86 N.Y. 140, Barkley v. Wilcox

Citation:86 N.Y. 140
Party Name:ALFRED BARKLEY, Appellant, v. NELSON WILCOX, Respondent.
Case Date:October 04, 1881
Court:New York Court of Appeals

Page 140

86 N.Y. 140

ALFRED BARKLEY, Appellant,

v.

NELSON WILCOX, Respondent.

New York Court of Appeal

October 4, 1881

Argued May 6, 1881.

Page 141

COUNSEL

C. E. Cuddeback for appellant. The decision of the referee, which is here conclusive as to the fact, is really and substantially that a water-course exists, and has existed from time immemorial. (Earl v. De Hart, 1 Beasl. 280; Angell on Water-courses, 130; Washburn on Easements and Servitudes, 284.) A land-owner cannot at his will impose an increased burden of surface water upon his neighbor, to such an extent as to virtually appropriate his premises. (Noonan v. City of Albany, 79 N.Y. 475; Byrnes v. City of Cohoes, 67 Id. 204; Inman v. Tripp,

Page 142

11 R. I. 520; Haskell v. City of New Bedford, 108 Mass. 208; Att'y-Gen. v. Leeds Corporation, L. R., 5 Ch. App. Cas. 585; Jutte v. Hughes, 67 N.Y. 268, 272; Bastable v. City of Syracuse, 72 Id. 64; Ogburn v. Connor, 40 Cal. 346; Foot v. Bronson, 4 Lans. 51; Bellows v. Sackett, 15 Barb. 96; Martin v. Riddle, 26 Penn. St. 415, note; Kaufman v. Griesemer, Id. 407; Butler v. Peck, 16 Ohio St. 334; Corpus Juris Civilis, book 39, titles 3, 4; Martin v. Jett, 12 La. 50, citing Code Louisiana, art. 756; Code Napoleon, art. 640; Livingston v. McDonald, 21 Iowa, 160; Gormley v. Sanford, 52 Ill. 158; Gilham v. Madison R. R. Co., 49 Ill. 484; Laumier v. Francis, 23 Mo. 181; Delahoussaye v. Judice, 13 La. Ann. 587; Hays v. Hays, 19 La. 351; Barrett v. Salisbury Mfg. Co., 43 N.H. 569; Beard v. Murphy, 37 Vt. 99; Dickinson v. Worcester, 7 Allen, 19, 22; Nevins v. Peoria, 44 Ill. 502; Miller v. Laubach, 47 Penn. St. 154; Inman v. Tripp, 11 R. I. 520; City of Aurora v. Gillett, 56 Ill. 132; Pettigrew v. Evansville, 25 Wis. 223; Ashley v. City of Port Huron, 15 A. L. J. 814.) Even if these lots were in a city or incorporated village, the rules of law would not thereby be changed. Rights of property are as sacred there as elsewhere, and equally protected by the courts. (Earl v. De Hart, 1 Beas. 260; Jutte v. Hughes, 67 N.Y. 267; Bellows v. Sackett, 15 Barb. 96; Gormley v. Sanford, 52 Ill. 158.)

J. M. Allerton for respondent. The defendant had a legal right to improve his land by filling up the low spots. (Waffle v. N.Y. C. R. R. Co., 58 Barb. 413; 53 N.Y. 11.) The obstruction of surface water, or an alteration in the flow of it, affords no cause of action in behalf of a person who may suffer loss or detriment therefrom, against one who does not act inconsistent with the due exercise of dominion over his own soil. (Gannon v. Hagadorn, 10 Allen, 106; Angell on Water-courses, 108; Wagner v. The Long Island R. R. Co., 5 T. & C. 163; Dickinson v. City of Worcester, 7 Allen, 19; Sweet v. Cutts, 50 N.H. 439; Goodale v. Tuttle, 29 N.Y. 459; Branstron v. Taylor, 11 Ex. 369; Phelps v. Nolan, 72 N.Y. 39;

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Vanderweile v. Taylor, 65 Id. 341; Radcliff, Executor, v. Mayor of Brooklyn, 4 Id. 195; Lynch v. Mayor, etc., 76 Id. 60.)

ANDREWS, J.

This is not the case of a natural water-course. A natural water-course, is a natural stream, flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a water-course, that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural water-course, because in times of drought, the flow may be diminished, or temporarily suspended. It is sufficient if it is usually a stream of running water. (Angell on Water-courses, § 4; Luther v. The Winnisimmet Co., 9 Cush. 171.)

The parties in this case own adjacent lots on a street near a village, but not within the corporate limits. The findings are, that the natural formation of the land was such, that surface water from rains and melting snows, would descend from different directions, and accumulate in the street in front of the...

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