
    Mary R. Stoddard, Resp’t, v. The Village of Saratoga Springs, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    
      1. Municipal corporation — Sewers—Nuisance—When corporation liable.
    Where, in. an action to restrain the defendants from discharging the contents of a sewer which ran partly through a public street and then into a natural stream which passed through the plaintifE’s land, the defendants insist that the sewer is not a public sewer, but is a private one, because the expense is to be assessed on the adjoining owners: Meld, that as the making of the improvement is the act of the municipality, it is immaterial as far as the plaintiff is concerned whether the defendant was or was not •to be reimbursed by assessments on adjoining owners, and the sewer being in the street is within defendants’ control.
    
      2. Same—What not a defense.
    It was insisted that the petition for the sewer was not such as authorized defendant to construct it. Held, that if the defendant had no right to-cause sewage to be discharged into a brook crossing plaintiff’s lot, it is no defense to say that defendant had no right at all to construct the; sewer.
    3. Same—Use of sewer by third persons—Effect of as to liability"
    of corporation.
    Where an injury arises from the use of a sewer by third persons who> connect it with their privies, a municipality may not lawfully convey the foul matter thus collected and throw it on private property.
    4. Same—Injunction—When properly granted.
    It is urged that the injunction is wrong because the defendant does not. own and has no control over a portion of the sewer which is on private property. Held, that as the injunction only forbids the defendant from further allowing the sewer from the street to flow on the plaintiff’s land, it. was properly granted.
    Appeal from a judgment entered on the report of a. referee.
    
      Edgar T. Brackett, for app’lt; John L. Henning, for resp’t.
   Learned, P. J.

—This is an action to restrain the defendants from discharging contents a sewer into a natural stream which after receiving such contents passes, through plaintiff’s land. There seems to be no dispute that the sewer does so discharge its contents and that the result is injurious to plaintiff’s land.

The defendants insist that the sewer is not a public sewer; does not belong to defendants and that defendants are not responsible for its construction or for the consequent damages.

The sewer runs through Lawrence and Harrison streets to Division, thence through private grounds to Walworth, in which street it connects with the aforesaid stream (called Waterbury brook). That stream passing along Walwortn street turns and crosses plaintiff’s land. The sewer was. built under a contract made by the defendant with on» Adams in 1876; and the specifications provide for the connection with the Waterbury brook. This contract purported to be made under chapter 271, Laws 1874, §§ 3 and 4. The defendant insists that the sewers therein provided for are private because the expense is to be assessed adjoining-owners; and, also, that the petition was not in conformity with the act because the sewer was to be partly on private-property.

As to the sewer being partly on private property it may be that the owners of such property might have objected to-its construction. But they have not and the sewer Has been built. The defendant by this objection says to plaintiff that it is not liable for injury to her land, because for the purpose of doing such injury the defendant trespassed on. some other person’s land. That is a poor excuse.

Again, the contract for building the sewer was made by defendant. It is immaterial then, so far as this plaintiff is •concerned, whether the defendant was or was not to be reimbursed by assessments on adjoining owners. The costs of improvements are often assessed on the land benefited. .But yet the making of the improvement is the act of the ¡municipality.

: If the whole of this sewer were a private land then it might be improper to adjudge that the defendant should ■close or stop it; because they might have no right to enter on private land. But much of the sewer is in the street and is, therefore, within defendant’s control. When the defendant shall have done all in its power to prevent the injury which the plaintiff suffers, it will then be time to inquire whether any others are injuring her land.

Nor can the defendant protect itself on the ground that the petition for this sewer was not such as to authorize defendant to construct it. If the defendant had no right to cause sewage to be discharged into a brook crossing plaintiff’s lot, it is no defense to say that defendant had no right at all to construct the sewer.

The defendant insists further, that it is not liable, because the injury arises, from the use of the sewer by third persons who connect with it their privies and water closets. But such was the very object of the sewer. A municipality does not (except from its own buildings), discharge sewage into a sewer. But it constructs the sewer that persons on its line may connect their houses with it, and discharge sewage into it. And it may not lawfully convey the foul material thus collected, and throw it on private property.

The defendant further urges that the injunction is wrong . “because the defendant does not own, and has not control over the five hundred feet of the sewer which are on private property. We have above pointed out the answer to this. The defendant can control, stop up, or divert the sewer at Division street, or further up. The injunction •only forbids the defendant to further allow the sewage and filth from the Lawrence street sewer to flow on plaintiff’s land. Lawrence street is above Division. Nothing in the injunction requires defendant not to allow sewage, if any, which enters the sewer from the private property below Division street, to flow on plaintiff’s land. Whether the defendant would be liable in respect to such sewage, we need not say. The referee has not held the defendant liable in respect to such sewage; and the subject is not before us.

We think that the facts and the law sustain the referee’s findings.

The judgment is affirmed, with costs.

Landon and Ingalls, JJ.. concur.  