
    Daniel D. Dennison, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence — diversion of water caused by a railroad embankment, which creates a right of action in favor of an abutting owner of lands injured thereby.
    
    In an action brought to recover damages resulting from the alleged act of the defendant railroad company in changing a watercourse so that the water, in times of freshets, overflowed the plaintiff’s land, it appeared that the defendant’s roadbed ran practically east and west on the north line of the plaintiff’s land; that there was a spring just northeast of the plaintiff's land from which a stream of water originally flowed across the land of one Hale without touching the plaintiff’s land; that when the railroad was constructed an embankment thirty feet high was built j ust south of the spring and that the defendant constructed a ditch along the north side of the embankment which took care of the water carrying it through a stone culvert underneath the embankment and entirely across the plaintiff’s land; that in 1890 the defendant built a small box culvert through the railroad embankment about four hundred feet to the east of the stone culvert and toward the spring; that it then dammed up the former ditch just west of the box culvert so that the surface water and the main stream passed through the box culvert; that after the water passed through the box culvert it was turned at right angles into a ditch dug by the defendant which ran westerly on the southerly side of the embankment until it came to the southerly mouth of the stone culvert, where the water was again turned at right angles to the south and carried ¡along the channel in which it had formerly flowed when it passed through the stone culvert; that prior to 1897 this southerly artificial ditch became filled up because of slides from the railroad embankment; that in July, 1897, there was a freshet, and that the extra flow of water and the natural stream were precipitated through the box culvert; that by reason of the sharp turn of the artificial ditch to the west, and also because it was filled up, the water broke through and flowed in a southwesterly direction through the plaintiff’s land, damaging it.
    It further appeared that immediately north of the railroad embankment there was an extensive watershed, and that this box culvert was the only outlet for it since the damming up of the former channel.
    
      
      Held, that the evidence tended to establish a substantial diversion by the defendant of the course of the stream and the filling up of the new channel, and that the overflow was the result thereof;
    That it was, therefore, improper for the court • to dismiss the plaintiff’s complaint.
    McLennan, P. J., dissented.
    Appeal by the plaintiff, Daniel D. Dennison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 29th day of January, 1904, upon a nonsuit granted by the court at the close of the plaintiff’s case after a trial at the Onondaga Trial Term, and also (as stated in the notice of appeal) from an order made on the trial of the action directing the dismissal of the complaint.
    
      Oliver D. Burden, for the appellant.
    
      Frank IIscock and A. H. Cowie, for the respondent.
    
      
      The record contains no order.— [Rep,
    
   Spring, J.:

This action was brought to recover damages by reason of the changing of a watercourse causing the water in time of a freshet to overflow the plaintiff’s land and carry off the soil. The defendant’s roadbed runs practically east and west on the north line of plaintiff’s land. There is a spring just northeast of the land of plaintiff from which a natural stream of water originally flowed down across the land of one Hale, not touching the land of the plaintiff. When the railroad was constructed an embankment about thirty feet in height was built just south of this spring. The defendant constructed a ditch along the north side of the embankment which took care of the water, carrying it through a stone culvert underneath the embankment and entirely across the plaintiff’s land. In 1890 the defendant built a small box culvert through its railroad embankment about four hundred feet to the east of the stone culvert and toward the spring. It then dammed up the former ditch just west of the box culvert so that the surface water and the main stream passed through the box culvert. This culvert was on the northeast corner of plaintiff’s premises, while the stone culvert was on the northwest corner and the land descended from the box culvert westerly to the stone culvert, the fall being about thirty-five feet. After the water passed through this box culvert it was turned at right angles into a ditch dug by the defendant which ran westerly on the defendant’s right of way and on the southerly side of the embankment until it came to the southerly mouth of the stone culvert, where the water was again turned at right angles toward the south and carried along in the channel in which it formerly flowed when the water passed through the stone culvert.

Prior to 1891 this southerly artificial ditch became filled up because of slides from the railroad embankment. In July of that year there was a freshet and the extra flow of the water and the natural stream were precipitated through the box culvert. By reason of the sharp turn of the artificial ditch to the west and also because it was filled up the water broke through and flowed in a southwesterly direction through the plaintiff’s land until it joined the former channel near the. southerly end of plaintiff’s premises, excavating the soil, tearing up rocks and stones and finally washing out a part of a stone wall which was the south boundary of plaintiff’s farm. Afterward that portion of the new channel caused by the rapid flow of the water across this lot was filled in by the defendant with hardpan and since that time has not been tillable soil.

It appears that immediately north of the railroad embankment there is an extensive watershed and this box culvert is the only outlet for it since the damming up of the former channel.

The jury might have found from the evidence as it stood at the time of the nonsuit that if the channel north of the embankment had remained in the condition it was before the box culvert was constructed, all the water would have flowed along through this channel and the stone culvert, which was much larger than the box culvert. The sliding of the dirt from the embankment filling up the southerly artificial ditch on the defendant’s right of way, and which was a substitute for the channel dammed up, tended to divert the water, turning it southerly upon the plaintiff’s premises.

While the description of the different channels is somewhat involved, we think there was evidence of a substantial diversion by the defendant of the course of the stream and of the filling up of the new channel, and the overflow on plaintiff’s premises may have been found to result therefrom.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except McLennan, P. J., who dissented, and Hisoook, J., not voting.

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