
    Cornelia Dailey, Respondent, v. The Western New York and Pennsylvania Railway Company, Appellant.
    
      Injunction to restrain the, continuance of a spillway under a railroad constructed, on the bank of an abandoned canal■—•right of the owner of flooded lands, where the water was turned into the canal prism by direction of the Superintendent of Public Works, to hate it remain in that channel.
    
    In an action brought to restrain the continuance of, and to compel a railway company, whose road was constructed along the east bank of the abandoned Genesee Valley canal, to close up, a spillway for water through such embankment, it appeared that the spillway had been constructed to prevent water which flowed into the canal from three creeks, namely, Samp’s creek, White’s creek and Beard’s creek, from flooding its tracks and making them unsafe for operation; that, at the time the canal was discontinued, a ditch, which had been constructed by the State, existed on the easterly side of the canal, into and along which the waters of Samp’s creek, taken by a culvert under the canal, were made to flow until they were joined by the waters of White’s creek (also taken by culvert under the canal); thence the water flowed into Beard’s creek, having been previously taken by culvert under the canal, which emptied into the Genesee river. Before the canal was constructed the land owned by the plaintiff was swampy, being overflowed by Samp’s creek. While the canal was operated it was dry and fit for cultivation. After the canal was abandoned the culvert and ditch became obstructed, and the water of Samp’s creek flooded the neighboring land.
    In 1880 the landowners thereabouts, under direction of the Superintendent of Public Works, cut a ditch through the west hank of the canal and closed up the culvert, turning the water of Samp’s creek into the canal prism, and causing the waters thereof to flow northerly along the canal into Beard’s creek, thus relieving the 'low lands on the east of the canal from the overflow of waters from Samp’s creek. The spillwaj' constructed by the railroad company was thirty-six feet wide and the top thereof was two and sixty-one one-hundredths feet above the bottom of the canal, and, in times of flood, caused such waters to overflow the plaintiff’s lands.
    
      Held, that the plaintiff never acquired any right to have the water run as it did after it was turned into the canal under the direction of the Superintendent of Public Works;
    That the railroad company, having taken the property under the authority of acts of the Legislature, subject to no such right on the plaintiff’s part, was not bound to submit to the burden thus sought to be imposed upon it.
    Appeal by the defendant. The Western New York and Pennsylvania Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 8th day of October, 1898, upon the decision of the court rendered after a trial at the Livingston Special Term.
    
      Charles J. Bissell, for the appellant.
    
      James 8. Thompson and Edward P. Coyne, for the respondent..
   Williams, J.:

The action was brought to restrain the continuance of, and to compel the defendant to close up, a spillway for water, through the-embankment, upon which its tracks were laid, permitting the water to flow upon and over the plaintiff’s lands. ' Most of the facts are undisputed and are briefly as follows: In the year 1840 the State of New York constructed the Genesee Valley canal, from the village of Mount Morris through the counties of Cattaraugus, Allegany, Livingston and Monroe, to the city of Rochester. In Livingston county the canal ran through the town of Leicester, and the plaintiff’s farm of thirty-five acres was situated just east of the line of this canal. The direction of the canal at this point was. north and south, and across the canal from west to east ran three creeks, Samp’s creek, the most southerly one; White’s creek, next northerly; and Beard’s creek, still further northerly. At the time the canal was constructed Samp’s creek had two branches, and these were brought together by the State westerly of the canal, and taken to and under the canal in a single channel by means of a- culvert, and thence into a ditch constructed by the State along parallel tO' and easterly of the canal, nortn to the place where White’s creek was also taken under the canal and brought into this State ditch. From this place the State ditch was continued northeasterly through the plaintiff’s lands, then belonging to one Jones, and the lands of one Whitmore, into Beard’s creek, some distance easterly of the-point where it, Beard’s creek, passed under the canal, which was carried over the creek by means of an aqueduct. Beard’s creek, some distance to the east of the canal, emptied into Genesee river. Before the canal was constructed the lands owned by the plaintiff and J ones, to the east, were mostly swampy, grown up to black ash timber, and were overflowed by the two branches of Samp’s creek. The canal was operated from the time of its construction in 1840 until 1878, and during all these years the plaintiff’s lands to the east of the canal were relieved from the flow of the waters of the two branches of Samp’s creek, which were gathered and conducted into the State ditch and thence into Beard’s creek, and were arable land and fit for cultivation. In 1868 the State ditch had become considerably filled up, and the waters from Samp’s creek had frequently broken over the banks and flooded the adjoining lands, and the State during that year cleaned out the ditch and Beard’s creek from the canal down to the Genesee river. In 1877, the Legislature, by chapter 404 of the laws of that year, provided for the abandonment of this canal and authorized its sale, and the same was abandoned in 1878. The culvert under the canal and the State ditch were obstructed and filled up, so that the waters from Samp’s creek flooded the adjoining lands, both east and west of the canal, and the property owners complained to the State that they were suffering injury therefrom. Thereafter, and in 1880, the Superintendent of Public Works authorized and directed the landowners to, and they did, cut a ditch through the west bank of the canal and close up the culvert under the canal, and thus turn the waters of Samp’s creek into the prism of the canal. The superintendent also authorized and directed the removal of the aqueduct carrying the canal over Beard’s creek, which was done, and by these changes the waters of Samp’s creek thereafter flowed northerly along the canal prism and into Beard’s creek, and the low lands to the east of the canal were thus relieved from the overflow of the waters from Samp’s creek, except so far as they may have reached such lands by the overflow of Beard’s creek. This condition of things continued until the construction of the spillway complained of in this case and hereinafter referred to. In 1880 the Legislature passed an act (Chap. 326 of the laws of that year) providing specifically for the sale of the canal, and in November, 1881, under said act, the canal was sold and conveyed to the Genesee Yalley Canal Railroad Company, and in December of the same year the same was conveyed by said railroad company to the Western New York and Pennsylvania Railroad Company. The latter company at once went into possession of the same and constructed its railroad upon and along the easterly bank of the abandoned canal, and operated the same until, in 1895, the defendant, by the foreclosure of a series of mortgages, acquired title to the property. After the construction of the railroad, for several years, when the waters in the creek became high, the waters of Samp’s creek, flowing northerly along the canal prism, would meet the waters óf Beard’s creek, which backed up into the canal prism, and the adjacent lands east and west of the canal would be overflowed, and the easterly canal bank would be so affected by the water as to render the tracks of the railroad lying along the same unsafe for the operation of trains thereon. From 1880 down the State ditch had been substantially filled up with brush and sediment, and there was no way to carry off the waters of Sain p’s creek, except through the canal prism, without flooding the lands on the east side of the canal. In 1887 or 1888 the railroad company then owning and operating the railroad, in order to relieve the condition of things existing, and which rendered the operation of the railroad dangerous in seasons of high water and flood, cut out the easterly bank of the canal along which the tracks were laid at the place where White’s creek passed under the canal and into the State ditch, and constructed the spillway in question thirty-six feet wide, the top thereof being two and sixty-six one-hundredths feet above the bottom of the canal prism. Over this the railroad tracks were carried along the canal bank. This spillway has existed in substantially the same shape since it was so constructed, and this action was not brought to get rid of the same until in November, 1895. When the waters of Beard’s creek were not high enough to set back, into .the canal prism, all .the waters from Samp’s, creek .ran along the canal - prism- and • directly- into Beard’s creek and not over the spillway. Before the commencement of this action, however, Beard’s creek, at a point twenty to thirty feet east of the canal, had become filled up with brush, sediment and trees growing in the channel, the channel not having been cleaned out since 1868, and in times of flood and high water these obstructions set the water back into the canal and they flowed southerly, meeting and setting back the waters from Samp’s creek and both went over the spillway upon the lands to the east of the canal. The evidence given leaves it very doubtful if the plaintiff’s lands were overflowed to any greater extent in times of high water, with the spillway in the canal bank, than they would have been if if the spillway had not been constructed. The water from Samp’s creek had to go easterly from the canal into Beard’s creek and thence into the Genesee river. It would go directly from the-canal prism into Beard’s creek, except in times of high water and floods. When floods came, Beard’s creek could not carry its own water alone without overflowing, by reason of the obstructions therein. Whether, then, the water from Samp’s creek was attempted to be thrown into Beard’s creek directly from the canal prism, or was allowed to go through the canal bank at White’s creek, by means of the spillway, and thus find its way to Beard's creek along the line of the old State ditch and White’s creek, could, it seems to us, make little difference to the plaintiff or her lands. In either case the same quantity of water would be thrown upon the plaintiff’s lands, especially in view of the obstructions in Beard’s creek east of the canal, and the damage to the plaintiff would be no greater in the one case than in the other so far as we can see from the evidence given on the trial. The trial court, in the 14th finding of fact, stated that the railroad company which built the railroad and constructed the spillway, by means of ditches had collected large quantities of water from a large territory west of the canal, which formerly flowed under the canal (Samp’s creek), and caused them to flow through said canal and through said spillway upon the plaintiff’s ’and, and had, by means of said ditches, gathered a portion of the water of Beard’s creek and caused it to flow through the prism of said canal and through the spillway upon the plaintiff’s lands.

