
    Felix McCabe, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Second Department,
    July 29, 1910.
    Water and watercourses — suit to enjoin railroad from overflowing adjoining lands — when release does not cover future damage — conveyance of lands without warranty of title — equity — when return of consideration not prerequisite to suit —' pleading —- complaint showing right to equitable relief.
    Suit in equity against a railroad company to enjoin it from obstructing drainage water by means of its embankment so as to flood the plaintiff’s landos. In 1895 the plaintiff made a claim against the defendant for damages byheason of the fact that a culvert maintained by the defendant through its railroad embankment was insufficient to carry off the drainage water so that it cut a channel through and washed away a- portion of the plaintiff’s lands. In settlement of this claim the defendant paid the plaintiff $500 and took a receipt in full settlement of all claims and demands which the plaintiff “has or may have ” against the defendant by reason of said damage from the overflowing óf water, etc., and providing for a conveyance from the plaintiff to the defendant of a strip of land. Subsequently the plaintiff conveyed the parcel mentioned in the receipt, whereupon the defendant constructed thereon an open drain through which the surplus waters flowed, upon the. premises of a third party. Thereafter the said third party by action ejected the plaintiff from a certain portion of the strip conveyed to the defendant, it being determined that the plaintiff did not have title to all the lands conveyed. Thereafter the' successor in title to the third party enjoined the defendant from collecting waters and precipitating them upon its lands, whereupon the defendant closed the drain and left matters in substantially the same condition as existed in 1895, when the settlement with the plaintiff was made.
    
      Held, that the receipt given by the plaintiff in 1895 in consideration of the payment of $500 did not cover future damages, but merely the damages which had ' then accrued by reason of the overflow, whether they were then asserted or not:'
    That in order to maintain the suit the plaintiff was not required to restore the consideration paid on the settlement of 1895,,because only a portioh thereof was paid for the lands conveyed, and also because the deed of the plaintiff contained no warranty of title, so that the defendant bought at its' own risk under the maxim of caveat emptor;
    
    That although the complaint alleged that the defendant after abandoning its drain wrongfully and unlawfully “ constructed,” and has ever since maintained an open drain, by means of which waters are unlawfully discharged upon the plaintiff’s lands, equitable relief should not be denied upon the ground that the defendant, instead of actually digging a drain, allowed the water to cut its own channel through the land.
    Hibschbebq, P. J., and Jenks, J., dissented.
    
      Appeal by the plaintiff, Felix McCabe, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eocldand on the 29th day of January, 1909, upon the decision of the court, rendered after a trial at the Eocldand Special Term, dismissing the complaint upon the merits.
    
      William McCauley, for the appellant.
    
      Amos Van Etten, for the respondent.
   Woodward, J.:

In the year 1879 the plaintiff became the owner of the premises described in the complaint, and in 1881 conveyed to the Hew York, West Shore and Buffalo Eailroad Company a right of way across the westerly portion of his premises for the purposes of a railroad, and that company subsequently constructed its roadbed upon an embankment some thirty feet high at or near the base of the mountain which rises abruptly at that point. The said railroad company’s property is now operated under a lease by the defendant in this action. At the time this railroad was constructed a culvert was built under the railroad track and through the embankment for the purpose of carrying the surface waters that might be accumulated on the west side of the track, and through that culvert such surface waters were conducted to the east and into the Hudson river. Prior to the year 1895 a portion of such waters passing through this culvert flowed over the premises of the plaintiff, and the evidence indicates that this was sufficient to cut a channel and to wash away a portion of the plaintiff’s lands. The learned court at Special Term has found that such trespass upon the lands of the plaintiff prior to 1895 constituted an unlawful act. Without discussing this question it is sufficient to say that the plaintiff in 1895 made a claim against the defendant for damages growing out of such flowing over his premises, and that after negotiations this claim was settled on the part of the defendant by the payment of $500. At the time of such settlement the plaintiff delivered a receipt In full settlement and satisfaction of all claims and demands whatsoever which Felix McOabe has or may have against the West Shore Eailroad Company and The Hew York Central and Hudson Eiver Eailroad Company, or either of them, by reason of damages to land of said Felix McCabe, in the Town of Haverstraw, Eockland County, N. Y., from the overflow of water and the washing out of sand and other soil and materials adjoining the West Shore Bailroad; for all expénses by reason of said overflow and washing out; for conveyance of a parcel of land, and for general release, $500.00. (Deed and release to be executed.) ” Subsequently the plaintiff delivered a deed to the defendant of the parcel mentioned in the receipt, and the defendant entered upon the same and constructed an open drain across the said strip or parcel, and thereafter the waters from the said culvert were carried through the said drain to the gully upon the premises of one Daniel De Noyelles, whence it found its way into the Hudson river.

