
    Rosa Deigleman, Pl'ff, v. The New York, Lackawanna & Western Railway Co., Def't.
    
      (Superior Court of Buffalo,
    
    
      Equity Term,
    
    
      Filed November 8, 1890.)
    
    Nuisance—Causing overflow of neighboring lands.
    Defendant in constructing its road erected an embankment composed of dirt taken from its lands immediately adjoining, by which a large excavation was made, in which the surface water of the surrounding neighborhood was collected and remained. Slight attempts at drainage were made, but not sufficient to carry oil all the water, and at times of ice and snow the pits overflow into the adjoining street, where, by action of the elements, it is obstructed and sets back on plaintiff’s land to her injury. It appeared that prior to the construction of the pits the surface water passed off at different points without injurious effects. Held, that the primary cause of the damage was the collection of the surface water and its discharge at a different place iij increased volume, and that plaintiff was entitled to judgment commanding defendant to fill up the pits or construct suitable drains to carry off the water without damage.
    Action brought to restrain defendant from keeping and maintaining an open ditch or excavation upon its premises and to recover damages for overflowing plaintiff’s land, with water. In 1881 defendant constructed its railroad upon a raised embankment fifteen feet high at the crossing of Military road, a highway over which said railroad runs, and continuing thence easterly by graded descent to about three feet at Delaware avenue, which it crosses. The embankment was in part constructed from dirt excavated from lands of defendant immediately adjoining said embankment on either side, and when completed left a ditch, or, as called, a borrow pit, on each side about fifteen feet deep, fifty feet wide, extending easterly 650 feet; east of this point the excavation is narrower and shallower, and for most of the distance to Delaware avenue the surface of the ground adjoining defendant’s embankment has not been changed. At the easterly end of the main excavation there is a farm crossing over the tracks with a sloping approach, underneath which defendant has constructed a box drain about sixteen inches wide by two feet high, through which the water runs to the borrow pit west; the land lying upon either side of defendant’s road is practically level, sloping generally and slightly to the south and west. The depression at Military road being 8.62 feet greater than at Delaware avenue, a distance of 5,400 feet west. At the time the embankment was constructed no drain was made to carry the water from the borrow pit or care for it in any manner beyond the capacity of the pit to hold it. Prior to the excavation being made, the surface water either remained upon the ground and evaporated or was absorbed in the soil, or ran off to the south and west into the Military road; it had no defined channel, but passed off in the various ways gradually without damage or discomfort to surrounding owners. The effect of the construction of the borrow pits has been to collect the surface water therein from a considerable extent of territory on both sides of the track. Upon complaint being made defendant excavated a ditch at the westerly end of the pits on each side of the embankment leading into Military road, about four feet wide and one foot deep. Military road is about two feet lower than the surrounding land, is curbed and paved, but is without a sewer; the curb of the street rises about a foot above the pavement, and the ditch leading from the borrow pit is only excavated to the top of the curb; when the water runs freely from the pits its level is from fifteen to eighteen inches below the edge; when the water in the pits gets below the curb there is no flow therefrom; the soil is clay, and retains the water which continuously remains therein at a depth of from ten to thirteen feet, becomes stagnant, and in hot weather emits an offensive odor. Plaintiff’s premises are situate upon the corner of Busch and Layer avenues, so called, at a distance of 566 feet south of defendant’s lands and about 300 feet easterly from the Military road. At times there is an accumulation of ice and snow which obstructs the flow of water from the pits, and which also accumulates from the water flowing from the pits in the Military road, obstructs the street and sets the water back upon the surrounding land and upon the plaintiff’s premises to a depth of three or four inches, filling the cellar and inflicting the damage complained of.
    
      Frank P. Perkins, for pl’ff; F. D. Locke, for deft.
   Hatch, J.

It is conceded by defendant that it possesses no right to collect the surface water to an extent beyond the capacity of the pits and discharge the overflow upon plaintiff’s premises ; and its claim is that it has not done such act, but that the water collected in the borrow pits is due to the fact of the construction of the embankment by which the water is turned back into the pit and from thence it is conveyed in the Military road, its natural channel, and being discharged therein. Defendant has performed all the duties resting upon it, and if the overflow upon plaintiff’s premises is due to the freezing and obstructing of Military road, even though by the water it turns therein, no liability attaches on account thereof.

