
    Emerson Orvis, Appellant, v. The Elmira, Cortland and Northern Railroad Company, Respondent.
    
      Nuisance —liability for an embankment and bridge causing water tobe set bach upon adjoining lands—a complaint based upon a nuisance need not allege negligence — a grantee is not liable for a nuisance created by Ms grantor until after notice and a request to abate it—oral evidence to locate pi'emises described generally in a deed.
    
    The complaint in an action alleged in substance that a railroad corporation, which was the predecessor and grantor of the defendant, constructed, for the purposes of its roadbed, ah embankment from five to ten feet above the natural surface of the soil, running through certain lowlands on either side of a creek, across which it had built a bridge having a single row of piles to support it in the center; that the defendant subsequently rebuilt the bridge, extended the abutments, and placed six rows of piles under the sanie, thus narrowing and obstructing the channel so that at times of high water there was not sufficient space for the natural flow, and that the bridge was negligently constructed, and that it, together with the embankment, caused large quantities of water to collect in times of high water, upon the land of the plaintiff, which was situated on the creek above the bridge.
    There was no allegation that the embankment' itself was negligently, improperly or illegally constructed, or that any notice had been given to tl e defendant that it caused damage to the plaintiff or that its removal had been requested.
    
      Held, that as the action was not'based upon negligence, it was not necessary that the complaint should allege that the embankment was 'improperly, negligently or illegally constructed; that the plaintiff might sustain his action upon the ground that the defendant or its grantor, in obstructing by the bridge and the embankment the flow of water, was guilty of a wrongful and unauthorized act, constituting in fact the creation of a nuisance;
    That, inasmuch as the embankment was not obviously a nuisance, and had been erected many years before by the defendant’s grantor, and as there was no averment in the complaint or proof on the trial that the defendant had notice that the embankment caused damage, or of a request to remove it, it was of no consequence whether or not the embankment was the property of the defendant; and hence it was not error on the part of the court to .exclude evidence offered by the plaintiff to establish the defendant’s title to the embankment, the defendant not being liable for the damages caused thereby.
    
      Semble, that where words of general description are used in a deed oral evidence may be resorted to in order to locate the premises conveyed.
    Landón, J., dissented.
    Appeal by the plaintiff, Emerson Orvis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 18tli day of February, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office - on the 18tln day. of February, 1895, denying th¿ plaintiff’s motion, for '■& nesv trial' made,, upon -a -.case, and. exceptions. • ' . . ■ ; ...
    
      H. H. Rockwell, for the appellant.
    
      Frederick Collin, for the respondent.
   Putnam, J.:

This action was brought to recover damages arising from the construction of defendant’s railroad bridge and embankment in the town of Horseheads, Chenango county, thereby causing an obstruction in the flow of. the Waters of Rewtown creek, and the flooding of plaintiff’s lands. The complaint alleged: That heretofore the Utica, Ithaca and Elmira Railroad Co. constructed its railroad through said town of Horseheads and across Hewtown ,creék, and the low lands situate on either side- thereof,, and. raised and Constructed an embankment for its roadbed through the said lands adjoining said creek on either side thereof, from .five to ten feet above- the natural -sur-face of the; soil, and across the. Creek constructed a wooden, bridge, having a space of about sixty feet, with a single row of piles to support' the center of said space, about the middle of said creek; that in or about March, 188.4, the defendant duly succeeded to' all the property, roadbeds, bridges and other appurtenances theretofore owned by said Utica, Ithaca and Elmira Railroad'Company and its successor or successors,'and took possession thereof, and had ever since been using and operating said railroad and appurtenances.”

' That In'the year 1885 the defendant rebuilt said bridge, and, in doing so, extended the abutments and placed six rows of piles under the saíne,, and thus narrowed and obstructed the channel so .that at times of . high water there was not sufficient space for its natural flow; that said bridge was negligently, unsldllfully and improperly constructed, and, together with the embankment above mentioned, caused large, quantities of wuter to: collect upon the land of plaintiff and others situate on the creek above the bridge, in time of high water.

The complaint further stated that on two occasions, in June, 1889, and once in November, 1889,- sudden freshets occurred, and, in consequence of the negligent and improper construction of said bridge, the flow of the water in said Newtown creek was obstructed and the water was dammed up and turned back on the lands north of the bridge. Such obstruction was increased by the embankment of the " defendant’s railroad, constructed across the low lands, and the great accumulation of water that should have had its outlet southerly through the channel of Newtown creek, was thrown back and caused to flow over the low land situate northerly of said railroad, including lands owned by the plaintiff. The complaint does not - allege that the embankment was negligently, improperly or illegally ■ constructed, or any notice to the defendant that it caused damage to the plaintiff, or any request to remove it.

The plaintiff sought to recover damages for the said flooding of his lands caused by said railroad bridge, which he averred was negligently and improperly constructed, and which flooding was increased by said embankment.

