Allerton v. New York, L.&W. Ry. Co.

• Decision Date: 15 November 1910
• Citation: 199 N.Y. 489,93 N.E. 270
• Court: New York Court of Appeals Court of Appeals
• Parties: ALLERTON v. NEW YORK, L. & W. RY. CO.

199 N.Y. 489

93 N.E. 270

ALLERTON

v.NEW YORK, L. & W. RY. CO.

Court of Appeals of New York.

Nov. 15, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by D. Dudley Allerton against the New York, Lackawanna & Western Railway Company. From a judgment for plaintiff unanimously affirmed by the Appellate Division (132 App. Div. 943,117 N. Y. Supp. 1128), defendant appeals. Reversed and dismissed.

Halsey Sayles, for appellant.

William H. Nichols, for respondent.

WERNER, J.

The plaintiff is the owner of about 40 acres of land, bounded in part by the Conhocton river, in the town of Bath, Steuben county. He complains that the defendant has wrongfully and unlawfully changed and diverted the channel of that river from its former natural course, so as to precipitate upon plaintiff's land large quantities of flood water, débris, and earth, which have torn up, washed out, and flooded his surface soil to his very substantial damage. The defendant has met this complaint (1) with a general denial, (2) with the defense that the plaintiff's damage was occasioned by extraordinary and unprecedented floods which occurred from natural causes over which the defendant had no control, and (3) with the allegation that the defendant acquired from the plaintiff's predecessor in title a grant in the nature of a perpetual easement, under which the defendant had the right to so change and deflect the course of the river as to flood the plaintiff's lands, if that should be the necessary result of a careful, skillful, and proper construction of its railroad and the works incident thereto. That is, in substance, the controversy as outlined in the pleadings and characterized by the evidence.

The trial court took the view that the deed under which the defendant seeks to justify its alleged trespass was not broad enough to convey any easement or interest in the 40 acres described in the complaint, and charged the jury, as matter of law, ‘that any attempted release of damages, or any actual release of damages as stated in that deed, would not be a covenant running with this 40 acres which would be effectual as against a subsequent purchaser.’ Under this charge, to which an exception was duly taken, the case was submitted to the jury upon the issue whether the injury to the plaintiff's land had been occasioned by any act of the plaintiff, or whether it was due wholly to the so-called wrongful and unlawful acts of the defendant. The jury gave a verdict for the plaintiff. From the judgment entered upon that verdict an appeal was taken to the Appellate Division, where there was a unanimous affirmance. As we have not been favored with an opinion setting forth the reasons for the affirmance, we must assume that the Appellate Division assented to the correctness of the trial court's construction of the deed referred to, and that view of the case presents the question which this court is asked to decide upon defendant's appeal. It is essential to an understanding of this question that the salient parts of the deed and the circumstances surrounding its execution should be briefly stated.

In 1881 the defendant was preparing to build its railroad through the town of Bath over a route which embraced a portion of the lands owned by one Hewlett, consisting of a mill and water power on the southerly side of the Conhocton river. At this point there was a sweeping curve in the natural channel of the stream which intersected the proposed line of the railroad in two different places, and would apparently have necessitated the building of two bridges unless the stream should be deflected into a new channel confined wholly to the northerly side of the railroad. When the railroad was afterward built in 1882, the channel of the stream was in fact deflected so as to carry it along the northerly side of the railroad. In 1881 Hewlett was also the owner of 40 acres of land on the opposite side of the river and about a quarter of a mile distant from the mill site above referred to. The defendant, for the purpose of securing such rights as were deemed necessary to enable it to construct its railroad according to the plan shown in the map filed, took a deed from Hewlett for a substantial consideration, which conveyed ‘all that certain piece or parcel of land situate in the town of Bath, in the county of Steuben, and state of New York, bounded and described as follows, to wit: All lands in said town taken or in any manner used or affected by the construction and operation of the railway now being constructed by the party of the second part, the lines of which are shown on a map of the location of said railway now on file in Steuben county, N. Y., together with all my rights to enter on any such land for purpose of repairing or constructing any water rights, also all water rights and privileges owned, held or enjoyed by the party of the first part or either of them in or to the waters of the Conhocton river, and all rights in or to any dams therein, and rights to maintain, change or remove the same, and all rights to use, alter or deepen the...