
    Frank Sabetto and Antonio Andro, Plaintiffs, v. The New York Central and Hudson River Railroad Company, Defendant.
    Fourth Department,
    July 7,1908.
    Watercourses — drainage of surface waters — obstruction of ditches of lower proprietor.
    A lower landowner is not liable for allowing its ditches to become filled so that they fail to carry off surface, waters' flowing from the lands .of an upper proprietor. " .
    Thus," a railroad company which has dug ditches on its right of way to carry off surface waters is not liable to the owners of higher- lands, who have dug ditches to discharge surface waters into the railroad ditches, for damages to crops caused by the hacking up of surface waters owing to the obstruction of the railroad ditches, where it does not appear" that the water causitig the damage was surface water from the railroad, lands.
    Motion.by the- plaintiffs, Frank Sabetto and another, for a new " trial upon á case containing exceptions, ordered to .be heard at. the
    Appellate Division in the first instance upon a nonsuit granted by the court at the close of the plaintiffs’ case upon a trial at the Cayuga Trial Term in January, 1908.
    
      James Wright, for the plaintiffs.
    
      Harris & Harris and W. Frederick Strang, for the defendant.
   Williams, J.:

The plaintiffs’ exceptions should be overruled and the motion for a new trial denied, with costs.

The action was brought to recover damages for injuries to crops and land occasioned by setting back water.

The railroad ran east and west. The plaintiffs’ lands lay just south of the railroad. Along through the center of plaintiffs’ land was a ridge, north and south, higher than other land in the vicinity. Many years ago the railroad constructed a ditch upon its right of way, running easterly from this ridge and emptying into a State ' ditch, and another one running westerly from this ridge and emptying into the Seneca river. There was no watercourse in this locality. The ditches were designed to take care of surface water merely. The plaintiffs dug ditches on their land connecting with the railroad ditches, and their neighbor next south of them dug ditches connecting with plaintiffs’ ditches, so that the surface water from plaintiffs’ and their neighbor’s lands, which were higher than the railroad right of way, discharged their surface water into and through the railroad ditches.

In 1902 and 1903 the railroad had permitted its ditches to become filled up, so that they failed to carry off this surface water and it was set or held back upon plaintiffs’ lands and did damage to plaintiffs’ crops and land, and- for this the action was brought.

There-seems to be no doubt as to the law applicable to this case. The only questions áre of fact. In Barkley v. Wilcox (86 N. Y. 140) it was held that the lower proprietor'was under no obligation to take "care of the surface water of his adjoining upper proprietor, and he might fill in and improve his -lower lands, though by so doing he prevented the flow of the surface water upon his lands from his upper neighboring proprietor, to the latter’s damage. And it has been frequently held that a railroad incurred no liability as to surface water by building its embankment. (Erwin v. Erie R. R. Co., 98 App. Div. 402, and the cases therein referred to.)

The same rule was recognized in Branson v. N. Y. C. & H. R. R. R. Co. (111 App. Div. 737, 739, 740.) A recovery was there permitted by reason of the fact that, as to some of the water from lands other than plaintiff’s, the railroad company gathered them into a channel and' threw them back upon plaintiff’s lands.

As to the facts here, it seemed to be established that the railroad was the lower proprietor, it saw fit to dig two ditches upon its own land to take "care of its-surface water, the plaintiffs dug their ditches connecting them with the railroad’s ditches to carry off their (plaintiffs’)-surface water from land above the railroad’s, and plaintiffs’ neighbor above dug ditches connecting with plaintiffs’ to take' care of his surface water. While the railroad’s- ditches were kept open ■all the surface water from above was taken care of, but when the railroad ■ ditches were allowed to become obstructed the surface water did not run off fréely, but set or was held back upon plaintiffs’ premises. If the railroad set its surface water back on plaintiffs’ land it would be liable for the damage occasioned thereby, but it does not appear any damage was occasioned by the railroad surface water. All the surface water from' above was set of held back, and even, if it was possible some of the failroad water was set back also with the surface water from above, how could it be said the damage was caused .by the railroad’s water ? Its land was the lower, and unless it was established- affirmatively that the water was set back and thrown upon plaintiffs’ land and did damage,, no recovery could be had.

It was nót so established- by the evidence given on fhe trial. The railroad company could not be held liable -because" it allowed its ditches to become filled up so as not -to take care-of the surface water of its upper proprietor.- ■ ■' c

The nonsuit was properly -granted. -.

All concurred.

Plaintiffs’ exceptions overruled, motion for new trial denied,'and • judgment ordered for the defendant upon" the nonsuit, with costs: "■  