
    Annie M. Sadlier and Louise M. Cassidy, Respondents, v. The City of New York, Appellant.
    
      .Negligence —injury to property from, debris and water coming from a, bridge above it — where the plaintiffs a/re denied all equitable relief damages a/re not recoverable at the Special Term — effect -of the defendant’s having noticed the case for trial af the Special Term—legislative authority cannot authorize ¿uch a trespass — duty and liability of the city owning the bridge.
    
    The owners of a building located twenty feet south of the southerly side of the New York and Brooklyn bridge and eighty feet below the same, alleging that debris and water coming from the roadway of the bridge were deposited upon their premises and constituted á continuing trespass, brought an action against the city Of New York to procure an injunction restraining such,use and maintenance of the bridge as to cause the alleged; trespass, except upon condition that the defendant purchase or condemn the plaintiffs’ premises and pay a specified, sum as past damages. The defendant alleged that the plaintiffs-had a full and adequate remedy at law. The action was tried! at Special Term and the trial court adjudged that the plaintiffs were entitled to recover only money damages. . ' . : “
    Upon an appeal by the defendant from such judgment, it was
    
      jWeld, that the plaintiffs having been denied all equitable relief, the judgment for damages was unauthorized;
    
      That the fact that the defendant had noticed the case for trial at the Special Term under its stipulation to that effect did not affect its right to question the power of the Special Term to award, under the circumstances, a judgment for money damages;
    That the fact that the New York and Brooklyn bridge'was constructed pursuant to authority obtained from the Legislature did not relieve the city from liability for a continuing trespass upon private property committed in the administration of the bridge, as it will be assumed that the Legislature intended the administration of the bridge to be conducted without acts of trespass;
    That the bridge was not, per se, a nuisance, and that the obligation of the pity in respect to the maintenance of the bridge should be determined with regard to its duties in respect to the highways or streets of the city, modified by the consideration that the bridge was not built on the surface of the earth;
    That the city had no right to sweep debris off the surface of the bridge so that such debris, assisted by the currents of air, was carried upon the premises of the plaintiffs;
    That-the city was not, however, responsible for surface water which flowed or fell from the bridge upon the plaintiffs’ premises, in the absence of proof that \ ’"s —it.swept or cast such water upon the plaintiffs’ premises, or that it collected, or suffered to be collected, such surface water into an artificial channel, from which it fell or was discharged upon the plaintiffs’ premises, or that it was practicable to remedy the situation.
    Appeal by the defendant, The City of Few York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of April, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      James D. Bell [John J. Delany with him on the brief], for the appellant.
    
      Jesse W. Johnson [Albert K. Lamb with him on the brief], for the respondents.
   Jenks, J.;

