
    Thomas Rutherford, Respondent, v The Village of Holley, Appellant.
    (Argued March 2, 1887,
    decided April 19, 1887.)
    A muncipal corporation is not made liable by every change m the natural, surface or condition of land made in the improvement of a street which, increases the flow of surface water on adjacent premises, and a substantial change m the direction or volume of the water must be shown to have resulted from the acts of the corporation.
    
      Noonan v. City of Albany (79 N. Y. 470), distinguished
    This was an appeal from an order of General Term, reversing a judgment in favor of defendant entered upon the report of a referee.
    
      The action was brought to compel defendant to close a sluice-way under Batavia street, in the village of Holley, which plaintiff 'claimed discharged the surface water on to a lot adjoining the same, owned by one Cary, and thence on to-plaintiff’s lot.
    The following is the opinion :
    “ The fact is uncontroverted that the natural drainage of the surface water from the north-easterly side of the hill, over which Batavia street was constructed, was through a depression at the foot of the hill, on Batavia street, which extended over the Cary lots and the lot of the plaintiff, from whose lot, prior to 1862, the water was discharged into a gulley or water-course at the north-westerly corner of the plaintiff’s tannery. It is also evident that the injury which the plaintiff has sustained to his tannery building since that date from the flow of the surface water over his premises, has resulted from the closing up of the outlet by the wall erected by the State, whereby the water was turned from its natural course and thrown against the side of the tannery. But this is not decisive against the right of the plaintiff to maintain the action. It is claimed that the village by the grading of Batavia street in 1863, and the construction of gutters therein, and of the sluice across Batavia street, has increased and facilitated the collection and discharge of surface water at the lowest point in the street, and that as a consequence a greater amount of water than naturally would have collected there, has been cast upon the Cary lot, and from there upon the premises of the plaintiff.
    “ The finding of the referee, which is not without evidence to support it, negatives this contention. The referee, in his twentieth finding, in substance finds that the water discharged from the sewer-plate or grate over the sluice on the east side of Batavia street-, passes on to the plaintiff’s premises from the Cary lot at about the same place that the water has at all times since 1821, when said street was laid out, passed upon the same ; that it is the drainage from substantially the same territory; and that with the same amount of rain-fall ‘ no greater amount or volume of water passes or is discharged on to plaintiff’s premises from this sluice (since said Cary’s sewer was closed), than did pass or was discharged on to the same at all times since said streets (Batavia and State streets) were laid out.’
    “ It is not claimed that the course or amount of surface water which found its way to the foot of the hill before Batavia street was laid out in 1824, was increased by the original construction of the street. The finding, therefore, is equivalent to a finding that the present discharge from the sluice does not exceed the natural drainage at this point, of the surface water of the adjacent territory. It is insisted, however, that by the construction of the gutter on the north side of Batavia street, and the sluice across the street, the water is made to flow in an artificial channel, and is collected in a body and east upon the plaintiff’s lot. The gutter and sluice were constructed for the protection and improvement of the roadway. It is not improbable that the turnpiking of the street and the construction of the gutters diminish to some extent the waste by soakage and evaporation, and thereby increase somewhat the quantity of water which collects at the sluice, and which is discharged on to the Cary lot, and ultimately on the plaintiff’s lot. But it would be quite unreasonable to hold that every change in the natural surface or •condition of land, made in the improvement of a street or highway, which to any extent increases the flow of surface water on adjacent premises, constitutes an actionable injury.
    
      “ The ease of Noonan v. Gity of Albany (791ST. T. 470,476) and cases of kindred character, establish no such unreasonable and inconvenient doctrine. But it is said that the water, by the acts of the defendant, is thrown upon the plaintiff’s lot in a body, whereas before it was dispersed over the surface and was absorbed, doing comparatively little injury.
    “ But there is no finding that the manner of discharge has been materially changed by the acts of the defendant, and such a finding would have been in conflict with some of the evidence, although it might have been warranted by other evidence. It is true that it is found that the water passes on to the plaintiff’s lot from the Cary lot substantially in a .body. But this finding is made in connection with another finding, that the water now passes over the surface of the Cary lot at the lowest point, before reaching the plaintiff’s lot. The defendant is not responsible for the manner in which the water flows over the plaintiff’s lot, unless it is attributable to some act of the defendant. This question was controverted on the trial.
    “ The Cary sewer which connected with the sluice was closed in 1879. It is found that since that time no water has passed through it, and the water which now reaches the plaintiff’s lot, first passes through the sluice across the road to the east side thereof, where it is interrupted by the wall or face of the closed Cary sewer, and escapes by ‘ welling up ’ through the sewer plate or grade, and thence passes over the surface of the Cary lot and on to the lot of the plaintiff. The construction of the sluice probably facilitates the passage of the water from the roadway, but it was not shown, or at least it was not shown by uncontradicted evidence, that the construction of the sluice, or the manner in which the water was discharged from it, affected materially the flow across the plaintiff’s lot, from what it originally was before the sluice was constructed.
    
      “ It is claimed that the excavations in the street and adjacent lots, made by the State in 1862 for canal purposes, changed to some extent the direction of the drainage, and that the village had no right afterward, by turnpiking the street, to alter to the prejudice of the plaintiff’s lot, the surface of this £ new earth ’ created by the canal authorities, and that in determining the rights of the parties this new condition must be regarded in the same way as though it was the original and natural condition of the land. It is a sufficient answer to this claim that there is no satisfactory evidence that the act of the defendant in restoring the highway, made any substantial change in the direction or volume of the surface water, unfavorable to the plaintiff. But, at all events, we are of opinion that if the defendant, in improving the highway, did not increase the flow of surface water on the plaintiff’s lot beyond what it was prior to the excavation, they committed no wrong to the plaintiff.
    “ Our conclusion, after a careful examination of the case, is adverse to the General Term. The General Term reversed the judgment of the referee on the ground that the facts-found by him showed an actionable injury, within the case of Eoona/n v. Oity of Albany {supra). We differ with the General Term on the merits, simply as to the construction of the findings of fact by the referee, which are numerous and. complicated.
    “We think there are no valid exceptions to evidence.
    “ The order of the General Term should, therefore, be reversed, and the judgment on the report of the referee affirmed.”
    
      John H. White for appellant.
    
      John Cunneen for respondent.
   Andrews, J.,

reads for affirmance.

All concur.

Judgment affirmed.  