Corby v. Ramsdell

• Decision Date: 13 April 1931
• Docket Number: No. 262.,262.
• Citation: 48 F.2d 701
• Parties: CORBY v. RAMSDELL et al.
• Court: U.S. Court of Appeals — Second Circuit

48 F.2d 701 (1931)

CORBY v. RAMSDELL et al.

No. 262.

Circuit Court of Appeals, Second Circuit.

April 13, 1931.

Duncan & Mount, of New York City (Russell T. Mount, of New York City, of counsel), for appellants.

Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The question before us is whether the respondents, owners of land under water on the easterly side of the Hudson river, should be held liable for damages sustained by libelant's yacht Robaliss III as a result of her striking a submerged rock or rocks off Dennings Point while she was proceeding from New York City to Beacon.

The rocks were a part of an old stone abutment constructed by a railroad company on water lots which it acquired from the state of New York prior to 1870. A series of these abutments extended out from the eastern shore of the Hudson connected by stringers. A pier was to be built over the abutments for the purpose of running cars down to car floats on the river and thus transferring them to various terminals in New York City. But the pier was never completed, and the enterprise proved a failure. In 1872 a mortgage covering the property was foreclosed and the uncompleted pier was sold on foreclosure to Homer Ramsdell, to whose rights the respondents succeeded in 1894, as trustees under his will. The cribs holding the rocks which formed the abutments that originally stood about four feet above the level of the water at high tide fell into decay from the action of the elements, and the rocks lay in the bottom of the river and some of them were just visible above the surface of the water at low tide. The abutment farthest from the shore lay about twenty-five feet inside the channel as marked on the government chart. The trustees who held the title to the land under water and the dilapidated abutments never used them in any way and never repaired or marked them.

Libelant's yacht was about 70 feet long and drew 4 feet of water. She was in charge of a master who had never been up the Hudson but twice, the last time about ten years before the accident. He testified that he was steering by landmarks and not by compass and he was not using a chart in the unfamiliar waters, though he claimed that there was one on board. He said that he was running 20 miles an hour at the time of the accident and that his vessel had a speed of 24 miles. But he doubtless was going faster, for in the two hours before he hit the obstruction he had run 52 miles, and he was going at such a speed when he struck that in spite of the collision he went on 150 yards before the yacht finally came to a stop.

We think there can be little doubt that, when the respondent-trustees allowed the crib which held the stone abutments to fall into decay so that the rocks were scattered on the bottom of the river, they were maintaining a public nuisance. Of the existence of this nuisance they must be regarded as having had notice, for the testimony shows that the trustee, Henry P. Ramsdell, saw the abutments built by the railroad; that they originally stood about four feet above high water mark and that finally, by the action of the elements, they had become submerged. In such circumstances, the respondents were liable for obstructing a navigable stream and maintaining a nuisance therein to any person who suffered injury thereby. The fact that the railroad had obtained a grant to construct a pier did not permit it, or its successors, to maintain the pier in a dilapidated condition, unmarked and a danger to navigation. One who maintains a public nuisance on his land, of the existence of which he has notice, or should have notice, is liable for resulting damages to the public. Klepper v. Seymour House Corp., 246 N. Y. 85, 158 N. E. 29, 62 A. L. R. 955; Kilmer v. White, 254 N. Y. 64, 171 N. E. 908; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778; Edwards Ltd. v. Birmingham Navigations, 1924 1 K. B. 341; Barker v. Herbert, 1911 2 K. B. 633; Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382, 53 L. R. A. 891, 86 Am. St. Rep. 506; Hynes v. Brewer, 194 Mass. 435, 80 N. E. 503, 9 L. R. A. (N. S.) 598; Fuller v. Andrew, 230 Mass. 139, at page 146, 119 N. E. 694; Bixby v. Thurber, 80 N. H. 411, 118 A. 99, 29 A. L. R. 175; Arpin v. Bowman, 83 Wis. 54, 53 N. W. 151; City of Newport v. Schmit, 191 Ky. 585, 231 S. W. 54.

It is contended that the respondents ought not to be held liable for damages arising out of the obstruction existing on their land under water because they never received any request to abate the nuisance. This theory of the law of nuisances arose after the decision in Penruddock's Case, 5 Coke, 205, and was based upon the idea that a successor in title could not know that structures found upon his land when he purchased it which encroached upon his neighbor's land were not there because of a grant by or, in any event, with the acquiescence of his neighbor. Accordingly it has been held that the grantee of one who has set up a nuisance is only liable in case he has adopted it for his own use or has been requested to remove it and failed to take action. Various decisions have confused this rule, really applicable only to private nuisances, with the law relating to public nuisances. Wenzlick v. McCotter, 87 N. Y. 122, 41 Am. Rep. 358; Dodge v. Stacy, 39 Vt. 558; Pillsbury v. Moore, 44 Me. 154, 69 Am. Dec. 91; Philadelphia & R. R. Co. v. Smith (C. C. A.) 64 F. 679, 27 L. R. A. 131; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Edwards v. Atchison, Topeka & Santa Fe (C. C. A.) 15 F.(2d) 37. But no one can acquire a right to maintain a public nuisance either by grant or by prescription, and a landowner who maintains one is liable for damages caused thereby if he has had notice of its existence in time to abate it or to warn the public. Casement v. Brown, 148 U. S. 615, 13 S. Ct. 672, 37 L. Ed. 582; Atlee v. Packet Co., 21 Wall. 389, 22 L. Ed. 619; Philadelphia, Wil. & Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209, 16 L. Ed. 433; Williams v. Edward Gillen, etc., Co. (C. C. A.) 258 F. 591; Harrison v. Hughes (C. C. A.) 125 F. 860.

Even in the case of a private nuisance, notice to a landowner has been held sufficient to charge him with liability, though there has been no request to abate. Caldwell v. Gale, 11 Mich. 77; Martin v. Chicago, R. I. & P. Ry. Co., 81 Kan. 344, 105 P. 451, 27 L. R. A. (N. S.) 164.

The master of the Robaliss III testified...