The structure of the Few York and Brooklyn bridge passes at eighty feet above the building of the plaintiffs. A vertical line from the southerly side of the structure nearest the premises would fall twenty feet distant northerly therefrom. The plaintiffs allege that debris, and water from the roadway of the bridge come onto the premises. They complain of a continuous trespass, and sue for an injunction from such use and maintenance of the bridge as to cause it, except on the condition that the defendant purchase or condemn the plaintiffs’ premises, and that it pay $25,000 past damages. The Special Term adjudged Only that the plaintiffs recover a sum of money as damages. I think that we must reverse the judgment on the authority of Western Union Tel. Co. v. Syracuse El. L. & P. Co. (178 N. Y. 325, 329). The fact that the defendant noticed the case for trial at the Special Term under its stipulation to that .effect does not affect the rule. (Wheelock v. Lee, 74 N. Y. 495, 500. See, Davidsburgh v. Knickerbocker Life Ins. Co., 90 id. 526, 530.) As was said in. Wheelock v. Lee (supra): “ The case in one -of its aspects was triable at Special Term, and had the plaintiff elected to rely solely on his equitable cause of action he could have proceeded with the trial there.” The defendant answered that the plaintiffs had full and adequate remedy at law. Before the judgment it coiild not, of course, .raise the point now made that the court having refused all equitable relief this judgment could npi stand.' • C The learned and elaborate opinions at Special Term (40 Misc. Rep. 78) relieve me from discussion of many of the legal principles invoked or involved in this case. The authorities are clear that some of the acts complained of may constitute trespass which, if committed in the administration of . the bridge, cast liability upon the defendant, irrespective of any question of its negligence. (Lambert v. Besey, Sir T. Raym. 421; Hay v. Cohoes Co., 2 N. Y. 159; St. Peter v. Denison, 58 id. 416; Sullivan v. Dunham, 161 id. 290; Seifert v. City of Brooklyn, 101 id. 136; Huffmire v. City of Brooklyn, 162 id. 584.) The fact '(hat the1 Legislature authorized the bridge, and that it was constructed within such authority, does not shield the defendant from liability in such a case. (Bohan v. P. J. G. L. Co., 122 N. Y. 18; Hines v. City of Lockport, 50 id. 236; Seifert v. City of Brooklyn, supra ; Huffmire v. City of Brooklyn, supra.) Tire rule invoked by the defendant, as enunciated in cases like Uppington v. City of New York (165 N. Y 222), does not obtain, inasmuch as in this ease there is a direct invasion-a continuous -trespass upon private: property. ¡The limitation ds expressed in the various authorities which lay down the rule, and the discrimination- is made in such cases as St. Peter v. Denison (supra), Losee v. Buchanan (51 N. Y. 476). Acts akin to those complained of may constitute a taking of private property. (Cooley Const. Lim. 671; Pumpelly v. Green Bay Co., 80 U. S. [13 Wall.] 166 ; Garvey v. Long Island Railroad Co., 159 N. Y. 323 ; Eaton v. B C. & M. R. R., 51 N. H. 504.) The plea that the acts complained of are directly authorized by the Legislature, cannot, in any event, avail the defendant, inasmuch as there is no direct statutory expression to show that the Legislature “ intended and contemplated” the doing of the very act in question (Morton v. Mayor, etc., of New York, 140 N. Y. 207, 212); the assumption is that the Legislature intended that the work of clearing the roadway should he done without such acts of trespass (Rand. Em. Dom., § 140, cited by Vakn, J., in Garvey v. Long Island Railroad Co., supra), and the evidence is that this work is directed to be done in a manner that does not require any trespass, inasmuch as the debris is collected and carried away in carts every day. It, therefore, is unnecessary to discuss the question whether the Legislature, limited by the Constitution and not omnipotent, like Parliament, could authorize acts of direct trespass. As to this, however, see Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10); Eaton’s Case (supra); Garvey’s Case (supra); Dyett v. Hyman (129 N. Y.. 351); Levy v. Dunn (160 id. 504).

I do not believe that the defendant with immunity can sweep debris off the bridge so that when thus cast off into the currents of the air it falls upon the premises of the plaintiffs. One of the witnesses testifies that the debris drops upon the plaintiffs’ roof (< because the mail pushing a broom gives it a momentum and it naturally cants away the same direction, same as a bullet would, or anything.” There is other evidence to the same effect, and I cannot say that the finding of the Special Term that the acts are a direct trespass should be disturbed. (Lowery v. Erskine, 113 N.Y. 52.) It cannot be contended that, inasmuch as the premises are twenty feet distant from the land point of a vertical line dropped from the bridge, the currents of air which help to carry this debris onto plaintiffs’ premises are a superseding cause.' ( Webb v. R., W. & O R. R. Co., 49 N. Y. 420 ; Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S 469 ; Dunsbach v. Hollister, 49 Hun, 352, 355 ; affd., 132 N. Y. 602.)

