
    (75 Hun, 422.)
    DRAKE v. NEW YORK, L. & W. RY. CO.
    (Supreme Court, General Term, Fourth Department.
    February 15, 1894.)
    Water Courses—Obstruction by Railroad.
    In constructing a railroad across a water course the railroad company is obliged to do so with care and skill, so as to protect the adjacent proprietors from injuries resulting from overflows.
    Appeal from circuit court, Chemung county.
    Action by Joseph C. Drake against the New York, Lackawanna & Western Railway Company. From a' judgment entered on a verdict in favor of plaintiff for $1,216, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    Robert T. Turner, for appellant.
    Reynolds, Stanchfleid & Collin, for respondent.
   HARDIN, P. J.

Plaintiff has been the owner of a farm, for some 24 years, consisting of about 180 acres, situated in the town of Horseheads, a short distance west of West Junction. Under the laws of the state of New York, the defendant constructed its road between the city of Binghamton and the city of Buffalo, and in doing so crossed the farm of the plaintiff, having acquired the right so to do by condemnation proceedings; its road passing in a westerly direction, severing his farm so that a portion thereof lies on the north side of the railroad, and a portion thereof on the south side of the road. Plaintiff has recovered damages alleged to have been sustained by reason of water reaching his land on the south side of the defendant’s road. Near the close of the trial, it. was held “that there is no right of recovery here for any damages done to the land north of the railroad;” and the question finally submitted to the jury was “whether, in the exercise of reasonable diligence, they should made a larger sluice way through the railroad, and as to whether, if they were negligent in that, that such negligence caused the injury.” In delivering to the jury the charge, the learned judge said:

“There are two propositions which the plaintiff must establish before he can recover in this action: The first proposition is that the defendant has been "guilty of negligence; and the second proposition, that such negligence has caused this injury of which the plaintiff complains.”

And further on he proceeded to say:

“That that canal constituted, in the sense of law, a water course, so that this defendant owed a duty, in the construction of this road, to provide a water way or water course there sufficient to carry off all the water that might reasonably be expected to flow through it. Then, the first question for you to determine is, did it fulfill its duty, and did it provide a sufficient water way to carrry off all the waters that might reasonably be expected to flow there? * * * You are to consider all those facts, and to determine the single question as to whether, under the circumstances as they existed at the time that this company built its road, they supplied a water course which was sufficient to carry off such water as might reasonably be expected to flow down through the channel of the canal, and through this water way or sluice way. Now, gentlemen oí the jury, if you find that they provided such a course as would be sufficient to carry off the water that might reasonably be expected at that time, then I charge you that they were not guilty of negligence, and the plaintiff cannot recover. If they have failed, however, to provide such a water course as would carry off the waters that might reasonably be expected at that time, then the plaintiff must establish another proposition, before he can recover, and that is that such negligence on the part of the defendant has caused this injury.”

After the body of the charge had' been delivered, in response to a request made in behalf of the defendant, the court charged that the defendant was not “absolutely required to furnish such a passage way for water, but they were only held to reasonable care in providing a water way sufficient.” It is alleged in the complaint:

"That at the time defendant constructed its roadbed or railway, as herein-before alleged, through the said towns of Horseheads and Big Flats and the farm of this plaintiff, there existed and ran a natural water course or brook or creek from Sing Sing creek, or the vicinity or locality of Sing Sing creek, easterly or northeasterly, through the said towns mentioned and plaintiff’s said farm, which, although liable, by reason of the nature of the adjoining lands or territories, to sudden rises or increase of the volume of water, was, within said towns, and through plaintiff’s said farm, confined to a certain well-defined course and channel, by reason of the high banks on either side thereof.”

And it is alleged that prior to the construction of the defendant’s road “the water of the said water course, in times of freshet and flood, as well as in ordinary times, was confined and flowed within the banks of said stream.” Evidence was given upon the trial tending to support the allegations of the complaint, and it justified the instructions as to the law given by the trial judge to the jury. Vernum v. Wheeler, 35 Hun, 53; Mitchell v. Railroad Co., 36 Hun, 177; Brown v. Railroad Co., 12 N. Y. 486. In Bellinger v. Railroad Co., 23 N. Y. 42, in the course of the opinion delivered, it was said that the defendant had a right to construct its road, and in doing so it was “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.” The quotations we have made from the. charge delivered in this case seem to indicate that that rule was observed. See opinion of Merwin, J., in Mundy v. Railroad Co., (Sup.) 27 N. Y. Supp. 469, and cases therein cited.

2. The evidence does not indicate any affirmative act or omission of duty on the part of the state which relieves the defendant of its obligation to so use its property as not to cause injury to the plaintiff, an adjacent owner., Masterson v. Railroad Co., 84 N. Y. 247.

3. The evidence relating to the damages sustained by the plaintiff was properly received. Hartshorn v. Chaddock, 135 N. Y. 122, 31 N. E. 997.

4. We are of the opinion that the court committed no error in denying the defendant’s motion for a nonsuit.

5. It may be that the verdict of the jury awards the plaintiff a liberal compensation for the injury which he sustained; - but, upon an inspection of all the evidence, we are of the opinion that the special term was warranted in refusing to grant a new trial on the ground that the damages were excessive. The foregoing views lead to an affirmance. Judgment and order affirmed, with costs. All concur.  