Wycklyn v. City of Brooklyn

• Decision Date: 25 February 1890
• Citation: 24 N.E. 179,118 N.Y. 424
• Parties: VAN WYCKLYN v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 424

24 N.E. 179

VAN WYCKLYN

v.CITY OF BROOKLYN. ^*1

Court of Appeals of New York,

Second Division.

Feb. 25, 1890.

Appeal from supreme court, general term, second department.

Action by Jacob D. Van Wycklyn against the city of Brooklyn. A judgment in favor of plaintiff, entered upon a verdict of a jury, was reversed at general term. From the order of reversal plaintiff appeals.

FOLLETT, C. J., and POTTER and HAIGHT, JJ., dissenting.

William C. De Witt, for appellant.

Almet F. Jenks, for respondent.

BROWN, J.

The plaintiff brought this action to recover damages which he claimed to have sustained from the diversion by the defendant of the waters of a stream called ‘Spring Creek,’ and there was a verdict in his favor at the circuit. The judgment entered on such verdict was reversed by the general term, and the order of reversal states that the facts were not before that court for review, and its decision was upon the law only. The legal questions arising in this case are therefore properly before this court. Pharis v. Gere, 112 N. Y. 408, 20 N. E. Rep. 551.

The plaintiff was the owner of a gristmill situated near the junction of Spring creek with Jamaica bay, and he derived the power to drive the machinery of his mill from the flow of the tide of the bay and the flow of the waters of the creek. The defendant, pursuant to a statute of the state, had acquired title to a strip of land upon the banks of the creek, about two miles above the plaintiff's mill, and upon such strip of ground had constructed 100 driven wells, from which it pumped water for the supply of the city. The nearest well to the creek was distant therefrom about 200 feet, and the others were located at varying distances, up to about 600 or 700 feet therefrom. It was the claim of the plaintiff that these wells drained the water from the creek, and arrested the same in running to the mill, thus diverting the living stream, and impairing and injuring his water-power; and there appears to have been a concession at the trial, and the same is made in this court, that if, in sinking the wells on its own land, the city did no more than intercept the percolation of under-ground currents, and thereby prevented such water from running through the soil and reaching the stream, the action would not lie; and such is the law applicable to the case. Chasemore v. Richards, 7 H. L. Cas. 349; Village of Delhi v. Youmans, 45 N. Y. 362, and cases cited.

The question in issue therefore was, did the defendant, by their wells and machinery, draw the water out of the creek after it became an open running stream on the surface of the earth? At the close of the plaintiff's case there was a motion by the defendant to dismiss the complaint ‘upon the ground that the evidence disclosed no liability on the part of the city,’ which motion was denied; the court holding that the evidence presented a question of fact for the consideration of the jury. We do not understand the learned counsel for the city to claim that there was any error in the denial of this motion, and it was not made a ground of reversal at the general term. It is sufficient for us to say, therefore, that we think the evidence was of a character to permit the conclusion drawn by the jury, and it would have been error for the court to have withdrawn the case from their consideration. The jury having determined the facts in favor of the plaintiff's contention, the judgment must stand, unless there were errors committed in the conduct of the trial.

The defendant called as a witness one William D. Andrews, who testified that his business was making and drilling wells, and supplying water for cities and villages, and that he had constructed the wells in question. He described the manner of their construction, and stated that they drew water from a depth below the surface ranging from 35 to 60 feet, and that the depth of the wells varied, for the purpose of ‘getting the benefit of the water in different water-bearing strata.’ He was then asked the following question: ‘Was it possible for you to take in those pipes any water out of Spring creek?’ This was objected to as ‘opinionative,’ and excluded, to which ruling of the court the defendant excepted. The judgment was reversed by the general term, on the ground that this question should have been admitted, and the propriety of the ruling of the trial court in its exclusion is the main question presented on this appeal.