I think the complaint was not insufficient to allow the plaintiff to recover for damages caused by the embankment, because it failed to aver that such embankment was improperly, negligently or illegally constructed, if otherwise showing defendant’s liability therefor. The action being to recover for an alleged nuisance, it was not necessary, for the plaintiff to allege or show negligence on the part of the defendant or Its grantor in constructing the embankment. The action was not based upon negligence, but upon a wrongful and unauthorized act, in consequence of which the plaintiff, sustained damage. (Clifford v. Dam, 81 N. Y. 52; Lamming v. Galusha et al., 47 N. Y. St. Repr. 831; notes, 25 Abb. N. C. 198, 199.)

The statutory authority conferred upon the defendant or its grantor to construct the bridge and embankment gave it no right to obstruct the flow.of the water in Newtown creek and cause the same to flow back on plaintiff’s lands. (Mundy v. N. Y., L. E. & W. R. R. Co., 75 Hun, 479.) Hence, the complaint, averring such obstruction of the. flow of the water by the bridge and embankment, set forth a wrongful and unauthorized act on the part of the defendant and its grantors — the creating of a nuisance.

The principal question in the case, and the only one 1 deem it necessary to discuss, arises out of certain rulings of the trial court as to evidence offered in regard to the defendant’s responsibility for damage, if any, caused by the embankment in question. The plaintiff read in evidence a deed from Austin Corbin and J. Rodgers Maxwell, under which defendant claimed and which conveyed. “ all the railroad of the. said Utica, Ithaca and Elmira Railway Company' in the State of New York,, extending from Horsekeads in the county of Chemung to Cortland in the county of Cortland in 'the State of New York, and its appurtenances, including the roadbed and superstructure and the right of way of said railroad and all lands, real estate, rails, tracks, side tracks, bridges, viaducts,; buildings, depots, station houses,., car houses, engine houses, shops,, ware houses, turn . tables, water stations, fences, structures, erections,, fixtures and appurtenances and all other things of whatever kind, thereunto' belonging or in any wise appertaining, or which have been or may be acquired or provided by said railroad company for use upon or in connection with the said railroad, and all continuations, branches, tracks or extensions of said railroad, to any depots, ware houses or other structures.” It is impossible to determine from the description whether the deed conveyed the embankment or not. Such a description was sufficient to convey it, if it in fact formerly belonged to the Utica, Ithaca and Elmira Railroad Company, or was acquired or provided by said company for use upon or in connection with said railroad.. (Durant v. Kenyon, 32 Hun, 634.) - It is held that when words of general description are used in a deed oral evidence may be resorted to to locate the premises conveyed. (Coleman v. Manhattan Beach Imp. Co. et al., 94 N. Y..229; The People ex rel. Myers v. Storms, 97 id. 364; Pettit et al. v. Shepard, 32. id. 97.)

One Rickey, a witness called by the defendant, testified that being . in the employ of the Utica, Ithaca and. Elmira Railroad Company, he located the. railroad at the place in question and had charge of its construction. The plaintiff then sought to prove that said- company, through said Rickey, constructed the embankment in question, and made the following offer: “ I propose to show by cross-examination of this witness that this railroad embankment,, running from the bridge in suit all the way to and across the canal, was■ constructed at the same time that the bridge was constructed, under the ■ supervision of this witness, while in tile-employ of the Utica, Ithaca and Elmira R. R. Company the grantors of the defendant in this case. And that the U., I. & E. R. R. Co. surrendered this embankment and line of railroad to the defendant at the same time they surrendered that bridge and the rest of the railroad, and that this defendant has been operating said line or railroad ever since, in connection with its main line.” This evidence and offer was objected to by the defendant, and excluded on the ground that it was incompetent ; that it would not show title or possession in the defendant. Had the evidence offered been received, it might have shown that the embankment in question was constructed by the Utica, Ithaca and Elmira Railroad Company, and provided by said company for use in connection with its railroad, and, hence, embraced within the description contained in said deed, and, therefore, that the defendant was the owner of the embankment. I should, therefore, be inclined to think that the exclusion by the trial court of the evidence and offer above referred to was error, were it not for the following reason: As above suggested, the complaint does not aver any notice to the defendant that the embankment caused damage to the plaintiff, or any request to remove it, nor on the trial was there any evidence of or offer to show such notice or request. The embankment had been constructed many years before by defendant’s grantor. It was not obviously a nuisance. It is held that a grantee of premises upon which there is a nuisance at the time the title passes is not responsible unless he has had notice thereof, and, in some cases, until he has been requested to abate the nuisance. (Ahern v. Steele et al., 115 N. Y. 203, 210.)

In Woodman et al. v. Tufts et al. (9 N. H. 88) it was held that, where a dam was erected, and land flowed by the grantor of an individual, the grantee will not be liable for damage in continuing the dam and flowing the land as before, except on notice of damage, and request to remove the nuisance or withdraw the water.”

