
    Emma K. White, Respondent, v. The City of Buffalo, Appellant.
    Fourth Department,
    March 3, 1909.
    Pleading — nuisance — obstruction of river by municipal corporation — conclusions of law not admitted by demurrer — duty of city of Buffalo in reference to structures obstructing river.
    In an action by a riparian owner against the city of Buffalo to recover damages on the theory that the city, owning the bed of the Buffalo river, has placed obstructions therein constituting a public nuisance which it has failed to abate, allegations that it is the duty of the city to abate .the nuisance and that it has full power to do so, are mere conclusions not admitted by a demurrer. The duty and power of the city to remove obstructions from the river depend upon the charter and acts of the Legislature relating thereto.
    Although such complaint contains allegations that the city has placed obstructions in the river for the construction of railroad bridges (which Were lawful structures under section 404 of the charter) they cannot be taken as stating a separate cause of action, being merely allegations of additional damages resulting from the main nuisance alleged.
    Section 395 of the charter, providing that the city shall abate all nuisances, has no reference to nuisances in the Buffalo river which can be abated only by making extensive improvements.
    The abatement of nuisances in the river is governed by section 405 of the charter, as amended, and also by the power to improve the river conferred by chapter 527 of the Laws of 1896. But neither said section nor said act makes it the duty of the city to make improvements necessary to abate nuisances in the river; they merely confer a discretionary power to do so. Thus, the power conferred on the city is judicial, not administrative.
    The failure of the city to exercise such discretionary power to improve the river and abate the nuisance does not render it liable to an action for damages.
    Appeal by the defendant, The City of Buffalo, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of the county of Erie on the 20th day of October, 1908, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendant’s demurrer to the complaint.
    
      Louis E. Desbecker and John W. Ryan, for the appellant.
    
      Carleton H. White, for the respondent.
   Williams, J.:

The interlocutory judgment should be reversed, and the demurrer sustained, with costs, and with leave to plead over.

The action is brought to recover damages for nuisance. The defendant demurs to the complaint on the ground that it does hot state facts sufficient to constitute a cause of action. It does state that plaintiff owns land along and in the vicinity of Buffalo river within the city; that the city is a municipal corporation; the river is a navigable stream and public highway, and that the city owns the fee of the bed of the river; that the river periodically overflows and floods the lands bordering on and adjacent thereto, causing damage to plaintiff, and that such overflow constitutes a public nuisance ; that the city has assented to the placing of obstructions in the bed of the river, which increase the damage caused by the nuisance; that the nuisance can be abated at reasonable cost and expense; that the city refuses to abate it, and has decided that it will not do so.

These allegations so far are of fact purely and must be deemed admitted for the purposes of the demurrer. The other allegations may be said to be conclusions, viz., that it is the duty of the city to abate the nuisance, and that it has full power to do so. These are not necessarily admitted.. They are really to be determined from an examination of the charter and various acts of the Legislature, and then upon the facts so admitted and found the question arises whether the cause of action is established.

First. As to the duty and power of the city to abate the nuisance.

The power to do so seems to be clearly given by section 405. of the charter (Laws of 1891, chap. 105, as amd. by Laws of 1900, chap’. 571), which provides that the city may make such improvements in the river, in its surroundings, as would apparently abate the nuisance' complained of, and provides for the defraying of the expense thereof, and such power to improve was also given by chapter 527of the Laws of 1906, which declared the periodical overflow of the river and the flooding of lands bordéring on and adjacent to the same to be a public nuisance, and authorized the city to abate the same by the means and in the manner therein pointed out. In neither section 405 of the charter, nor the act of 1906, was it expressly declared to be the duty of the city to make the improvements necessary to abate the nuisance referred to, nor was the city in either act directed to make the improvement and abate the nuisance.

It is provided by section 395 of .the charter that the city shall abate all nuisances, but it will hardly be claimed that this section covers and includes the nuisance in Buffalo river, which could only be abated by the making of extensive improvements therein, and which was made the subject of section 405, following section 395. The intention evidently was to make this river and the improvement thereof, so as to abate the nuisance therein, the subject of separate and special provisions. And it will be noticed that these provisions when framed carefully avoided making the improvements mandatory. They merely gave the city the power to make the same.

The act of 1906 showed the extent of the undertaking to so improve the river as to abate this nuisance. It contemplated the expenditure of $1,500,000, and the necessity of acquiring additional lands and the straightening of the channel of the river. Such improvements as these could not have been intended to be covered by the requirements of section 395 of the charter that the city should abate all nuisances.

It is fair to conclude that the intention indicated in the charter, and the act of 1906, was that constructive work of the character, extent and cost contemplated should rest rather in the discretion of the city than the mandate of the Legislature. If this improvement was designed to be mandatory, the word “ shall ” or “ must ” could easily have been used in place of the word “may” and the matter thus placed beyond doubt. It seems to me the duty to so improve the river as to abate the nuisance complained of was not absolute, but discretionary; that it required the exercise by the city of judg- ' ment and discretion, and was in that sense, judicial in its nature, and not administrative.

Second, For the failure of the city to exercise this discretionary power of a judicial nature to improve the river and abate the nuisance, it is not liable in this action for damages. (O'Donnell v. City of Syracuse, 184 N. Y. 1.)

There seems to be no doubt 'as to the principle of law. The difficulty here is as to the facts. The trial court says of the O'Donnell case: “ Eo absohtte duty to prevent floods from injuring plaintiff’s lands was alleged or proved [there], and it was held that no liability was cast upon the city for failure to exercise discretionary powers. Plaintiff herein alleges a, positive, absolute and imperative duty to abate nuisances imposed by law upon defendant' by its charter, and that by chapter 527 of the Laws of 1906 the periodical overflow of said river and the flooding of said lands is declared to be a public nuisance. * * * The city charter (§ 395) provides that ‘The common council shall * ■* * abate all nuisances.’ ” ' (60 Misc. Rep. 611.)

It will be seen, therefore^ that our disagreement is as to the allegation in the complaint of the defendant’s duty. ■ Upon our construction of the allegation, read in connection with the charter and the act of 1906, the action cannot be:maintained under, the doctrine of the O'Donnell case.

Third. There are-some allegations in the complaint with reference to placing obstructions in the river bed for the construction of railroad bridges, but I do not think they constitute a separate cause of action. ■ They are simply of additional damages resulting from -the main nuisance alleged; ' The city charter (§ 404, as amd. by Laws of 1895, chap. 805) provides that these bridges are lawful structures.

We cannot overrule the demurrer upon this ground alone. The complaint should stand or fall upon the main proposition passed upon herein.

All concurred.

Interlocutory judgment, reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to plead over within - twenty days upon payment of the costs of the demurrer and of this appeal.' • 
      
      
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