While we recognize fully the difficulty at times of deciding whether the case presented is one in which expert or opinion evidence is admissible, the majority of this court is of the opinion that the ruling of the trial judge in this case was correct. Within the general rule that witnesses who are skilled in science and art, and those who from experience and special study have peculiar knowledge upon the subject of inquiry which jurors have not, may testify, not only to facts, but may also give their opinions as experts, the decisions of the courts have given a wide range to expert evidence. No rule, however, can be made so precise as to include all cases, and each question, as it arises, must be determined by the application of general principles to the particular inquiry involved in the case before the court. While it is no longer a valid objection to the expression of an opinion by a witness that it is upon the precise question which the jury are to determine, (Transportation Line v. Hope, 95 U. S. 297;Bellinger v. Railroad Co., 23 N. Y. 42;Cornish v. Insurance Co., 74 N. Y. 296,) evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable, (Ferguson v. Hubbell, 97 N. Y. 507; Schwander v. Birge, 46 Hun, 66; 1 Greenl. Ev. § 440, and notes.) Familiar examples of the admission of evidence of this character are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting. Within the same principle, the question whether a vessel was unseaworthy was held admissible, because it involved the result of an examination which could not be fully communicated to a jury. Baird v. Daly, 68 N. Y. 547.It was also held competent to ask a pilot ‘whether it would be safe for a tug-boat on Chesapeake bay, or any other wide water, to tug three boats abreast, with a high wind,’ (Transportation Line v. Hope, 95 U. S. 297;) to ask of an engineer, familiar with the locality and structure, whether an embankment and bridges were skillfully constructed with reference to the creek, (Bellinger v. Railroad Co., 23 N. Y. 42;) and evidence of like character has been admitted on the question of negligence in mooring a vessel, (Moore v. Westervelt, 9 Bosw. 558;) on the necessity of jettison, (Price v. Hartshorn, 44 N. Y. 94;) and on questions involving nautical skill, (Walsh v. Insurance Co., 32 N. Y. 427.) Opinions were held admissible in the cases cited, for the reason that the controlling issue in the case involved questions of skill and experience, which the witness' practical knowledge enabled him to speak upon, and because the facts which impressed the mind of the witness could not be placed before the jury, and no better evidence was available.

The rule is well stated by Justice BRADLEY in Schwander v. Birge, supra, as follows: ‘The governing rule deduced from the cases permitting the opinions of witnesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts, and therefore cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it.’ To the same effect it was said by Judge EARL in Ferguson v. Hubbell, supra: ‘Opinions are also allowed * * * where * * * the facts cannot be adequately placed before the jury so as to impress their minds as they impress the minds of a competent skilled observer. * * * Where the facts can be placed before a jury, and they are of such a nature that juries generally are just as competent to form opinions in reference to them, and draw inferences from them, as witnesses, then there is no occasion to resort to expert or opinion evidence.’ The question which the jury in this case was to decide was not one of science, and the inquiry vital to the admissibility of the evidence offered was, could the facts bearing on the question of the disappearance of the waters of the creek be placed before the jury, and were they of such a nature that the jurors could comprehend them, and intelligently draw inferences from them? There was nothing in the case, as developed by the plaintiff, that made opinion evidence admissible. To sustain his theory that the subsidence of the waters in the creek was caused by the pumping from the wells, he had given evidence that the stream was made up largely of surface drainage, and not from under-ground currents; that it had never, prior to 1883, dried up; that immediately following the commencement of the pumping from the wells the creek dried up at a point nearest the wells, while the water further up the stream, and in its tribu taries, continued to flow. He further showed generally the character of the surrounding soil, and that, as the pumping continued and exhausted the water near the wells, the water disappeared further up the stream, until its flow was substantially destroyed. The evidence of Andrews, given prior to being asked the question under consideration, added no new facts to the case. The question put to him, in substance, called for his opinion upon the facts proven. In other words, he was asked to draw inferences and form conclusions which belonged exclusively to the province of the jury.

Whether or not the disappearance of the creek was...