Davis v. Niagara Falls Tower Co.

• Decision Date: 29 May 1902
• Citation: 64 N.E. 4,171 N.Y. 336
• Parties: DAVIS et al. v. NIAGARA FALLS TOWER CO.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 336

64 N.E. 4

DAVIS et al.

v.NIAGARA FALLS TOWER CO.

Court of Appeals of New York.

May 29, 1902.

Appeal from supreme court, appellate division, Fourth department.

Action by Charles Davis and others against the Niagara Falls Tower Company. From a judgment of the appellate division (67 N. Y. Supp. 1131) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

O'Brien, J., dissenting.

J. H. Metcalf, for appellant.

Morris Cohn, Jr., for respondents.

CULLEN, J.

The plaintiffs and the defendant are owners of adjacent properties on a street called the ‘Riverway,’ in the city of Niagara Fails. The plaintiffs have constructed on their land a building used for a museum, with large skylights in the roof. The defendant has built on its land a hotel and a tower or observatory. This tower is about 200 feet high, and is constructed of an open iron framework with braces and cross girders. At the top of the tower there is an observatory. Visitors are carried to and from the observatory by elevators. The whole structure is several feet within the limits of the defendant's land. As found by the trial court, during the winter ice is formed on the structure from sleet, melting snow, and spray from the Falls of Niagara, which accumulates,and when a thaw occurs large quantities of ice fall from the tower upon the roof of the plaintiffs' building, in size and with velocity sufficient to endanger human life, by means of which plaintiffs' building and property have been injured. The action was brought to recover damages, and for an injunction to restrain the defendant from so maintaining the tower as to suffer ice to fall therefrom on the plaintiffs' property. The trial court also found that the injury to plaintiffs' building and the accumulation and fall of ice from the tower on the plaintiffs' property recurred each winter during periods of thaw. It further found that the tower was a safe, substantial, and suitable structure for the purpose for which it was used. On these facts it decided, as a matter of law, that the maintenance and construction of the tower was a private nuisance, and that the plaintiffs were entitled to a perpetual injunction restraining the defendant from so maintaining the structure that ice would form thereon and fall on the building and premises of the plaintiffs. A reference was ordered to ascertain the plaintiffs' damages. On the report of the referee final judgment was entered for an injunction and damages. This judgment was affirmed by the appellate division (67 N. Y. Supp. 1131) and an appeal has been taken to this court.

The affirmance below having been unanimous, the question presented here is whether the facts found entitle the plaintiffs to judgment. The court has not found any negligence in the character or plan of the structure maintained by the defendant. The element of negligence being thus eliminated, the plaintiffs' right to recover depends on the duty that the defendant owed to adjacent owners with reference to ice that might accumulate on its building. The law with reference to rainfall seems well settled. So long as the owner of land leaves it in its natural condition, he is not required to adopt any measures to prevent the flowage of surface waters from his premises on the adjoining land (Vanderwiele v. Taylor, 65 N. Y. 341), but when he puts a structure on the land a contrary rule prevails. Then he must take care of the water that falls on his premises, except in the case of extraordinarystorms. In Washb. Easem. p. 390, it is said of the right to eaves' drip: ‘It grows out of the fact that for one to construct the roof of his house in such manner as to discharge the water falling thereon in rain upon the land of an adjacent proprietor is a violation of the right of such proprietor, if done without his consent, and this consent must be evidenced by express grant or prescription.’ In Bellows v. Sackett, 15 Barb. 96, it was held that the defendant could not maintain a building upon his lot, the water falling from the roof of which injured the plaintiff's building, whether the water actually fell in the first instance on the defendant's land or not. In Walsh v. Mead, 8 Hun, 387, it was held that, where the roof of a building was so constructed as to render the snow falling upon it liable to be precipitated on the sidewalk without an adequate guard at the edge to retain it, it is in law a nuisance. The doctrine of Bellows v. Sackett was followed in Jutte v. Hughes, 67 N. Y. 267. There this court said: ‘The proof showed that the defendant had paved the yard, thus causing the water to accumulate, and render the yard less penetrable to the same, and conducted from the roofs of his houses to the privy in leaders and drains an unusual quantity of water beyond the capacity of the drains to carry away. This he had no right...