Fox river above the height authorized by the statute, but the dam and its consequences of flooding the plaintiff’s land was permanent. And in Transportation Co. v. Chicago, the Pumpelly case and another are mentioned as those in which the extremest qualification of the doctrine is to be found in support of an action for damages sustained in consequence of the performance of a public work. But added that in those cases it was held that a permanent flooding of private property may be regarded as a taking.” And in that case the court held that “acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right ©f action. This is supported by an immense weight of authority.” In order to have protection against liability the work must not only be done for the purposes of the public, and by authority of law, but it must be done in manner and method reasonable with a view to as little injury to others as practicable, and with reasonable care, skill and dispatch.

It may be observed that the plaintiff does not allege delay on the part of the defendants in the commencement or prosecution of the work of construction of the bridge. The further question is whether the inference from the evidence was fairly permitted that the defendants were chargeable with any want of care which caused the injurious consequences suffered by the plaintiff. The propositions which the court was specifically requested to submit to the jury in that respect were whether the defendants constructed the dam at an unreasonable time, being shortly before the spring floods; also whether they should not have taken the water around the place of the work, rather than hold it back from the channel by the dam. The time and the necessity for the construction of it were matters to be determined by the trustees, upon whom was imposed the duty in that respect. And assuming, as we must upon the evidence, that they acted in good faith, their exercise of discretion in those respects is not the subject of review. Talcott v. City of Buffalo, 125 N. Y., 280; 34 N. Y. State Rep., 871.

It appears that it was necessary to put in the dam when the water in the channel was low, and that it could not be properly done in the spring during high water which usually came in April and May, and sometimes later. While it may be that they could with propriety have, without serious prejudice to the use of the highway by the public, have delayed the work until low water in the summer, there is no support for the imputation of bad faith on the part of the defendants in erecting the dam at the time they did. If the municipal corporation had owned the adjacent land it may at the requisite expense, which it seems would have been large, have dug a channel of sufficient width and depth around the place where the work was done; but it does not appear that this could have been accomplished by any reasonable means. The circumstances of this case are not such that the omission of the defendants to resort to all possible means to overcome the obstruction by the dam to the flow of water into and through this channel during the time reasonably necessary for the work rendered them chargeable with negligence in the performance of their duty, although the consequence was that water remained on the plaintiff’s premises longer that season than usual.

These views lead to the conclusion that the evidence was not such as to support a verdict for the plaintiff.

The judgment should be affirmed.

All concur.  