In the year 1897 Daniel De Noyelles and others brought an action-against the plaintiff in this action to eject him from certain premises, including a part of the said fifteen-foot strip which the plaintiff had attempted to convey to the defendant. In that action it appears to have been determined that the plaintiff did not have title to all of the said fifteen-foot strip; the boundaries, appear to be slightly different from the boundaries fixed in said deed, and not reaching entirely to the gully, which is concededly upon the premises of the De Noyelles Brick Company, the successor in title of the said Daniel De Noyelles. Nine 'years later the De Noyelles Brick Company brought an action against the defendant in this action to enjoin and restrain it from collecting waters and precipitating them upon its premises by means of the open ditch through the said fifteen-foot strip. This action resulted in a judgment against the defendant, enjoining it from thus trespassing upon the De Noyelles Brick Company’s premises, and thereupon the defendant closed up said open drain “and leveled off the ground, and left it in substantially the same condition that it was in in 1895, when the $500 settlement was made by the defendant with the plaintiff,” to quote the opinion of the learned justice who presided at the trial. (114 N. Y. Supp. 303.)

It is to be remembered that the learned justice has found as a conclusion of law that the act of the defendant in 1895 in accumulating waters and discharging the same upon the plaintiff was an unlawful act, and he tells us in his opinion that the defendant, after being denied the ' right to discharge its acciimulated waters upon the brick company’s premises, closed up its drain through the fifteen-foot strip and left the ground on the east side of the railroad, adjacent to the plaintiff’s premises, “ in substantially the same condition that it was in in 1895, when the $500 settlement was made,” and it is not disputed that within a space of a few months thereafter the plaintiff suffered great damages by reason of the flooding of his premises in the same manner that they were unlawfully flooded prior to the settlement in 1895, yet the learned justice tells us that if the “defendant’s contention is correct in this respect, then the plaintiff has no cause of action, because the settlement of 1895 included past, present and future damages,” etc. Before passing to the further reasoning of the court, let us determine, if we may, whether it is true that the receipt given by the plaintiff in the settlement of 1895 covered “ past, present and future damages.” That it covered past and present damages is not, of course, open to dispute; the language of the receipt, “all claims and demands whatsoever which Felix McCabe has or may have * * * by reason of damages to land * * * from the overflow of water and the washing out of sand and other soil and materials adjoining the West Shore Bailroad ; for all expenses by reason of said overflow and washing out,” etc., clearly speaks of claims and demands then existing. But where is the ground for holding that it contemplated future damages ? The parties were certainly not dealing on the basis that there were to be any future damages, for it was provided that the plaintiff should convey a parcel of land for the purpose of affording a drain to convey the waters into the original channel, and the defendant took this conveyance, and for a period of more than ten years the waters were conducted through the open drain upon this land conveyed by the jdaintiff. The receipt, if it means anything, means that the claims and demands then existing were to be settled and disposed of, and that to avoid future liability, the defendant would purchase the plaintiff’s fifteen-foot strip of land and conduct the waters from the culvert through this land to the gully on the premises of the brick company. The respondent cites as authority for the construction which the learned court has put upon this receipt, the case of Kirchner v. N. H. S. M. Co. (135 N. Y. 182), in which the instrument in terms absolved the defendant from liability for any demand or canse of action which the plaintiff might have against it, either upon contract or in tort, and especially for all trespasses committed by it, or damages for which it might be responsible .to the plaintiff, and the court say: .“ The cause of action in suit here then existed, and the release was, upon its face, sufficiently comprehensive to include it within the scope of its operation.” How this in any manner supports the construction here under consideration we are at a loss to understand ;• it merely holds that a cans.e of action in being at the time of a general release is included within such general release, though the parties may not have had the particular case in mind at the time. Hor does the case of Murphy v. City of New York (190 N. Y. 413) aid the respondent, for the court quotes with approval the rule as asserted by the Supreme Court of Massachusetts in Dunbar v. Dimbar (5 Gray, 103) that the intent is to- be sought from the whole instrument, “ and where, general words are used if it appears by other clauses of the instrument * * * that it was the intent of' the parties to limit the discharge to particular claims only, courts, in construing it, will so limit it.” The receipt here in question is speaking of the present; it limits, the release to claims and demands for damages to lands “ from the ovérflow of water,” and refers to the “expenses by reason of said overflow,” clearly referring to an overflow which has occurred. If we read the.word “may” as of the same force and effect as “can,” we should not find ourselves bound to say that the release referred to the future damages which the plaintiff has concededly suffered. If the receipt had declared that it was “ in full settlement and satisfaction of all claims and demands whatsoever which Felix McCabe hds or can have against the. West Shore railroad * * * from the overflow of water and the washing out- of sand and other soil and materials,” and for “ all expenses by reason of said overflow and washing out,” it would not materially change the construction; it would mean, as it means now, that all claims and demands growing out of such overflowing, whether presently asserted or not, shall be included in the release. It does not mention the future in any manner; it would never occur to any one reading this release that it was intended to, give the defendant a permanent license to flood his lands for the sum of $500, and as the language used is not ambiguous, there is no occasion for introducing words which the parties themselves did not intend to use.