The New York and Brooklyn bridge is a “ municipal work of the two cities prosecuted on their behalf by municipal officers.” (Cullen, J., in People ex rel. Baird v. Nixon, 32 App. Div. 513; affd., 158 N. Y. 221), and is “ a public highway ” for “ a city purpose.” (Bartlett, J., in said affirmance.) As the Legislature" authorized ' the structure for public purposes in the: exercise df its' governmental ■ powers, it is not per se a nuisance. (Sauer v. City of New York, 180 N. Y. 27, per Haight, J.). I think the obligation of the defendant must be determined with regard to its duties as to the' highways or streets of the city, modified by the consideration that this bridge ’ is hot on the surface of the earth but lawfully above if. The court finds'that “ water and snow accumulate! on the wagon road of said ' bridge) and on the southerly side thereof, and mingling with the said chips, shreds, splinters; and with filth, refuse and manure ■ thereon, form muck, slush and filth, which flows and falls on to the roof and against the sides and windows1 of said building, the side of the said bridge not being énclosed, guarded or provided with a gutter to prevent it.” But I do not find any evidence that the condition of the roadwayin respect to surface water (and this term includes melting snow ■—■ Crawford v. Rambo, 44 Ohio St. 282; Case v. Hoffman, 84 Wis. 444;, Gray v. McWilliams, 98 Cal. 163) is different from that of any other highway subject to similar meteorological conditions. There is no proof that the defendant swept off or cast off such water, or that it collected it or suffered it to be collected into-an artificial channel whence it fell or flowed or was discharged onto the premises.: Mr. Groodenoiigh, a leading witness for the plaintiffs, after describing the stuff in- the water, says that it was of all kinds, and nature that you would find in the streets • ” and again the effect on the! windows • from what blows and' comes off the bridge is,' when it rains heavily, simply sheets of water, containing all kinds of matter from the drive path.. * * * My principal objection is tins water' which, will blow there, when the wind is in the right direction.” I cannot find ithat .the testimony is beyond a showing that surface water flows or falls from the bridge, and is blown by the- wind upon these premises. There is no proof even that the flow thereon is. direct ás if the premises were directly ' beneath the edge of the roadway. Nor does it appear but that the same^ quantity of surface water, would:' exist if this highway were built on the surface of the earth. In Lynch v. Mayor (76 N. Y. 60, 63) the court say: “ The defendant had, at least, as much right to fill up and raise this avenue as a private owner of a city lot has to fill up and improve his lot; and there can be no question that such an owner may fill up his lot, and build upon it; and the surface water of adjoining lots may thus be prevented from flowing upon it, or the surface water may be thrown from it upon adjoining lots, and flow upon them in a different way and in larger quantities than before; and yet no liability would arise. If it were otherwise, it would be quite difficult to improve city lots, and build up a city. Each owner may improve' his lot, and protect it from surface water. He may not collect such water into a channel, and throw it upon his neighbor’s lot. But lie is .not bound, fbr his neighbor’s protection, to collect the surface water which falls upon his lot, and lead it into a sewer. ( Vanderwiele v. Taylor, 65 N. Y. 341; Gannon v. Hargadon, 10 Allen, 106.) ”

