
    Robert Gordon, Jr., Respondent, v. The Village of Silver Creek, Appellant.
    Fourth Department,
    July 7, 1908.
    Municipal corporations—nuisance by use of soft coal—pumping station -— liability while exercising governmental function.
    Where a municipal corporation by the use of soft coal in a newly-erected piimp^ i'ng station creates a nuisance and damages private premises which have been residential property for years it cannot escape liability on the ground that it is .exercising .a governmental function delegated to it by the State and is not responsible for the' misuser of such function.
    That the owner was a resident of the municipality and that the property damaged was within .its limits does not alter the case.
    The fact that the house in which the owner resided during the period for which he recovered damages was: not built until after the pumping station. is imma.terial where the property had been residential for many years.
    Where the destruction of and damage to the property clearly raises the inference that the use bf soft coal in the pumping plant was unreasonable, an express finding to that effect is unnecessary. •
    
      Appeal by the defendant, The Village of Silver Creek, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 3d day of January, 1908, upon the decision of the court rendered after a trial at the Chautauqua Special Term.
    
      George E. Towne, for the appellant.
    
      Thomas H. Larkins, for the respondent.
   Robson, J.:

Plaintiff is the owner of premises in the village of Silver Creek, upon which he had resided for nearly twenty years prior to the commencement of this action. Defendant is a municipal corporation duly organized and acting under and pursuant to the General Village Law. Some six years prior to the commencement of the action defendant built a pumping station near plaintiff’s premises and installed therein boilers and other machinery for pumping water from Lake Erie. The service which this part of the plant was intended to accomplish was the furnishing of an auxiliary, or supplemental, supply of water at those times when the usual source, of supply by the gravity system, theretofore installed, became inadequate, or, as on occasion it did, failed entirely.

Though plaintiff had occupied these premises for a number of years before defendant erected its pumping plant, the house in which he resided during the time for which he has recovered damágés was not built until after the pumping plant was put up. Defendant’s counsel seeks to attach some significance to this fact as a defense to plaintiff’s claim, but I do not think his claim in that regard has any merit. Plaintiff’s premises were, and had been for many years, residential property; and were, adapted to and used exclusively for that purpose. The smoke nuisance, created by defendant, of which plaintiff complains, and for which he has recovered damages, invaded plaintiff’s right to the use of his premises as he had continuously used them for years before the pumping plant was established.

Defendant’s principal assault upon the judgment is based upon the claim that, in establishing the pumping plant and thereafter operating it, defendant was exercising a governmental function-delegated- to it by the State, and, therefore, it is not responsible either for the non-user, or, as in-this case, the misuser, of its dele-' y gated power. In support of this claim the case of Springfield Fire Ins. Co. v. Village of Keeseville (148 N. Y. 46) is chiefly relied on. While the court in that case does use the comprehensivé expressions' as to the non-liability of a municipal corporation, for tlie non-user, or misuser, of.a delegated governmental function, and further determines that the installation and operation by a munici- ' pality of a water works system is a governmental functidn, I do not ■ think it is an authority applicable to, or in any way decisive in determining, the respective rights of the plaintiff in this action. ‘The misuser referred to in the Tillage of Keeseville case related only to a failure to accomplish the purpose for which the water works system was installed, not to the damages to property Owners occasioned by appropriating, or destroying, their property rights by reason of the erection or operation of the plant. The case of Sammons v. City of Gloversville (175 N. Y. 346) seems decisive authority adverse to defendant’s contention on this point. In that case plaintiff’s property was - damaged by the discharge of sewage in. a creek flowing through plaintiff’s premises. The city’s authorities were empowered by statute to construct' and maintain, sewers so as to discharge them into the- creek .in question. Thé same claim now urged, -that the city was exercising simply ail authorized governmental power in the construction and operation of its sewage system, was fully exploited and considered in that case. In disposing of this branch of the.case the court says-(p. 352): “The ' charter, in authorizing a system of sewers and drains discharging into • the-stream, neither conferred an Unusual power, nor a right ' to deposit- sewage upon the plaintiff’s lands, situated miles below the city. If the results complained of are unavoidable, then we may not assume a power, implied from the permission of-the charter, to destroy.the plaintiff’s property withoút compensation. The Legislature could not authorize-such an injury without requiring payment for - the consequences and it has not assumed to do so.. The plaintiff is not seeking to interfere with tíié construction or maintenance of the municipal system of sewérs; his complaint, as the finding, is that the sewage of the city is carried down'to and upon his lands to the injury of'their use, and so as to create, a nuisance. We think that the legislative intent was that the discretion of the municipal authorities, in maintaining a system of sewage, should be .exercised in conformity with private rights, and if their destruction he involved, that in such a case payment must be made.”

It is true that in the case last.cited plaintiff was not a residént of, nor was the property damaged within the limits of, the defendant corporation. But I do not see how that fact differentiates the case from the one before us, so far as a determination of the question now presented is involved. For the purpose of establishing or maintaining an authorized municipal public work it does not seem that the municipality can have any more power to appropriate even for the public use, either by taking actual possession of property of a citizen of a municipality as a site for its public works, or by the practical destruction of a citizen’s property rights by maintaining and operating such works than it would have if the owner were not a citizen of the municipality and the property affected not within its borders.

It is doubtless true that the law relating to private nuisance is usually a law of degree, and turns upon the question of fact whether the use is reasonable or not under all the circumstances. (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40.)

If plaintiff’s damages were unimportant, or such as might naturally he supposed he would suffer as incident to the probable or reasonably anticipated lawful use to which property in his immediate neighborhood might he applied, then he might have failed to establish a cause of action. But the evidence amply supports the findings of the court that the damages inflicted by defendant’s acts are serious and substantial. If it was necessary for defendant to use soft coal with the results to plaintiff’s property which the evidence discloses, then beyond question defendant appropriated for its own purposes plaintiff’s property to the extent it damaged and ■ destroyed it.

Defendant’s counsel further urges that tíie findings of fact are insufficient to warrant an award of damages, because there is not an express finding that the use of soft coal and the manner of its use by defendant in its pumping plant were unreasonable. That a nuisance is not established unless the interference with, or extent of the appropriation of plaintiff’s rights is under all the circumstances of the case unreasonable may be conceded.' The unreasonableness of the use' is- a fact which must necessarily he established and appear, as a fact found,, or as a necessary inference from other facts found. (McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40, 47.) The destruction and damage of plaintiff’s property, to the extent and. in the manner found by the court as facts, clearly discloses the inference that defendant’s use óf its ¡lumping plant while soft coal was used as fuel was. unreasonable undér all the circum-' stances,'and, therefore, an express finding to that effect is not'necessary. Even if necessary the presumption might- be indulged in support of the judgment that this fact, has been found in favor of plaintiff.

All concurred1. '

Judgment affirmed, with costs.  