But the learned court suggests, in connection with the matter we have been discussing, that the conveyance which was made to the defendant for the purpose of taking care of the waters from this culvert was of importance, and that if that plan failed because the plaintiff hád no title to the land thereby conveyed, he cannot have equitable relief without making a return or tender of the consideration paid on that settlement; that the plaintiff did not con- ' vey to the defendant a good title to the said 15-foot strip has been established by a judgment of the court, and the defendant has been-forced to close up the drain and cease using that strip of land for the purpose of disposing of the flow of water from the culvert, * * * and that if the conditions at the time this suit was commenced were the same as they were at the time of the settlement in 1895, the plaintiff, in order to maintain this action, must first restore' the defendant to the same position it was in at the time of the settlement in 1895. But the plaintiff claims that when the drain on the 15-foot strip was closed in August, 1907, the defendant opened another ditch or drain by which the waters were led from the culvert to other lands concededly owned by the plaintiff, thereby carrying the water in large volumes to plaintiff’s said lands. If that is true, then the plaintiff is entitled to a judgment in this action, because it is not claimed that any such drain led the water to the plaintiff’s premises prior to the settlement in 1895. This then, presents a question of fact upon which the burden of proof rests upon the plaintiff,” and the learned court then holds, .upon a conflict of evidence, that the plaintiff has failed to show that the defendant constructed a ditch to lead the waters upon the plaintiff’s premises, and this is attempted to be justified by holding the plaintiff to a very rigid construction of his complaint.

We are of the opinion, however, that the learned court has been led into error in an effort to adjust this case to individual conceptions of equity, apart from well-established principles. In the first place, it is certainly too broad a proposition to say that, because the plaintiff conveyed a parcel of land to the defendant for a particular purpose, in connection with his settlement for past damages, he cannot maintain an action without restoring “ the consideration paid on that settlement.” It seems to be conceded that $450 of the $500 was paid for damages and expenses in connection with the overflow, and that only $50 of the amount had anything to do with the purchase of the fifteen-foot strip. At most, therefore, there was only about $50 which by any possibility the plaintiff was bound to tender. But it does not appear that the title has fully failed; there .is merely a portion of the fifteen-foot strip which is held not to have been owned by the plaintiff, and just what portion does not appear. No fraud is alleged on the part of the plaintiff; no one suggests that there was any overreaching on his part, or that he had any reason to doubt that he was the owner of the fifteen-foot strip at the time he conveyed the same. The plaintiff did not contract to give • a .warranty deed; did not represent that he had title to all of the land necessary to reach the gully. His attorney wrote to the defendant that “ For this sum he-will convey to you such land as is necessary to enable you to turn- the culvert into its original channel,” but this . language is to be construed' in the light of the negotiation then under way for the settlement s the plaintiff’s damages, and the providing against future damages. • Both parties assumed that the plaintiff' owned a certain strip of land fifteen feet wide along the defendant’s right of way, which land was necessary to the relieving of the defendant’s embarrassment in talcing care of the waters accumulated at its culvert, and the proposition was to furnish this strip of land in connection with the settlement. It would be a forced and unnat-. ural construction, and one clearly not within the contemplation of the parties, to hold that the plaintiff intended to purchase any part of the'land necessary for the use of the defendant; he simply pro- - posed to convey that which he already had, and which should be “necessary to enable you to turn the culvert into.its original channel,” and this is what he attempted to do, and what he did so far as he was able, and for more than ten years the defendant acted under the title thus secured and was relieved from incurring further damages to the plaintiff. W'e. have never heard it claimed that the defendant, a railroad company, was above the maxim of ca/oeat emptor, or the rule of the common law that a purchaser of property buys at his own risk as to title and quality, unless the- seller gives a warranty or the law implies one ( Wright v. Hart, 18 Wend. 449, 452), and no such warranty exists in this case. The defendant in 1895 was a trespasser upon the rights of the plaintiff. The parties met and settled for the damages up to that time, and the plaintiff offered to sell the land which both assumed to own, and the defendant purchased it, taking the risk of the title being good, unless the contract between them provided otherwise. What is there about this transaction which should prevent a court of equity dealing with the situation as it is presented to-day ?