This is very general language, and is a statement of conclusion rather than of facts.

The railroad coinpany did construct the spillway, but it was not responsible for any ditches to the west of the canal that collected any of the waters of Samp’s creek or Beard’s creek and threw those waters into the canal prism. The landowners and officials claiming to represent the State turned the waters of Samp’s creek into the prism of the canal in 1880, while the State still owned the canal and before any of the railroad companies acquired title to the canal banks or prism. The railroad companies were none of them responsible for the obstruction of the culvert which took the waters of Samp’s creek under the canal, nor for the filling up of the old State ditch, or the obstructions in or filling up of the channel of Beard’s creek just east of the canal, nor for the destruction of the culvert at. Samp’,) creek and the aqueduct at Beard’s creek, nor for the cutting of the ditch through the west bank of the canal at Samp’s creek, letting the waters of that creek into the canal prism and allowing them to flow northerly along the canal to and into Beard’s creek at the aqueduct.

When the railroad company took title to the canal property and built its railroad thereon, it found all the ditches and channels constructed, which conducted the waters in question into the canal and Beard’s creek. It found a condition of things at times of high water, in which the lands of the plaintiff were flooded with the-waters in question, to fully as great an extent as they have been flooded since the construption of the spillway, and this finding can only be supported upon the one theory that the railroad company,, by the simple act of constructing the spillway, accomplished the results stated in the finding of fact in question. It may well be doubted whether under the acts of the Legislature providing for the sale of the canal property, and in view of the provisions thereof, the-property owners and the State officials had any authority to turn the waters of these two creeks into the prism of the canal; whether the railroad company might not regard their acts as unauthorized, or at least as a mere license by the State to so dispose of the waters of the0e creeks. If the-turning of the waters of Samp’s creek into the-canal was by a mere license, then the railroad company might revoke-the license and turn the waters from the canal into the old State-ditch again In that event how could the plaintiff complain that such waters were turned from the canal into the State ditch at White’s creek rather than at Samp’s creek or that, instead' of turning the whole waters of Samp’s creek back into the State ditch, the-railroad company only turned such waters as in times of flood and high water would run over the spillway, leaving all other waters to flow directly into Beard’s creek, thus relieving the plaintiff’s lands from the same ? The plaintiff seems to proceed upon the theory, and the decision is based upon the same proposition, that the plaintiff had the legal right to have the water run as it did after it was turned into the canal prism, under the direction of the State officials in 1880, and that any interference with such right by the railroad company was unlawful. We are unable to see how any such. rights existed in view of the provisions of the legislative acts hereinbefore referred to. No such right was ever acquired by the plaintiff by grant or prescription, and the railroad company took title to the property under the acts of the Legislature subject to no such right, and was not bound to submit to the burden thus sought to be imposed upon it. (White v. Sheldon, 35 Hun, 193; Wiseman v. Lucksinger. 84 N. Y. 31.)

It seems to us upon a full examination of the record that the decision of the trial court was erroneous, and that the judgment appealed from should be reverséd and a new trial granted, with costs to abide event.

All concurred, except Laughlin, J., dissenting.

Judgment reversed and new trial ordered, with costs to the appellant to abide event.  