Brewster v. J.&J. Rogers Co.

• Decision Date: 10 December 1901
• Court: New York Court of Appeals Court of Appeals
• Parties: BREWSTER v. J. & J. ROGERS CO.

169 N.Y. 73

62 N.E. 164

BREWSTER

v.J. & J. ROGERS CO.

Court of Appeals of New York.

Dec. 10, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Bryon R. Brewster against the J. & J. Rogers Company to recover damages for the overflowing of a water course. From a judgment in favor of plaintiff, affirmed by the appellate division (59 N. Y. Supp. 32), defendant appeals. Affirmed.

Richard Lockhard Hand, for appellant.

Francis A. Smith, for respondent.

CULLEN, J.

The plaintiff was the owner of two farms in the county of Essex, through which ran the west branch of the Ausable river, on which river he owned and maintained a dam and a sawmill. Further up the river the defendant owned large tracts of timber land. The complaint alleged that in the years 1896, 1897, and 1898 the defendant floated a great number of logs down said stream; that for the purpose of floating said logs the defendant accumulated great quantities of water behind dams erected by it on tributaries to said stream, and from time to time discharged into it the water so accumulated in great volume, far beyond the natural flow of the river, causing the river to overflow its banks, injuring both the plaintiff's dam and his adjacent uplands. The plaintiff asked judgment for his damages and for an injunction restraining the defendant from continuing its operations on the stream. The defendant answered, denying the injuries alleged in the complaint, and averring that the west branch of the Ausable river was, and for years had been, a public highway for the purpose of floating logs, timber, and lumber. The answer also set forth that the defendant had duly executed and filed a bond with sureties in the sum of $5,000 as indemnity against all damages that might be caused to any property by its use of said river as a highway; that the damages sustained by the plaintiff had not been ascertained or appraised by commissioners, as required by the statute; and that the plaintiff's cause of action had not accrued within one year. The trial court found that the defendant had stored water, and then discharged it into the stream, as alleged in the complaint, increasing the natural volume and flow of the river, whereby the plaintiff's mill and farms were damaged to the amount of $500. The court held that the defendant had the right to run the logs through the stream, as the latter was a public highway for such purpose, but that it had not the right to increase the natural flow of the stream to the substantial injury of the plaintiff's premises; that the statutory remedy for appraisal of damages was not exclusive, and did not destroy the plaintiff's right of action. On this decision judgment was rendered for the damages it was found that the plaintiff had sustained, but no injunction was granted. The judgment has been affirmed by the appellate division, and the defendant now appeals to this court.

The Ausable river was, by chapter 363 of the Laws of 1893, constituted and declared to be a public highway. This act did not provide for compensation to the owners of the bed of the stream. But at the time there was a general statute (chapter 533, Laws 1880) which authorized and regulated the use of rivers recognized by law or use as public highways, and provided for compensation to the owners of property damaged by such use. The learned appellate division was of opinion that this statute was not broad enough to provide for compensation to the owner of the bed of the stream. We do not think it necessary to pass upon that question, as the trial court found that as a matter of fact the stream was a highway for running logs, which it would be if, in its natural state, it was capable of transporting logs or rafts. Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58; Gould, Waters, §§ 53, 54, 107. But, though a highway, no one would have the right to store water, and then suddenly discharge the accumulation, so as to increase the natural volume of the stream and overflow or wash away the adjacent banks. Noonan v. City of Albany, 79 N. Y. 470, 35 Am. Rep. 540; McCormick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479. The erosion of the banks would be in the nature of a trespass on the property rights of the owner of the soil, and for such trespass (or private nuisance, if not technically a trespass) the plaintiff would unquestionably be entitled to maintain this action unless, as contended by the counsel for the appellant, he is precluded therefrom by the statute of 1880, referred to, or by the navigation law (Laws 1897, c. 592, art. 5). These statutes are substantially alike, and it will be necessary to refer in detail to the provisions of that of 1880 alone. Section 3, as amended by chapter 483 of the Laws of 1897, authorizes any person desirous of floating or running lumber, logs, or other timber down any river recognized by law or use as a public highway to construct a chute or apron in any dam across it, to reconstruct any booms or other works already constructed in the river, and to ‘construct such other piers, booms or other works as may be necessary for the passage of lumber, logs or other timber over and through the channels of said rivers, doing no injury or damage to the owner or occupant of such boom, dam or other works, or to the owner or occupant of any land on which such piers, booms, dams or other works may be constructed, or lands flooded thereby, and paying to such owner or occupant such damages as he or they may sustain by reason of the construction of such piers, booms or other works, or the flooding of lands thereby, and paying also all damages and loss that may be occasioned or done to any and all property, public or private, in or upon said river or its banks, by reason of the floating of logs or lumber, or by reason of the removal of obstructions in the floatable channel of said river, and in case the amount of such damage cannot be amicably arranged by the parties interested, the same shall be appraised by three commissioners, to be appointed by the supreme court of the judicial district wherein the property is situated, on the application of any person interested in the appraisal of such damage, on three days' notice, in writing, to the opposite parties of the time and place of making such application. * * * The intent of this statute being to provide compensation to the riparian owner in all cases where rivers and streams have been declared to be public highways for the purpose of floating logs where no compensation has been provided therein to the riparian owners, and to those having vested rights upon said streams and rivers.’ Section 5 provides that any person making claim for damage arising under the statute shall apply within one year after the occurrence of the same, or be debarred from recovering the same. Section 10 requires any person intending to float or run lumber on any river to first execute and file a bond to the people, with sufficient sureties, in the sum of $5,000, to be approved by the county judge in the county or counties in or through which the river or rivers proposed to be used flow, and that any person suffering loss or damage may maintain an action in his own name against the parties executing the bond. The claim of the learned counsel for the appellant is that the remedy given by the statute to the injured property owners is exclusive, and that the plaintiff was required to apply for an assessment of his damages before the commissioners, appointed as prescribed by the statute, within one year from the time of their occurrence, or be precluded from any recovery. The general rule is that, if a new right be given by statute, and a remedy for the invasion thereof be prescribed, the statutory remedy is exclusive; but, if there be an existing right and a common-law right of action for its violation, then the statutory remedy is only additional or cumulative. Crittenden v. Wilson, 5 Cow. 165, 15 Am. Dec. 462;Dudley v. Mayhew, 3 N. Y. 9;McKee v. Canal Co., 125 N. Y. 353, 26 N. E. 305,21 Am. St. Rep. 740;Reining v. Railway Co., 128 N. Y. 157, 28 N. E. 640,14 L. R. A. 133. In cases such as the one before us this is necessarily the rule. The plaintiff's property rights had been violated. The legislature could not deprive him of the right to recover damages for such violation, and his claim for damages could not be made the subject of condemnation proceedings. In re Townsend, 39 N. Y. 171. The only theory on which the plaintiff's recovery can be successfully assailed is that the acts for which the defendant is sued were done in the exercise of the power of eminent domain granted by the state. If, under the provisions of the statute of 1880, the property...