It is undisputed that prior to the construction of the pits the water passed away without inflicting damage or producing discomfort to plaintiff; that there was no point at which it collected in any considerable amount, and such portions as passed into Military road was not discharged at any one point, but was from all points along the frontage of the land adjoining thereon. It is also undisputed fhat'since the construction of the pits the surface water has been drawn thereto, where it is discharged at one point and in increased volume. The oral testimony is undisputed that at times of heavy falls of rain, with melting sno-w and ice, the pits overflow and flood plaintiff’s premises. Defendant claims that the character of the pits, the opening of the ditch into Military road by which the water is lowered in the pits from fifteen to eighteen inches, show that such testimony is not reliable, as such overflow is physically impossible. This is doubtless true when the water runs freely from the pit to Military road, and also when it passes freely through the box drain at the farm crossing, but with either of these closed or stopped up, the accumulation of water would quite readily overflow the bank and flood the land. The court cannot say from an observation made at a time when both ditches were open that a condition of affairs did not exist as described at the time described by the witnesses, for with the drains stopped it is by no means' a physical impossibility. That there was an overflow the evidence satisfactorily establishes; indeed, it is not disputed. Defendant insists that if there was an overflow it was not from the pit but from Military road, due to the obstruction therein; that for this they are not liable for two reasons: First This is the natural channel for the water and has always been so. Second. Adjoining owners on either side have opened dead furrows therein which has increased the body of water flowing therein, and that the water discharged from the pits has only in part produced the condition. As to the latter ground, if turn- • ing the water into the street in the manner adopted and in the quantity discharged was wrongful, then defendant is not relieved from liability because other wrongdoers have also contributed to the injury. As to the first ground it is to be observed that there has been a radical change made in the flow of the surface water by the construction of the pits; instead of its running off through the imperceptible channels or being- otherwise disposed of it is now? collected into comparatively large bodies of water and from a large extent of territory, instead of being discharged from the land at numerous places it is reduced to two, and flaw's therefrom at times in a greatly increased volume; such condition has produced the injury complained of, and I think it can make no difference whether such overflow upon plaintiff’s premises comes by reason of the stoppage of the drain connecting the pits, or the one leading into Military road, or by reason of the increased quantity of water turned into Military road where by action of the elements it is obstructed and sets back upon plaintiff, for the primary cause is found in the collection of the surface water, which is of necessity discharged at a different place in increased volume, and by reason thereof it is precipitated in considerable quantities upon the land of plaintiff, and inflicts damage. The authorities in this state have uniformly held that a person producing such result is liable for the damages occasioned thereby. Bastable v. City of Syracuse, 8 Hun, 587; Noonan v. City of Albany, 79 N. Y., 470 ; Clark v. City of Rochester, 43 Hun, 271; 5 N. Y. State Rep., 456.

These views and authorities in no wise1 conflict with the cases relied upon by defendant. Goodale v. Tuttle, 29 N. Y., 459, first announced the now conceded doctrine in this state, that an owner for the amelioration of his own soil may fill up and reclaim wet, marshy land, even though the effect is to prevent the flow of surface water thereon, and cause it to accumulate upon the land of an adjoining owner to his disadvantage.

In Vanderwiele v. Taylor, 65 N. Y., 346, the surface of defendant’s lots descended towards plaintiff’s lots, and the surface water ran thereon ; plaintiff constructed on his lots buildings, defendant’s remained vacant, and the surface water ran down, settling against the wall of plaintiff’s building, soaked into his cellar, causing the wall to settle. It was held that defendant owed plaintiff no duty to drain his lot of surface water, or prevent its flow to the lower lot. But Judge Earl observes, in disposing of the question: “It must constantly be borne in mind that defendant had done nothing to increase or interfere with the flow of water from his land, and lienee this case is entirely unlike Rylands v. Fletcher * * * and like cases, where the owners of lands brought or gathered upon their land unusual quantities of water, which escaped and caused injury.” Id., 347.

In Barkley v. Wilcox, 86 N. Y., 140, the doctrine of the civil law, which holds that the rights of parties with respect to the flow of surface waters is to be governed by the law of nature, and that the lower proprietor may not fill up his land so as to prevent its flow from his more fortunately situated neighbor, does not, in all cases, find application in this state. The precise distinction, however, already adverted to, is recognized and stated. Id., 146, 147, 148. So in Peck v. Goodberlett, 109 N. Y., 180; 15 N. Y. State Rep., 182, which is the last statement of the court of appeals upon this subject that has fallen under my observation, the rule is again reiterated and applied. I find nothing in any of the cases cited by defendant, or in the numerous cases not cited which abound in the reports of this and other states, which modify or change the rule of the cases first cited as applied to the facts of this case. I am therefore constrained to hold that the plaintiff is entitled to judgment commanding and directing the defndant to fill up its said pits and prevent the accumulation of surface water therein or to construct suitable and proper drains from said pits so that the water collected therein may be carried off without detriment or damage to the lands of plaintiff.  