Colrick v. Swinburne

• Decision Date: 03 May 1887
• Citation: 12 N.E. 427,105 N.Y. 503
• Parties: COLRICK, Adm'x, etc., v. SWINBURNE and another, Adm'rs, etc.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 503

12 N.E. 427

COLRICK, Adm'x, etc.,

v.SWINBURNE and another, Adm'rs, etc.¹

Court of Appeals of New York.

May 3, 1887.

Appeal from general term supreme court, Fourth department.

Action brought in May, 1881, for damages.

Plaintiff Colrick's intestate, in 1868, purchased a tannery which was erected in 1810 on a small stream of water which ran from a living spring about 20 rods distant. Premises had always been used for tanning purposes, and were so used by plaintiff's intestate after his purchase. After purchase of tannery by plaintiff's intestate, R. G. Swinburne bought the land on which the spring was located, and in the fall of 1871 he boxed the spring up and packed the box with clay, so no water could run out. He then put in a pipe, and carried the water to his barns for his own use, and from the barns he carried the water to a blind ditch in the highway below the tannery. Before this the tannery had all the water needed, and afterwards no water came to it from this source.

Ira Shafer, for appellants.

Palmer, Weed, Kellogg & Smith, for respondent.

ANDREWS, J.

The diversion of the water of the spring from its natural channel, whereby the plaintiff's intestate was deprived of its use for his tannery, was a legal injury, for which he was entitled to compensation in damages. Arnold v. Foot, 12 Wend. 330;Smith v. Adams, 6 Paige, 435;Clinton v. Myers, 46 N. Y. 511. Whether the use by Swinburne was a reasonable exercise of his right was a question of fact which has been found against him upon sufficient and competent evidence. Prentice v. Geiger, 74 N. Y. 341. The proper rule of damages, under the circumstances, was the diminished rental value of the tannery premises for the purposes of that business during the period of diversion. The rental value of land is a fact ascertainable with reasonable certainty, and is the basis upon which damages are frequently awarded. Cassidy v. Le Fevre, 45 N. Y. 562;Francis v. Schoellkopf, 53 N. Y. 152. The complaint was sufficiently specific to authorize the recovery of whatever legal damages were recoverable for the wrong. The gravamen of the action was the wrongful diversion whereby the plaintiff was deprived of the use of the water on his premises for the purposes of his business. It is not material that the plaintiff did not demand the precise damages to which he was entitled, or that he mistook the true rule of damages in his complaint. The complaint averred a legal wrong and a resulting pecuniary injury, and it was competent for the court, under the complaint, to adjust the recovery upon the true basis. It is a sufficient answer to the objection that the plaintiff, by his bill of particulars, was confined to a recovery of damages of the exact nature therein specified; that the objection was not taken until the close of the plaintiff's proofs, and after the evidence of rental value had been given, without raising any question that it was not competent on the ground of variance from the bill of particulars. This technical objection should have been raised when the evidence was offered, and the court was not bound to entertain it on the motion for a nonsuit.

The action was not barred by the three-years statute of limitations contained in subdivision 4, § 383, Code Civil Proc. The action was not an action to recover...