
    William H. Ordway, Resp’t, v. The Village of Canisteo, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Municipal corporations—Diversion op water-course.
    A municipal corporation which, as a riparian owner, by its wilful act, diverts the waters of a natural stream from its accustomed channel and causes them to flow upon the lands of an individual, is liable for the resulting damage.
    2. Same—Damages.
    In such a case, some acres of the lands of the individual being washed away, the measure of his damage is the previous value of such land.
    Appeal by the defendant from a judgment entered in Steuben county, December 2, 1892, on the report of a referee.
    
      Eli Soule, for app’lt;
    
      F. II. Robinson, for resp’t.
   Dwight, P. J.

The farm of the plaintiff adjoined the territory of the defendant on the east, and Bennett’s Creek formed the boundary of the latter on the south-east and south, and then flowed easterly through the former. It was a non-navigable stream, subject to high and sudden freshets in times of heavy" rains or melting snows, and at such times overflowed its banks at the points where they were lowest. In its normal state it flowed in a natural channel and between fairly well defined banks. In its flow past the village it made a bend nearly at a right angle around the point of a hill on the opposite side, and, as was natural, its waters, in the coarse of years, impinging upon the left bank at the apex of the bend, had caused the bank at that point to recede and widened the bend of the creek to nearly twice its width a short distance above. At this point, also, which was about eighty-five rods above the west line of the plaintiff’s farm, there had been, as the referee finds, for more than thirty years a natural depression in said left bank, extending down the creek from a distance of from twenty to twenty-five rods, over and through which depression the waters of the creek had, for all that time, been accustomed to flow in times of freshets, in no particular course or defined channel, but northerly, to the village and through its streets, doing more or less injury to the walks, streets and property of the village.

About the 1st of June, 1889, there was an extraordinary rise in the waters of the creek, from heavy and protracted rains, causing a general overflow of its banks, particularly at the line of depression above mentioned, so that the waters flowed through the streets of the village and did much damage therein. At that time the water also overflowed portions of the plaintiff’s farm, lying north of, and next to the creek, but, as the referee finds, did not cut or wash those lands and did little or no damage thereto, but rather, apparently, improved and enriched them by the deposit of soil and sediment from the water coming thereon.

In the fall, and previous to November 1 of the same year, 1889, the defendant constructed a line of piling, planked on the side toward the stream, conforming, generally, to the course of the left, or northerly bank, of the creek, but at such distance therefrom, toward the center of the channel, as to narrow the stream by about one-third of its width, for a distance of about forty-five rods, including its widest part, in.the bend of the stream and opposite the depression in its north bank above mentioned. At the widest point in the bend the structure of piling and planking was placed in the stream at a distance of more than one hundred feet from the north bank. This distance was gradually diminished as the stream grew narrower, until the structure was abruptly terminated, at a distance of about one hundred and fifty feet west from the plaintiff’s west line.

At about the same time, and previous to November, 1889, the defendant plowed up and loosened large bars of gravel which had formed years before in the bed of the stream, south of where the planking was placed, and left the gravel loose to be washed out and carried down the stream by subsequent floods, with the purpose of forming a new channel for the stream.

Throughout some portion of the structure thus erected in the bed of the stream, especially in the bend and in front of the depression in the bank above described, the piling and planking was made considerably higher than the natural banks, while as the structure approached the line of the plaintiff’s land it was cut down to or lower than the height of the natural bank.

In the month of November, 1889, and again in May, 1890, freshets occurred in Bennett’s creek, during which, as the referee finds, in substance, the waters were turned from their natural currents, piled up and confined by the structure above described, prevented from escaping at the points above the plaintiff’s land where they had been accustomed to overflow, accelerated in their current by the smooth surface of the planking, and, so changed in direction and increased in volume and velocity, were cast upon. the plaintiff’s farm, cutting away his banks, flowing with a swift current over his land, cutting holes and channels therein, carrying away the soil and depositing banks of gravel thereon. The referee finds that three acres of the plaintiff’s land was thus rendered practically worthless; estimates the previous value of the land at $150 an acre, and makes that estimate the measure of the damages to be awarded to the plaintiff.

There can be no question but that if the defendant had been a private person who had sought thus to protect his own laud at the expense of his adjoining riparian proprietor, he would have been liable for all the injury caused to the latter by reason of such acts on his part. The case would have been directly amenable to the maxim sic utere tua ut non, etc. It would have been in its essential features identical with the case of Hartshorn v. Chaddock, lately considered in this court and in the court of appeals, 40 St. Rep., 953; 47 id., 838. It is unnecessary to do more than refer to the opinions in the two courts in that case, and to the authorities cited therein, to sustain the general proposition stated by Judge O'Brien in the latter opinion, that “ irrespective of any question of negligence or malice a riparian owner who, by his wilful acts, diverts the waters of a natural stream from its accustomed channel and causes them to flow upon the lands of his neighbor, is liable for the resulting damage.” Citing McKee v. D. & H. C. Co., 125 N. Y., 353; 35 St. Rep., 12.

The same decision in both courts is also authority in favor of the rule of the measure of damages adopted by the referee in this case.

The only question remaining seems, therefore, to be whether the municipal character of the defendant, and the fact that the acts on its part complained of were done in the supposed exercise of its authority, conferred by law, to protect the public and private property within its corporate limits from damage by floods, takes the case out of the rule above stated.

It seems to us very clear that this case upon its facts is no exception to the general rule. It is clearly not within the principle of the cases of Radcliff v. The Mayor, 4 N. Y., 200; Ely v. Rochester, 26 Barb., 133, and Atwater v. Canandaigua, 56 Hun, 293; 30 St. Rep., 587; S. C. on appeal, 124 N. Y., 608; 37 St. Rep., 234. In these cases the work authorized or directed by law was special in its character and required to be done in a particular place and, within very narrow limits of discretion, in a particular manner, and the resulting damage was temporary and purely consequential. In this case the infringment of the plaintiff’s right, viz : to have the stream which flowed through his land continue to flow in its natural channel, direction and volume as it had been accustomed to flow, was direct and immediate, and the damage complained of was certain to result therefrom in a time of flood, and was permanent in its character. The case is, clearly, rather within the principles recognized in Noonan v. City of Albany, 79 N. Y., 470; Seifert v. City of Brooklyn, 101 id., 136; Byrnes v. City of Cohoes, 67 id., 204; N. Y. C. & H. R. R. R. Co., v. City of Rochester, 127 id., 591; 40 St. Rep., 193; Gould v. Same, 105 N. Y., 46; 6 St. Rep., 503.

Granting to the defendant full authority to take such action as might be necessary and proper to protect its property and that of its inhabitants from the floods, yet even here the principle applies that it is bound so to use its own as not to injure another’s, so to protect its own that the loss and damage which it averts from itself is not cast upon another.

There is, in truth, no principle upon which a municipal corporation can claim immunity from such liability as would attach to an individual for acts in disregard of the rights of others such as are portrayed in this case.

We find no error in the trial of the action or in its determination which should vitiate the judgment.

The judgment should be affirmed.

Judgment appealed from affirmed.

Macombeb and Lewis, JJ., concur.  