In Johnson v. Lewis (13 Conn. 303, 307) it was said in the opinion of the court: “ Therefore, in Tomlin v. Fuller (1 Mod. 27), although the court were unanimously of opinion that an allegation of a request was in that case necessary, and that the declaration, without it, was bad on demurrer; yet, on motion in arrest, they gave judgment for the plaintiff, because the defect was cured by verdict. How far proof of knowledge of the injury resulting from a dam or other' nuisance, made by the defendant, on his own property, may, in any case, be requisite, it is not now necessary to determine; but the law . is well settled that a purchaser of the property on which a nuisance is erected is not liable for its continuance, unless he has been requested to remove it. This rule- is very reasonable.. The purchaser of property might be subjected, to great injustice if he were made responsible for consequences of which, he was ignorant, and'for damages' which he never intended1, to occasion. They are often.' such: ás cannot easily be known¿ except to the party injured. A plaintiff ought not to rest in silence, and finally surprise an unsuspecting .purchaser by an action for damages, but should be presumed to acquiesce until he- requests a removal of the nuisance.” The opinion in Ahern v. Steele et al. (supra) contains an elaborate! review of the Cases bearing on the subject under discussion. (And see, also, Wenzlick v. McCotter, 87.N. Y. 122.) The authorities cited are not in conflict with such' cases as Irvine v. Wood et al. (51 N. Y. 224), which held that one -who occupies and uses premises on which there is a dangerous and obvious nuisance is liable to. any person injured thereby! In this case there Was an embankment across low lands erected many years before by defendant’s grantor.. It was not, obviously, a nuisance. The defendant was authorized, in the • absence of notice, to believe that the embankment Was. lawfully. built, and was not bound to know that it caused damage to the . plaintiff.

There being no averment in the complaint that the defendant had notice that the embankment caused .damage, and no proof on the trial of such notice, it was, of no consequence whether or not the embankment'was the property of the. defendant, and hence the plain- ■ tiff was .riot injured by the ruling of the trial judge above referred to. The plaintiff did, on the trial ¿ offer to show possession and use of the embankment by the defendant, but mere possession or use thereof, it not being obviously a nuisance, and having been erected many years before , by defendant’s grantor, and not having been changed or altered or interfered with by defendant, would, not, in the absence of notice that the embankment caused damage to the plaintiffj .or of a request to. remove if, make the defendant liable. Woodman v. Tufts, Johnson v. Lewis (supra) and Pillsbury v. Moore (44 Maine, 154) were cases where the defendant continued the use of the structures erected by their grantors, claimed to be nuisances, and yet it was held that before an action could be maintained: they were entitled to notice. To the same effect was Plumer v. Harper (3 N. H. 88); Pierson v. Glean (14 N. J. L. 36); Hubbard v. Russell (24 Barb. 404). The above authorities are cited and considered in the opinion of Earl, J., in Ahern v. Steele et al. (supra).

In the absence of notice, and under the circumstances shown in this case, it would be unreasonable and unjust to hold the defendant liable for the alleged nuisance. When it purchased it found a mound or embankment on its premises, placed there many years before by defendant’s grantors, and which, as far as appears, had remained ever since'without objection. As above suggested, it had the right to suppose that the construction of said embankment was authorized, and was not compelled to know that it injured the plaintiff.

For the reasons above suggested, as well.as in consideration of the statement of the plaintiff’s counsel, made when he was offering evidence to sustain his cause of action, viz., “ It is perfectly immaterial, in my view of the case, whether ihis defendant used that or whether it did not use it. That is not the gravamen of the action. The gravamen is that this bridge did not furnish sufficient water way, and, therefore, it turned and run over the plaintiff’s land. If the water had not been turned out of the channel by reason of the narrowness of the bridge' and its insufficiency, the plaintiff would not have been injured,” I think the trial court was justified in holding and in instructing the jury that the defendant was not responsible for damages caused by reason of the. embankment; that the case was to be determined as if the embankment had been a natural hill or elevation.

The plaintiff, in his complaint, did not intend to claim the defendant’s liability for damages caused by the embankment, as he failed to allege a state of facts which woxdd. have made it responsible therefor. The claim, on accountof the embankment, was evidently an afterthought occurring to him after he had rested, and while the defendant was offering its evidence, and when the testimony, proposed could have been properly excluded by the court for the reason that it was offered too late.

I have carefully examined the other exceptions by the appellant. In my opinion,- neither of them require us to reverse-the-judgment and grant a new trial.

The judgment should be affirmed, with costs.

All concurred, except LANDONj, J., dissenting.

Landon, J. (dissenting):

The bridge was an obstruction to the natural flow of the water, because it clogged up the bed-of the stream-with its seven.tiers of piling between the abutments. These piles were a standing notice to the defendant that it was. obstructing the natural flow of the stream. "Whether the old embankment of the railroad was a natu-. ral hill- ór a structure maintained by the defendant, it was a. standing notice to the defendant that when the stream was high .the-more dangerous .its bridge obstructions. Would become. The defendant had no right' to use its property to.the injury of the legal right- of - the plaintiff, and I think it did use it with notice that, it thereby risked doing in jury .to the plaintiff. (See opinion, Moody v. Village Saratoga Springs, post, p. 207.)

I advise reversal;

Judgment and order affirmed, with costs.  