Cashin v. City of New Rochelle

• Citation: 256 N.Y. 190,176 N.E. 138
• Parties: CASHIN v. CITY OF NEW ROCHELLE.
• Decision Date: 12 May 1931
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 190

176 N.E. 138

CASHIN

v.CITY OF NEW ROCHELLE.

Court of Appeals of New York.

May 12, 1931.

Action by Josie G. Cashin against the City of New Rochelle. From a judgment of the Appellate Division, Second Department (231 App. Div. 734, 245 N. Y. S. 746), affirming a judgment of the Special Term, in favor of the plaintiff, defendant appeals.

Reversed, and a new trial granted as to the first cause of action, and the complaint dismissed as to the second cause of action.

Appeal from Supreme Court, Appellate Division, Second Department.

Patrick J. Rooney, Corp. Counsel, of New Rochelle, for appellant.

Albert Ritchie, of New Rochelle, for respondent.

POUND, J.

The complaint herein states two causes of action, one for an injunction and damages for the discharge on plaintiff's premises of surface waters collected in a single channel, and thereby, as is alleged, cast in a substantially increased volume on such premises; another to require the defendant to remove a ridge or mound of earth left across plaintiff's premises after the construction of a sewer on a right of way over such premises granted by the then owner thereof in the year 1894 or to pay damages. The plaintiff's recovery is for the sum of $55,500 damages, being $15,000 for damages to rental value for six years prior to the commencement of this action; $28,500 for damages to fee value due to overflowing of lands; and $12,000 damages to fee value due to the ridge left on the premises after the construction of the sewer.

Burling brook is an old natural water course running through plaintiff's property, carrying off surface waters from the neighborhood watershed. Plaintiff's property is a parcel of low, vacant land which has a frontage on Weyman avenue in the city of New Rochelle of 481 feet. It slopes from both sides towards the brook, which is the lowest point thereof. It is described as a small farm or vegetable garden of 8.6 acres, and is leased for such purposes for $300 a year, but its prospective value for industrial and business purposes is large. It is zoned for such purposes, and the city's witnesses value it at $125,000.

The evidence justifies the conclusion that in or about the year 1921 the city constructed artificial channels which collected surface waters and discharged the same into Burling brook where they would naturally go. It is contended that the force and volume, if not the quantity, of water was thereby substantially increased, independently of the increased flow of surface water caused by city improvements such as the paving of streets and building of houses or by heavy rains, and that plaintiff has sustained damages by reason of such increased force and volume, for which the city is liable. Fox v. City of New Rochelle, 240 N. Y. 109, 112, 147 N. E. 544. The Fox Case, it will be noted, came up on an appeal from a unanimous affirmance under the Constitution of 1894, before the Judiciary article (article 6) was amended in 1925, and the only questions before the court were those considered in the opinion.

The mere facts that the city has collected surface waters in a single channel and that the brook has at times overflowed its banks are not sufficient to impose liability on the city. The relation of cause and effect must be established. The burden is on the plaintiff to establish that the flooding was caused by the construction of artificial channels rather than by unprecedentedly heavy rains. North Dakota v. Minnesota, 263 U. S. 365, 44 S. Ct. 138, 68 L. Ed. 342. The respondent concedes in her brief that the flooding occurs only during heavy rains. The tenant of the premises testifies that there has been no change in the condition in that respect since he began to cultivate the land in 1920. While this may be regarded as a question of fact, as other witnesses testify to substantially increased overflowing in 1927 ‘on account of the big flood,’ there is no evidence of any substantial overflow of plaintiff's lands, except intermittently and occasionally in times of heavy rains, which is attributable to the construction of the city drain, independent of natural causes.

We held in the Fox Case, supra, that it was error to limit the amount of surface water to be discharged into Burling brook to the amount as it existed at any prior date, and that the city is not liable for the natural flow of surface water. As the city cannot be compelled to construct drains for the disposal of surface water, however injurious the result may be to the owner of land through which a natural water course runs, we must scrutinize the proof on which rests the substantial award of damages herein in order to separate the right from the wrong.

In so doing, we are led to the following conclusions: The evidence indicates no permanent condition of overflowing, but only recurring single instances in time of heavy rains, giving rise to a separate and complete cause of action, if any, in favor of plaintiff each time her lands are wrongfully flooded. Meruk v. City of New York, 223 N. Y. 271, 274, 276,119 N. E. 571. The award of damages for conditions of a permanent character was not warranted.

But, if we proceed on the theory that the plaintiff's injuries are of a permanent character, she is not materially benefited. Let us consider:

First, evidence of rental value. The proof on this point seems altogether theoretical, vague, and speculative. How has the overflow attributable to the drain alone affected rental value? What would be the rental value of the premises without such additional overflow? What is the rental value of the premises with it? Such is the true measure of damages. Witnesses base their estimate on 10 per cent. of the...