
    (128 App. Div. 799.)
    MENEELY v. KINSER CONST. CO.
    (Supreme Court, Appellate Division, Third Department.
    November 25, 1908.)
    Master and Servant (§ 320)—Construction—Remedy op Riparian Owner.
    Where the obstruction of a stream was involved in the state plan for the construction .of a barge canal, and the stream was obstructed by the contractor by direction of tibe state engineer, the remedy of a riparian owner whose rights were thereby impaired was against the state alone through the Court of Claims, and the contractor was not liable.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1261; Dec. Dig. § 320.*]
    Appeal from Trial Term, Washington County.
    Action by George Meneely against the Kinser Construction Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.
    Reversed and new trial granted.
    
      Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
    Edgar Hull (Edgar T. Brackett, of counsel), for appellant.
    Erskine C. Rogers, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SMITH, P. J.

The defendant was constructing the new barge canal near Dunham’s Basin, in Washington county, N. Y. In constructing one of the spoil banks according to the direction of the state engineer, he dammed up a small ditch, which was called “Dead Creek,” and which operated to drain' certain lands northeasterly thereof. This plaintiff was the lessee of about 3% acres of land situated alongside of Dead creek about a mile and a half northeasterly of the place where the same was filled up. In September, 1907, there were heavy rains. His land was overflowed, and a potato crop which he had planted was damaged. The plaintiff’s claim is that the obstruction of Dead creek by this spoil bank caused the water to flow back, over, and upon his land, and, also, that it prevented the drainage of his land which would otherwise have occurred to the damage of his crop thereupon, and for which the defendant is claimed to be liable.

The first defense is that defendant was acting under the authority of the state, which had the right to locate its banks where it would, subject only to its liability for compensation for damage to be obtained through the Court of Claims. It seems clear that the state has the right to dam up this stream without furnishing another outlet therefor if it had deemed necessary in the prosecution of this work, and that damages could have been procured therefor through the Court of Claims. If the state had the right so to do, its servant acting in its behalf, or one who by contract does its work, is guilty of no wrong in so doing. The remedy of a riparian owner whose rights have been impaired is against the state which has assumed to create the obstruction of the stream. The question is not one of negligent construction. True, the contractor might have provided temporarily for such waters, but such a provision could only be temporary until the spoil bank were built a little further north. In the case of Covert v. Cranford, 141 N. Y. 525, 36 N. E. 597, 38 Am. St. Rep. 826, the construction of the work did not necessarily involve the interruption of the stream. Here the obstruction of the stream was involved in the state plan. The stream was obstructed by direction of the state engineer. The state contract made no provision for caring for the waters of Dead creek. The contractor is under the contract liable for damage caused during the construction of the work. But this does not mean for damages to riparian rights which have been appropriated by the state. For such injuries the state alone is liable. The judgment and order should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment and order reversed, and new trial granted, with costs to appellant to abide the event All concur.  