The doctrine of Lynch's case, so far as it is applicable to the facts in the case at bar, is approved in Seifert v. City of Brooklyn (101 N. Y. 136, 142). In Carll v. Tillage of Northport (11 App. Div. 120) the court said : “ It is not disputed by defendant but that there has been an increased flow of water upon plaintiff’s premises by reason of the improvement. But its position is that such increase is slight, that the work was authorized and properly performed, and that, in making the improvement, it exercised a legal right possessed by it to change the grade of'the street, and, as no negligence is alleged in the character of the construction or in,the performance of the work, no cause of action is made out. The cases upon this subject are numerous and the law is well settled. It is the undoubted right of a municipal corporation to grade its streets or change the grade when it deems it necessary so to do, and property owners have no ground of complaint even though the consequence be that surface water is thrown upon the land or caused to .flow thereon in larger quantity than formerly, or is prevented from flowing therefrom and is collected thereon. But no right exists to collect a material body of water by diverting it from its natural flow, or by other means to gather it together, and when thus collected to conduct it by any artificial channel and discharge it in a body upon private property. We so held and applied the rule in a recent case. (McCarthy v. Village of Far Rockaway, 3 App. Div. 381.) ” The rule is also laid down in Rutherford v. Village of Holley (105 N. Y. 632) where the court say : “ It is not improbable that the turnpiking of the street and the construction of the-gutters diminish to some extent the waste by soakage and evaporation, and thereby increase somewhat the quantity of water which collects at the sluice, and which is discharged onto the Cary lot and ultimately on the plaintiff’s lot. But it would be quite unreasonable to' hold that every change; in the natural surface or condition of-land, made in the improvement of a street or highway, which to any extent increases the flow of surface abater on adjacent premises,, constitutes án actionable in jury. The case of Noonan v. City of Albany (79 N. Y. 470, 476) and cases of kindred; character, establish no such unreasonable and inconvenient doctrine.. But it is said that the water, by the acts of the defendant, is thrown upon the plaintiff’s lot in a body,‘whereas before it was dispersed over the surface and was absorbed, doing comparatively little injury.”' (See,, too, S. & R. Reg. [5th ed.] § 274, note on p. 506, citing Watson v. City of Kingston, 114 N. Y. 88. See Anchor Brewing Co. v. Dobbs Ferry, 84 Hun, 274 ; affd., 156 N. Y. 695 ; Farnh. Waters & Water Rights, 975.) The Special Term, it is true, fihdsi that the side of the bridge is not “ enclosed, guarded or provided with á gutter to-prevent it.” But in the.first place there is no suggestion -whatever that, any such construction is possible. To the lay mind the problem seems difficult. There is a manifest difference between the construction of a gutter drain or curb ini a surface highway and in a highway suspended high in air. For there must be an outlet for the gutter-drain or curb. Mr. Martin, the consulting engineer of the department of bridges, who has been continuously identified with the- bridge-almost since its inception and Who assisted! in making the plans, testified : There is a fender along the side of the bridge ; . that is three inches above the platform ; so that all along there, three inches above-the roadway, is‘an open space ; that fender is high • that fender, is. twelve inches wide and is three inches above the planking, of- the roadway ; the rest is open space, next thing to an impossibility ; there is. no iron screen there of any kind ; the weight of the bridge was kept. down by constructing it in that way.” The reduction of the testimony to narrative form renders the meaning of the phrase next-thing to an impossibility ” obscure, but. I may infer that the engineer states that any further or additional construction at that place was almost impossible or impracticable. Even where the water was diverted from its natural course and thrown upon the plaintiffs’ premises without providing any outlet, the court was. careful to state that it appeared that a drain could have been built so as to carry off the water (Byrnes v. City of Cohoes, 67 N. Y. 204), and Shear-man and Redfield on Negligence (oth ed. § 275) say it is well settled that “ when a public work as planned is found to result in direct and physical injury to the property of another, which from its nature is liable to be repeated and continuous, but is remediable by the adoption of prudential measures, the corporation is liable,” etc.

But further, as we have seen, the city is not bound to collect surface water which falls upon a highway, and to lead it into a sewer. (Lynch v. Mayor, supra) Again, while the city could not plead the quasi-judicial character of the plan and construction of the bridge as to acts within the rule laid down in Seifert's Case or Huffmire's Case (supra), I think that it may do so, so far as the question of the disposal of the surface water, presented by this record, is concerned. (Paine v. Village of Delhi, 116 N. Y. 224, and the distinction drawn in Seifert's Case, supra. See, too, Wilson v. Mayor, etc., of New York, 1 Den. 595.) I do not overlook the fact that the surface water on this highway may be more exposed to winds than if it existed on a surface street, but that is a matter of degree.

Thus there seems on the record to be a distinction drawn between debris which is swept off the bridge by the defendant, and the surface water which will blow there when the wind is in the right direction ” — a result not shown by the proof as due to any action of the defendant in the administration of the bridge. It may be that there has been an increased flow by reason of the structure, but this alone is not sufficient, as we held in Carll v. Village of Northport (supra). There is no proof that the construction of the fabric is such as necessarily to collect the water into an artificial channel, ' whence it fell or flowed or was discharged onto the premises. The principle of judicial notice is not involved. (See Town of North Hempstead v. Gregory, 53 App. Div. 350.)

As. the present proof is not sufficient to cast liability on the . defendant for the surface water, and as the damages are evidently based iii part upon the flow or fall of such water, the judgment must be reversed.

Hirschbérg, P. J„ Woodward and Hooker, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final áward of hosts. 
      
       5th ed. or 6th ed.— [Rep. ■
     