
    McKee v. Delaware & H. Canal Co.
    
      (Supreme Court, General Term, Third Department.
    
    March 16, 1889.)
    1. Waters and Water-Courses—Dams—Overflow.
    Where a canal company constructs a dam across a natural stream which flows down through plaintiff's land, and discharges the water thus detained in larger amounts than the stream will carry, causing the same to overflow the land, it is liable for the injuries caused, though the company was authorized to construct the canal, and the same was constructed and maintained in a proper manner.
    2. Same—Remedies.
    The provisions of the charter of the company giving the right to a summary application for a jury to assess damages, does not take away plaintiff’s common-law right of action, or his right to an action in equity.
    Appeal from circuit court, Albany county.
    The plaintiff has been the owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel, and drained his flat land into it, so that the flat, which had been boggy and useless land, has become valuable meadow land. In 1871 defendant constructed quits own land a dam on this stream above plaintiff’s land. This dam holds back the water; and in dry seasons the defendant lets the water run through the brook to its canal, using the brook as a feeder. By doing this the defendant throws the water upon the plaintiff’s flat land, and injures it. This result seems to be owing in part to a gravel bar below the flat land which holds the water back, and thus turns it on plaintiff’s land. This action was brought in equity to restrain these acts of the defendant, and was tried before the court and a jury. The court charged that there was no evidence of neglect or want of care on defendant’s part; that plaintiff’s recovery did not depend on willful malice or negligent act of defendant. The j ury found a verdict for plaintiff. The court approved the verdict, and made several findings of fact and law. The court made no finding on the question of negligence, but found that defendant had not acquired a right to discharge water upon plaintiff’s land, and that it had at all times been practicable for defendant to cut down and lower the channel of the stream so as to convey the water in as large quantities as necessary without injuring plaintiff’s land. The court granted a perpetual injunction, and a judgment for past damages found by the jury. From this the defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Thornton A. Niven, for appellant. Timothy F. Bush, for respondent.
   Learned, P. J.

We do not think that the provision in the charter, c. 238, (Laws 1823, § 10,) which gives the right to a summary application fora jury to assess damages, takes away plaintiff’s common-law right of action, or his right to an action in equity. Selden v. Canal Co., 24 Barb. 362; Crittenden v. Wilson, 5 Cow. 165. The important question here is whether defendant is liable for the injury caused, without proof of some negligence on its part. It is not claimed that there was defect in the construction of the dam or in its maintenance; and the defendant only discharges the water at times, and in amounts necessary for the use of its canal. The case of Bellinger v. Railway Co., 23 N. Y. 42, held that where, in pursuance of legislative authority, a person interferes with a running stream by obstructing its flow, he will not be liable for overflows caused, unless on proof of want of due skill. Probably this case states the doctrine claimed by the defendant. Similar is the case of Cuddeback v. Canal Co., 20 Wkly. Dig. 454, where damage was claimed to arise by percolation from defendant’s canal. If this action were for damages occasioned by a break of the dam, the decision in Losee v. Buchanan, 51 N. Y. 476, at 487, would probably apply. But there is a difference in the present case. The plaintiff’s damages do not arise incidentally from the construction of defendant’s dam. They arise from the intentional act of defendant in discharging through an insufficient channel a large body of water, without providing sufficient outlet below plaintiff’s land. The defendant, having a supply of water obtained by its dam, desires to send that water down into its canal. It does this without regard to the fact (of which it has been notified) that the channel of the stream will not carry so large an amount; and therefore the defendant is really pouring this water upon plaintiff’s land, with knowledge that it is so doing. While, of course, the defendant has, we suppose, no wish to injure plaintiff, yet it does acts which it knows will directly injure him; and this it should not be allowed to do. The right to dam a stream, given by a legislature, may excuse the person who constructs the dam in a proper manner from liability arising from great freshets, or from ordinary percolation of water. But we think that such right does not authorize the person intentionally to pour the water thus accumulated upon the land of other persons. Nor may he do this by pouring it through the original channel of the stream in sucli large quantities that the channel cannot convey it. We are of the opinion that the decision of the learned justice was correct, and that the judgment should be affirmed, with costs. All concur.  