New York Cent. & H.R.R. Co. v. City of Rochester

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 591,28 N.E. 416
• Parties: NEW YORK CENT. & H. R. R. CO. v. CITY OF ROCHESTER et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 591

28 N.E. 416

NEW YORK CENT. & H. R. R. CO.

v.CITY OF ROCHESTER et al.

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal from supreme court, general term, fifth department.

Action by the New York Central & Hudson River Railroad Company against the city of Rochester and another to restrain the city from connecting one of its sewers with another discharging on plaintiff's land. From a judgment affirming a judgment in plaintiff's favor defendants appeal. Modified.

John Van Voorhis, for appellants.

Edward Harris, for respondent.

FOLLETT, C. J.

Prior to 1875 the city of Rochester constructed a sewer extending from East avenue northerly through a street known as ‘Upton Park,’ which received the contents of several sewers lying westerly of and emptying into it. In 1875 the city constructed another sewer, beginning at a point in East avenue 40 feet east of the west line of land then owned by Henry E. Hooker, extending easterly in said avenue about one-half mile, to Culver street; thence northerly, in that street, about 1,500 feet, to the land of the New York Central & Hudson River Railroad Company, where it discharged into an open ditch maintained by the railroad, which ditch passed by a culvert under and to the north of the railroad tracks; thence easterly, along the north side of the tracks, about 80 rods, to Thomas creek, where it discharged. The expense of constructing this sewer, known as ‘East-Avenue Sewer,’ was paid by taxes collected from the property directly benefited by it. No right was acquired by the city to discharge the contents of East-Avenue sewer into the ditch on the lands of the railroad, but the railroad permitted it to be done. In 1880 the city began to construct a sewer for the purpose of uniting the two sewers mentioned, so as to cause the sewage which had theretofore been discharged northerly through Upton-Park sewer to flow through East-Avenue sewer, and be discharged into the ditch of the railroad. This action was begun by the railroad and several persons whose buildings were drained into East-Avenue sewer, to restrain the city from making the connection, and thereby greatly increasing the quantity of sewage flowing in this sewer and ultimately onto the lands of the railroad. The court found that there was no natural right of drainage from this part of the city through the railroad ditch; that no right had been acquired to discharge this additional sewage onto the lands of the railroad; and that when this action was begun the railroad had revoked the license by which it had permitted the contents of East-Avenue sewer, as originally constructed, to be discharged onto its land. It is plain that a city cannot empty its sewers upon private property without acquiring the right so to do, (Noonan v. City of Albany, 79 N. Y. 470,) and it is equally plain that a parol license that the sewage from a particular district may be discharged onto private property does not authorize the discharge of the sewage from a much larger territory upon the property, (Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. Rep. 67.) The trial court so held, and restrained, in behalf of the railroad, but not in behalf of the individual plaintiffs, the city from connecting Upton-Park...