
    Jonas S. Van Duzer et al., Resp’ts, v. The Elmira, Cortland and Northern Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1894.)
    
    1. Nuisance—Notice.
    In an action for damages arising from overflowing land by reason of the
    " defective character of a bridge, what constitutes a reasonable time, which must elapse before a corporation transferee is chargeable with notice, is a question for the jury.
    3. Same.
    Such notice may be inferred from the situation and the method of construction.
    3. Same—Extraordinary Flood.
    Whether a flood of an extraordinary character was such that it should have been anticipated and provided against, is a question for the jury.
    Appeal from a judgment entered in Chemung County on the eighteenth May, 1892, upon a verdict for fifteen hundred dollars, in favor of the plaintiffs, rendered at the Chemung circuit; also appeal from an order at special term, denying a motion for a new trial, made on a case and exceptions.
    
      Frederick Collin, for app’lt; Gabriel L. Smith, for resp’ts.
   Merwin, J.

This action is brought to recover damages for injuries to plaintiffs’ farm and property thereon, by reason of floods, occurring in October, 1885, and June 1 and 15,1889. It is alleged that the defendant constructed or maintained a bridge across Rewtown creek, and an embankment across plaintiffs’ farm in so negligent and unskillful a manner that the waters were turned from their natural course and thrown upon plaintiffs’ property, causing the injuries complained of.

The plaintiffs, at the dates referred to, were the owners of a farm situated a short distance northeasterly from the village of Horse-heads. Through the central portion of the farm the Rewtown creek passed, in a southerly direction. The railroad of the defendant, as it came from the village of Horseheads, crossed the farm in a northeasterly direction, upon an embankment about seven feet above the natural surface of the ground.- A portion of the road bed was a bridge over Rewtown creek, and this was a short distance northerly from the south line of the farm. The eastern portion of the farm, over a part of which the railroad passed, was low ground. In the embankment beyond the creek there was no passage-way for water, except a cattle pass. The plaintiffs claimed that before the road was built the overflow from the creek, in times of high water, was accustomed to pass easterly across and beyond the farm, doing them no injury, but that since the building of the road the embankment operated to obstruct and gather the water, force it down to the bridge, and that thereupon the occasion complained of, by reason of the insufficiency of the passageway at the bridge, the water was dammed up and forced over the western bank of the creek and onto plaintiffs’ property, to their injury. _ _ .

_ _ . The railroad was originally constructed in 1872, by the Utica, Ithaca and Elmira Railroad Company. The defendant became the owner on tenth March, 1884, and has since then operated the road. Ho question is made here as to the manner or extent of the injuries, but it is claimed (1) that the court erred in submitting to the jury the question whether the defendant had notice or was chargeable with notice or knowledge of the defective character of the bridge at the time of the flood in October, 1885; and (2) that the court, on the motion for a non-suit, should have held as matter of law, that the floods of June, 1889, were of such an extraordinary character that the defendant was not liable.

1. After the time the defendant became the owner of the property, and before October, 1885, there had been no flood that demonstrated the defective character of the bridge. Hor was there at the trial, any proof of express notice to the defendant. It was, therefore, claimed by the defendant, that there was'no liability on it for the damages of 1885. The court charged that the defendant was not liable, unless from the situation itself it was bound to take notice that the bridge was defective. Whether the defendant was so bound was left to the jury to determine, as a question of fact.

In Conhocton Stone Road Co. v. B., N. Y. & E. R. R. Co., 51 N. Y., 573, it was held that a grantee of premises upon which there is a nuisance at the time the title passes, is not responsible therefor, until he has had notice or knowledge of the existence thereof, but that it is not necessary to prove a request to abate. In Ahern v. Steele, 115 N. Y., 203 ; 26 St. Rep., 295, a like principle is stated, and it is there in substance said (p. 213 and seq.) that the notice required to put the party in fault, may be proved like any other fact; that it may sometimes be inferred from mere occupancy, depending upon the circumstances of the case. An obstruction may be such that anyone, whether professional or not, would see at once that it was 'improper and lacked safeguards, necessary to be made, and which might effectually prevent injury. Bellinger v. N. Y. Cent. R. R. Co., 23 N. Y., 51.

In Timlin v. Standard Oil Co., 126 N. Y., 514; 37 St. Rep., 906, it appeared that the Standard Oil Company, on May 1,1885, leased to certain parties, premises upon which was a nuisance not created by the company. The action was against the company, its tenants and others, for damages occurring in September, 1885, in consequence of the nuisance. The court, at the trial, charged that as to the company the plaintiff could not recover, unless the jury were satisfied from the evidence that the company knew, or ought to have known or had notice, that the wall in question was in a dangerous condition before May 1, 1885. On the appeal, this was said to be a correct statement of the law, and the doctrine was laid down that when the owner of premises knows, or, by the exercise of reasonable care, can ascertain that they have upon them a nuisance dangerous to the public or an adjoining owner, it is his duty to abate it before leasing the property, and if he does not, he is liable to respond in damages to anyone subsequently injured. As to the tenants, it was held that they were not liable, unless they had notice of the existence of the nuisance, or time enough had elapsed in which knowledge of its existence would be obtained by the exercise "of reasonable diligence.

In the present case, the defendant became owner and went into possession in March, 1884, and the flood occurred in October, 1885. The bridge crossed the street diagonally, at an angle of about forty-five degrees, and the embankment extended across the flats in a straight line about fifteen hundred feet. The angle of the bridge, with the current of the creek, was such, that any water coming down along the embankment would naturally be thrown across the stream and strike upon the western bank, which in fact gave way in 1885. The bridge was about fifty-nine feet long and rested at each end upon an abutment and in the centre there was a pier.

Between the pier and each abutment was a bent placed there by the defendant, as the evidence tends to show. The capacity of the water way at the bridge without the obstruction of the centre pier and bents, was, as the evidence tends to show, about equal to that between the banks of the creek. The creek was liable to overflow every year from ordinary freshets and it was subject to sudden rise and fall. Upon any overflow the embankment would be likely to gather the water and send it down with considerable force to the bridge. The effect there of the angle could readily be inferred. The western bank of the stream at that point had been partially torn away by a previous flood.

Within the ruling in the Timlin case, the question of notice was properly given to the jury. The test is quite similar to the rule in actions against municipal corporations for injuries from obstructions in streets not placed there by themselves. Pettengill v. City of Yonkers, 116 N. Y., 558; 27 St. Rep., 531. In such cases, what constitutes a reasonable time which must elapse before the corporation is chargeable with notice is a question for the jury-

1. Notice may be inferred from the situation and the method of construction. Sawyer v. Newburg R. R. Co., 157 Mass., 430.

2. There is evidence, that the flood of June 1, 1889, was unusual and extraordinary. And still there is also evidence that there were floods in 1865, 1878, and in 1885 that in that "locality were equal to it or nearly so. A similar question is considered in the case of Mundy v. N. Y., L. E. & W. R. R. Co., decided by this court at this term, in regard to a flood, at the same date, in a neighboring locality. The conclusion is there reached, that it should not be held as a matter of law, that the flood was so extraordinary that the defendant was relieved from all liability. The cases there cited fully sustain the proposition, that, as a general rule it is a question for the jury whether a flood of an extraordinary character was such, that it should have been anticipated and provided against. That rule is applicable to this case.

It follows, that the motion for a nonsuit as to the flood of June 1, 1889, upon the ground that the flood was extraordinary, was properly denied. The facts as to the flood of June 15,1889, do not call for any different ruling.

Ho other question is raised. It follows, that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concur.

Judgment and order affirmed with costs.  