The suggestion that the pleadings are not broad enough to justify rélief to the plaintiff is, in our opinion, wholly untenable. The complaint alleges the ownership of the land in question and other formal matters, and in its 4th paragraph avers that “ on or about the 28th day of August, 1907, the defendant discontinued and abandoned the use .of the open drain leading southerly from the easterly end or outlet of said underground drain or culvert, along and within the easterly line of said railway, and by means of which the said waters were conveyed to and discharged upon, the adjoining lands of the said, The De Moyelles Brick Company, as aforesaid, and without the permission or consent of the plaintiff, and in violation of his right in the premises, wrongfully and unlawfully constructed, and has ever since, in like manner, wrongfully and unlawfully maintained an open drain leading from the easterly end or outlet of said underground drain or culvert, to and upon the plaintiff’s said premises, and by means of which the waters flowing through said underground drain or culvert, have been, and now are, wrongfully and unlawfully discharged upon plaintiff’s said premises, as hereinafter set forth,” and then the complaint alleges the impounding of the waters flowing from the mountain side on the west of the railroad and their discharge at different times upon the lands of the plaintiff through the said culvert and drain. There was evidence in the case sufficient to support a finding that the defendant had actually done just what is alleged in the complaint; that it had physically closed the drain to the southward and had opened a new drain to the eastward, substantially in the same location that it had existed prior to the settlement in 1895. It is not now questioned that the defendant did close the drain running in a southerly direction along the east line of the railroad, which was the one constructed upon the fifteen-foot plot, but the defendant introduced witnesses to testi'fy that no new ditch was constructed easterly from the terminus of the culvert, and the learned court at Special Term’ has- found upon this evidence that the “ defendant did ..not dig a drain or ditch from the mouth .of the Culvert on the east side to lead the water flowing, through the culvert to the plaintiff’s premises,” and that the evidence in this case fails to show that by this Culvert and ■ drain, surface waters were collected by the defendant and discharged ' in a single channel upon plaintiff’s land,” and it is claimed that this is conclusiveupon the plaintiff because the exact facts have support in the evidence^ and that the complaint.alleged such digging of a ditch.

The complaint,, it should be remembered, does not aver that the defendant through its servants went upon the ground and dug a ditch which led the waters to the defendant’s premises in a single channel; it says • that the defendant abandoned its drain leading southerly — the drain which turned the stream from an easterly direction as it came through the Culvert and diverted it to the south along the line of the railroad — “-and without the. permission or consent of the plaintiff,, and in .violation of his right in the premises, wrongfully and unlawfully constructed, and lias ever since, in like manner, wrongfully and unlawfully maintained an open drain leading from the easterly erid or outlet of said underground drain or culvert, to and upon the plaintiff’s said premises,” etc. The defendant admits that it abandoned the southerly drain ;.that it filled up the channel and leveled off the ground and left tlie situation about as 'it .was prior to the settlement of 1895. That is, it blocked up the channel which deflected the stream passing easterly through the culvert to the south, and left the rushing torrent created b.y heavy-rainfalls to pass through the culvert in an easterly direction toward the plaintiff’s premises, in substantially the same manner that it had done - prior to the settlement in 1895, and it clearly appears from the Case that at that time the- water had cut a channel through ¿the plaintiff’s premises, which had only been partially filled, Up during the years which it. has been under'cultivatiqn. If the defendant did not, therefore,, with pick-- and shovel, construct a new drain to the eastward, leading upbn plaintiff’s premises, it produced a condition, by closing the southerly drain, which' could have no Other effect . than to reopen and enlarge the channel which- had been originally unlawfully .created.. The evidence clearly discloses that the waters coming through this culvert during a storm were capable of forcing a channel; it is a matter of common knowledge that a rapidly flowing current of water will find a way of escaping in the absence of stronger barriers than sand and ordinary soil, and when the defendant produced a condition which must produce a new channel,.it, in practical effect, constructed that channel. The learned court at Special Term concedes in his opinion that the defendant closed the one channel and left the situation “in substantially the same condition' that it was in in 1895, when the $500 settlement was made,” and at that time he finds that the defendant was unlawfully discharging the waters through this culvert upon the plaintiff’s lands. Where, then, is the defect in the plaintiff’s case now? It is not necessary to the plaintiff’s case that he should show that the defendant actually constructed a ditch for the purpose of leaditig the waters-upon his premises in a single channel; he has come within the fair intent of his pleadihgs when he has shown that the defendant has taken such action that the channel has been produced in the natural course of events, and that he has suffered by reason of the discharge of the impounded waters upon his premises.

The judgment appealed from.should be reversed and a new trial granted, costs to abide the event.

Thomas and Eioh, JJ., concurred; Hirschberg, P. J., and Jenks, J., dissented.

1 Judgment reversed and new trial granted, costs to abide the event.  