
    James Reed et al., Claimants, v. State of New York, Defendant.
    (Claim No. 34789.)
    Court of Claims,
    July 21, 1959.
    
      Lynch \S Lynch (Henry D. Snycler, Jr., of counsel), for claimants.
    
      Tjouis J. Lefhowite, Attorney-General (Lawrence Wayne of counsel), for defendant.
   Richard S. Heller, J.

On August 31, 1956, following a rainstorm, the water in an unused portion of the old Champlain Canal in the Village of Schuylerville, Saratoga County, New York, rose and overflowed the banks causing damage to the real and personal property of the claimants.

In 1953 the State had removed a bridge over the canal 75 feet easterly of claimants’ house and had filled in the canal bed to provide a roadway to replace the bridge. In this roadway were two pipes to provide for the flow of water under the roadway; one at normal water level with a diameter of about three feet and one about two feet in diameter located below the other pipe.

It is established that prior to the construction of the roadway there had been no overflow in the canal. It is also established that the State had notice of overflowing after the replacement of the bridge with the roadway.

South of the new roadway 2,000 feet was a dam with a gate valve that had been used on prior occasions to lower the level of the canal. This gate valve was under the control and supervision of the State even though the opening and closing in time of high water was left to a village official.

The flooding could have been prevented if the State had exercised ordinary care and maintenance. If the culverts were open and the State caused the overflow by failing to open the gate valve to lower the level of water, they failed in their duty of reasonable care. On the other hand, if the State allowed the culverts to become clogged or if the culverts were inadequate, then, the State is also negligent. (Daly v. State of New York, 132 Misc. 92, revd. 226 App. Div. 154; Moltion v. State of New York, 193 Misc. 850, affd. 277 App. Div. 835, affd. 302 N. Y. 177.)

Claimants have established damages in the sum of $1,600 and are entitled to an award in that amount.

The claims were duly filed and have not been assigned.

The foregoing constitutes the written and signed decision of the court upon which judgment may be entered. (Civ. Prac. Act, § 440.)

Let judgment be entered accordingly.  