
    Miller et al. v. New York, L. & W. Ry. Co.
    
      (Superior Court of Buffalo, General Term.
    
    December 31,1888.)
    1. Railroad Companies—Construction—Repairs.
    A railroad lease provided that the lessor would issue its bonds or stock for the payment of all work which the lessee might desire to have done, “the cost of which is chargeable to construction account. ” When the lease was made, there was a trestle at one point of the road, which the lessee subsequently filled with an embankment, and the lessor issued its bonds for the cost thereof. Held, that such filling was not in the nature of repairs hy the lessee, but was the construction of a portion of the lessor’s road.
    •2. Same—Lease—Change op Construction—Liability of Lessor.
    For damages to adjoining land, resulting from the nature of the embankment, and not from lack of care by the lessee in its construction, the lessor is liable.
    Appeal from trial term.
    
      Action by Peter Miller and Barbara Miller to recover damages to real property. Upon the trial it appeared that the defendant was a corporation duly-created under and by virtue of the laws of the state of New York for the purpose of Constructing and operating a railway from the city of Binghamton,. N. Y., to the international bridge in the county of Brie, N. Y. The defendant’s premises adjoin those of plaintiffs on the easterly and northerly sides-thereof. Previous to October, 1882, defendant had constructed its road, and laid its tracks upon trestles, about 20 feet above grade on its land adjoining plaintiffs’ premises. In October, 1882, defendant executed and delivered to-the Delaware, Lackawanna & Western Railroad Company, a corporation existing under and created by the laws of the state of Pennsylvania, an indenture of lease of its said railway, for and during the full term of its corporate existence, and thereupon the said last-named corporation entered upon and took possession of the said railway, its appurtenances and appliances, and has since continued to operate the same. In 1883, 1884, and 1885, the lessee caused the said trestle to be filled with clay and earth, making an embankment 20 feet high upon its land, adjacent to and along the whole width of the plaintiffs’ premises. In seasons of rainy weather, since said filling, clay and earth have washed down from said embankment to and upon plaintiffs’ premises, rendering them unfit for the purposes used, and occasioning the damage-here complained of. In the construction of the embankment it was practicable to have prevented this washing, by the construction of a ditch or retaining wall upon the defendant’s premises. The defendant, in payment of the-cost of constructing such embankment, issued and delivered to its lessee its-bonds for the amount thereof, the said filling being done by and under direction of the officers of the lessee. Judgment for plaintiffs, and defendant appeals.
    
      John <?. Milburn, for appellant. Seward A. Simons, for respondents.
   Hatch, J., (after stating the facts as above.)

By the terms and conditions of the lease, executed by these corporations, it was, among other things, provided that the defendant should maintain its corporate existence, and perform all acts and things thereunto necessary, and that it would from time to-time, upon request of the lessee, make, execute, issue, and deliver its bonds- and stock for the construction of locomotives, machinery, and equipments for said railroad, and for the construction of any extensions or branches, or any other railroads, which the lessor in the exercise of its rights possessed the-power of doing, and for all other things, work, or works, which the lessee-may desire to have done in the exercise of said rights, the cost of which is-properly chargeable to construction account. It is under this article of the-lease that the lessee exacted, and the lessor executed and delivered, its bonds-in payment for the cost of constructing the embankment. It is, however, claimed by defendant that such embankment was no part of the original1 structure of defendant’s road; that it fully completed its chartered duty to-construct when its road was in operation upon the trestle, from which no-damage was sustained by plaintiffs; and that the filling of the trestle was-the act of the lessee in the nature of a repair over w'liich defendant exercised no control. It may be conceded that when the lease was executed, the roadl was in operation, and the public duties of defendant discharged sufficiently to support the lease executed by it. It was, of course, possible to continue the operation of the road upon the trestle, but it is common knowledge that such structures are usually temporary where the nature of the ground renders an embankment practicable. We think that a fair construction of the-lease and the acts of the parties show that the trestle was regarded as a temporary structure only, to be thereafter filled, making a permanent road-bed o£ earth. The lease in terms provides, in the clause relating to the construction of other roads or branches, that the lessor, when called upon, will issue its. bonds or stock fbr the payment of all work or works which the lessee may desire to have done, the cost of which is chargeable to construction account. Under that article the work in question was performed, and the lessor, in recognition thereof, paid the cost therefor in the manner provided. When constructed, it became a permanent part of defendant’s road, in like manner as any other portion. Such construction was not in the nature of a repair, as it supplanted the trestle, making the permanent and final support for the ties arid rails. Such being the character of the structure provided for by defendant, it became and is its property and improvement, and for all damages resulting therefrom it is liable. Mairs v. Association, 89 N. Y. 498, 505. It is insisted by defendant that the damage claimed here did not arise from the embankment as a structure, but from the manner in which the work was performed, for which the lessee alone is liable. It is undoubtedly true that the defendant has authority under its charter to contract for the construction of any or all portions of its road, and not be liable for damages incurred as the result of negligence on the part of the contractor in the manner of the performance of the work. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. Rep. 755; King v. Railroad Co., 66 N. Y. 181. In the present case the lessee performed the work under the direction of its own ofiicers, the lessor being interested therein only as to the result of the work, and not in the manner of its execution, or the means by which it was accomplished. The lessee, therefore, occupied the relation of an independent contractor, for whose negligence the lessor is not liable. The question, therefore, presents itself, Is the damage here complained of the result of negligence in the manner of the performance of the work, or does it arise from the structure itself, without reference to skill and care in its construction? If the former, the lessee is alone liable; if the latter, the lessor. Storrs v. City of Utica, 17 N. Y. 104; Harrison v. Collins, 86 Pa. St. 153; Lockwood v. Mayor, 2 Hilt. 66. So far as the case discloses, the embankment was constructed in the ordinary manner, and by the ordinary means usually employed. The damage arose by the washing down of earth upon plaintiffs’ premises in rainy seasons. It is evident that an embankment of this character will have sloping sides, being wide at the base and narrow at the top; and the result of such construction is that water-will shed from it, and carry silt and earth in greater or less quantities, depending upon the volume of water, and the character of the soil. Such result does not follow from lack of care in the manner of construction, but from the nature of the structure. It is suggested that this might have been avoided by building a retaining wall, or digging a ditch, but there is nothing in the case to show that such was the plan of construction. It is quite apparent that embankments may be built in various ways, by retaining all the earth between walls, or by a ditch to carry off all the water shed, or by filling in the earth to the required height without either. Such suggestions, therefore, relate rather to the plan of construction than to the manner of performing the work. Here we find an embankment constructed from which, from its inherent character, damage results. There is no evidence to show that the lessee did other or different than to construct an embankment of the character contemplated by the parties. To say otherwise would be to presume the lessee guilty of negligence; but presumptions of negligence only arise upon proof, (Curtis v. Railroad Co., 18 N. Y. 543; Cordell v. Railroad Co., 75 N. Y. 330,) and here there is none. On the other hand, the defendant has acquiesced in the manner of construction, accepted, paid for it, and is now receiving the benefits under it. We think that these facts warrant the presumption that the embankment constructed was such as the defendant contracted for, and, damage from it having resulted, the defendant is liable. The judgment and order appealed from is therefore affirmed, with costs.

Beckwith, O. J., did not sit. Titus, J., concurs.  