Chapman v. City of Rochester

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 273,18 N.E. 88
• Parties: CHAPMAN v. CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 273

18 N.E. 88

CHAPMAN

v.CITY OF ROCHESTER.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from a judgment of the general term of the supreme court, Fifth department, affirming a judgment at special term, awarding the plaintiff $1,200 damages for present injury, and an injunction to restrain the continuance of the nuisance complained of. The facts appear in the opinion.

Mr. Sullivan, for appellant.

Mr. Stull, for respondent.

DANFORTH, J.

The plaintiff was the owner and occupant of certain premises, containing more than four acres of land, in the town of Brighton, adjoining the city of Rochester, and watered by a stream known as ‘Thomas Creek,’ which, rising in that city and fed by springs of pure water, ran northwardly, and across the plaintiff's premises, into Irondequoit bay. He collected its water into an artificial basin, making it serve as well for domestic uses as the propagation of fish, and from it in due season he also procured a supply of ice. The defendant thereafter constructed sewers, and through them discharged not only surface water, but the ‘sewage from houses, and the contents of a large number of water-closets,’ into Thomas creek, above the plaintiff's land, with such effect as to render its water unfit or use, and cover its banks with filthy and unwholesome sediment. These and other facts well warranted the conclusion of the trial court that the act of the defendant, in thus emptying its sewers, constituted an offensive and dangerous nuisance. Moreover, the plaintiff is found to have sustained a special injury to his health and property from the same cause; and we find no reason to doubt that he is entitled, not only to compensation for damages thereby occasioned, but also to such a judgment as will prevent the further perpetration of the wrong complained of. Goldsmid v. Commissioners, L. R. 1 Eq. 161, L. R. 1 Ch. 349. In view of the principle upon which these and like decisions turn, the objections of the learned counsel for the defendant, against the judgment appealed from, are quite unimportant. The filth of the city does not flow naturally to the lands of the plaintiff, as surface water finds its level, but is carried thither by artificial arrangements prepared by the city, and for which it is responsible. Nor is the plaintiff estopped by acquiescence in the proceedings of the city in devising and carrying out its system of sewerage. The principle invoked by the appellant has no application. It...