
    Fred. Busch et al.. Pl’ffs, v. The New York, Lackawanna & Western Railway Co., Def't.
    
      (Superior Court of Buffalo,
    
    
      Equity Term,
    
    
      Filed November 8, 1890.)
    
    Nuisance—Stagnant water.
    The water in the pits constructed by defendant in building an embankment for its road in hot weather becomes stagnant and offensive. Held, that the fact that plaintiffs had no house or building on their adjoining land which was occupied by themselves or another, while rendering the measurement of damage more difficult, would not impair their right to maintain an action to abate the action.
    Action to restrain defendant from' keeping and maintaining an open ditch or excavation ion its land and to recover damages for injuries by overflow and damage to rental value of plaintiffs’ land.
    
      Frank B. BerMns, for pl'ffs ; F. D. Loche, for deft.
   Hatch, J.

This action was tried with the cause of Diegleman against this defendant, is for like relief and dependent upon substantially the same facts, the difference being that plaintiffs are owners and interested in a tract of 'vacant land fronting upon Military road and adjoining the land of defendant, adjacent to where it has excavated the borrow pits. The overflow is the same and from the same causes. In addition thereto claim is made that the water standing in the pits in hot weather becomes stagnant and offensive, creating a nuisance, which impairs the rental value of plaintiffs’ lands and prevents sales of lots for building purposes. The proof shows that the tract of land has been laid out into lots, streets opened and graded, sidewalks laid for the contemplated purpose of making the land available and saleable for residence purposes. It scarcely needs proof to show that the presence of stagnant water standing at all times in the pits must impair the rental value of the property and also tend to prevent sales.

In the Diegleman case it is not apparent from the proof that any damage is suffered on account of the stagnant water, and the claim is made by defendant that no damage can accrue to this plaintiff for the reason that there is no occupant of the adjoining property. This is meant, doubtless, in the sense that plaintiffs have no house or building upon the premises which is occupied by themselves or another.

In Ruckman v. Green, 9 Hun, 225, the supreme court considered this question and condemned the claim of defendant as unsound, holding that the land being vacant made the measurement of damage more difficult, but did not impair the right to recover. It follows that plaintiffs in this action are entitled to relief and judgment directing defendant to cause the removal of the water either by filling the pit or drawing it off, and prohibiting defendant from retaining in its pits stagnant water.  