Atwater v. Trs. of Village of Canandaigua

• Decision Date: 21 April 1891
• Citation: 27 N.E. 385,124 N.Y. 602
• Parties: ATWATER v. TRUSTEES OF VILLAGE OF CANANDAIGUA.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 602

27 N.E. 385

ATWATER

v.TRUSTEES OF VILLAGE OF CANANDAIGUA.

Court of Appeals of New York, Second Division.

April 21, 1891.

Appeal from judgment entered upon order of the general term of the supreme court in the fifth judicial department, overruling exceptions ordered heard there in the first instance, denying motion for a new trial, and directing judgment on the verdict in favor of the defendants. The plaintiff alleged that in March, 1888, the defendants wrongfully, negligently, and carelessly erected a coffer-dam in the outlet of Canandaigua lake, at the foot of Main street, in the village of Canandaigua, and maintained it there, by which the water of the lake was backed upon and over his pasture land, causing damage. The defendants, admitting the existence of the dam, put in issue those allegations in other respects, and alleged matter in justification; and it appeared that at the time in question there were two outlets of the lake. One of them, known as the ‘DuBois Outlet,’ may be termed the ‘old one,’ as by the opening of a channel more than 80 years, from the lake to the then existing outlet, it had since continued such, and the other, west of it, known as the ‘Feeder,’ was made by the Ontario Hydraulic Company in 1856, pursuant to authority given by Laws 1855, c. 234, under which the company, having obtained the right of way, made the channel leading from the original outlet a short distance from the lake, and at the point where the original outlet turned to go east. This new channel was made to supply water to mills below, and connected with the old channel one and a half miles from its mouth. Across these outlets, and along near the lake shore, was a highway or street known as ‘Lake Road,’ which, at the foot of Main street, came into the latter. By Laws 1886, c. 658, the defendants, for the purpose of obtaining drainage and sewerage for the village, and to drain and reclaim wet and swamp lands, were empowered to construct a public sewer along the bed of the outlet and the new channel formerly constructed by the hydraulic company, and for that purpose to take and appropriate, in the manner provided, the right to use and occupy such outlet and new channel with such lands as should be necessary to carry out those purposes, but the rights and privileges granted should be so exercised that the waters of the lake should be maintained at a height not less than ordinary low-water mark; and, for the purpose of maintaining the water at proper level, the defendants were authorized to erect and maintain in the outlet and such new channel locks or bulk-heads with gates, etc., to so control and regulate the discharge of the waters of the lake as to company to regulate and control th eflow 1887 the defendants acquired the interest and right formerly had by the hydraulic company to regulate and control the flow of water into and through the new channel or feeder, and the right to occupy its bed for such sewerage and drainage, with the right of way along the banks, etc. In March, 1888, with a view to the construction of a bridge in the highway across this channel, and in combination with it bulk-heads and gates, the defendants caused to be erected a coffer-dam, and thereafter proceeded to construct the bridge in the place of an old one, which was in a dilapidated condition. The coffer-dam remained there until in August, when the use for it in the construction of the bridge was accomplished, and the dam was removed. The cause of the plaintiffs' complaint is that the effect of the dam was to hold back the water of the lake, and cause it to remain on his low pasture land situated up the lake a quarter of a mile distant from the dam. The court directed a verdict for the defendants.

William H. Smith, for appellant.

Thomas H. Bennett, for respondents.

BRADLEY, J., ( after stating the facts as above.)

It was within the power of the defendants to construct the bridge and bulk-heads with gates at the place where the work was located and performed. The trustees of the village of Canandaigua were commissioners of highways in and for the village, having the powers of such commissioners, (Laws 1854, c. 352, § 1,) and in the construction of the bridge they were proceeding pursuant to authority and in the performance of their duty. The coffer-dam placed in the channel was necessary to the construction of the bridge. It had the effect to stop the flow of water form the lake through the channel known as the ‘Feeder,’ and the only outlet for it during the time the dam remained there was through the Du Bois channel. There was evidence tending to prove that from the time of the removal or opening, in February, 1888, of the Chapinville dam (located about four miles from the lake) the Du Bois outlet had the capacity to take from the lake, and did carry off, as much water or more than previously flowed through both channels. This fact was controverted, and the conclusion was warranted that the coffer-dam had the effect to obstruct the discharge to some extent of the quantity of water, when high in the lake, which the two channels had been accustomed to carry off before the removal of the dam, and that the continuance of water on the plaintiff's land longer than it otherwise would have remained there was attributable to the coffer-dam. While the water was no higher, and covered no more of this land, that spring than it had years before, and was not so high as in the spring of 1887, it remained on the plaintiff's pasture field longer; and it was the continuance of it there which impaired the usefulness of the land and substantially deprived him of the beneficial use of it that season. The question, therefore, is whether or not the alleged justification is a defense against liability of the defendants for injury suffered by the plaintiff. The hydraulic company took by statute (Laws 1855, c. 234) the right to maintain bulk-heads and gates in the channel subject to ‘liability for all damages occasioned thereby actually sustained by any person whatsoever.’ The mere acquirement of the rights of that company afforded no means of protection of the defendants against liability for injury occasioned by the use of the privileges to which they succeeded. Nor can they be relieved unless their rights were superior to those of persons engaged in work private in character. The doctrine, however, is well established in this state that public...