Bowman v. Town of Chenango

• Decision Date: 06 January 1920
• Citation: 227 N.Y. 459,125 N.E. 809
• Parties: BOWMAN v. TOWN OF CHENANGO.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 459

125 N.E. 809

BOWMAN

v.TOWN OF CHENANGO.

Court of Appeals of New York.

Jan. 6, 1920.

Action by Nancy H. Bowman against the Town of Chenango. From judgment of Appellate Division (184 App. Div. 472,171 N. Y. Supp. 1079) affirming a judgment of Special Term (168 N. Y. Supp. 1030) sustaining a demurrer to complaint and dismissing complaint, plaintiff appeals.

Judgments reversed, and demurrer overruled, with leave to answer.

Appeal from Supreme Court, Appellate Division, Third Department.

Thomas B. Merchant, of Binghamton, for appellant.

Frederick W. Welsh, of Binghamton, for respondent.

POUND, J.

Plaintiff's complaint alleges, in substance, that a steel and concrete culvert over a small dry creek flowing in times of freshet was so negligently constructed and maintained across a highway by the defendant's town superintendent of highways, in place of an adequate old wooden culvert, that on two occasions when rainstorms occurred it was inadequate to care for the water which flowed down the creek, causing it to back up and overflow upon plaintiff's land, thus damaging her property. Does it state a cause of action?

[1][2] ‘The common law of this state gives a right of action against commissioners of highways who act contrary to or omit to act in accordance with their duty to a person injured thereby, and this right of action it is which the statute (Laws 1881, c. 700, now section 74 of the Highway Law) made maintainable against the town.’ Flansburg v. Town of Elbridge, 205 N. Y. 423, 428,98 N. E. 750,41 L. R. A. (N. S.) 546.

The town superintendent of highways shall, among other duties imposed on him in relation to the care and superintendence of highways, ‘construct and keep in repair sluices and culverts and cause the waterways, bridges and culverts to be kept open.’ Highway Law (Consol. Laws, c. 25) § 47, subd. 5.

The question is whether the damages alleged are, in the language of the statute, sustained ‘by reason of any defect in (defendant's) highways or bridges, existing because of the neglect of any town superintendent of such town.’ Highway Law, § 74; Lynch v. Town of Rhinebeck, 210 N. Y. 101, 103 N. E. 888. That the culvert is a part of the highway and a defect in the culvert is a defect in the highway is manifest.

Defendant contends that the commissioner (now superintendent) of highways was not liable at common law for damages to property due to acts done in the performance of his duty, of the character set forth in the complaint, and that therefore the town is not liable.

[3] Prior to the adoption of the statute of 1881 above referred to, the towns were not liable for damages to persons or property caused by defective highways. The commissioners of highways were personally responsible for the negligent or wrongful performance of their duty. Their liability was carefully and wisely guarded. They did not neglect their duty to make repairs when funds were not provided for the purpose (Garlinghouse v. Jacobs, 29 N. Y. 297), nor, when doing what they had a legal right to do, they failed to exercise the best judgment or omitted to perform an act which would be neighborly, such as properly taking care of mere surface water so that it would not back up on the lands of an abutting owner. Gould v. Booth, 66 N. Y. 62. But this court has neyer held that a commissioner of highways, in the exercise of lawful dominion over the highways, might unlawfully cast water upon another's land. If the commissioner, in the course of highway construction, wrongfully cast material on the lands of another, he was hedged by no divinity. It has been said (Gould v. Booth, supra) that he might lawfully interfere with the natural flow of water from rain and snow upon the surface of the land. It follows not that he might turn upon the lands of another the water which previously flowed across the highway in a natural channel. For such water he is bound to provide a sufficient outlet. Barkley v. Wilcox, 86 N. Y. 140, 144,40 Am. Rep. 519;Hill v. Boston, 122 Mass. 344, 358,23 Am. Rep. 332.The complaint alleges a negligent obstruction by defendant's superintendent of highways of the natural channel of the water by the insufficiency of the culvert, by means of which the water was thrown upon plaintiff's property to her injury, and thus sufficiently charges an unlawful act of the superintendent.

The contention that the commissioner might, in the construction or maintenance of highways, damage property with impunity if he did not interfere with travel along the surface of the highway, has no foundation in any reported case and never was the law. In Whitney v. Town of Ticonderoga, 127 N. Y. 40, 27 N. E. 403, the action was under the statute, and the court was dealing...