O'Donnell v. City of Syracuse

• Decision Date: 06 February 1906
• Citation: 184 N.Y. 1,76 N.E. 738
• Parties: O'DONNELL v. CITY OF SYRACUSE.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 1

76 N.E. 738

O'DONNELL

v.CITY OF SYRACUSE.

Court of Appeals of New York.

Feb. 6, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Bridget O'Donnell against the city of Syracuse. From a judgment of the Appellate Division (92 N. Y. Supp. 555,102 App. Div. 80), affirming a judgment for plaintiff, defendant appeals. Reversed.

The plaintiff recovered a judgment against the defendant for damages resulting to her property from an overflow of Onondaga creek, upon her allegations that the occurrence was chargeable to the neglect of the defendant to perform its duties, either assumed, or devolved upon it by law, with respect to the proper care and maintenance of the channel of the stream. The action came on for trial before a referee, who made findings of fact, from which he reached the legal conclusion of the defendant's liability. So far as material, the following were the facts found: On the 15th day of December, 1901, the water in the creek rose to an unusual height, overflowed the banks, reached the lot of the plaintiff, filled the cellar of her house, and flooded her lot to the depth of about two feet. The water was mixed with sewage, coming from sewers constructed by the defendant and emptying into said creek. As a result of the flood a portion of plaintiff's lot was washed away, fruit trees, vines, and bushes were destroyed, articles of personal property were destroyed, or injured, sewage deposits were left, the grouting in the cellar was loosened and the walls were damaged. Onondaga creek rises in the highlands, in the southern part of the county of Onondaga, passes in a northerly direction through the central portion of the city of Syracuse, and empties into Onondaga lake. The creek, from the lake to the south line of the Indian reservation, which is several miles southerly from the south line of the city, was declared a public highway by an act of the Legislature in 1801. It does not appear that said creek has been used for purposes of navigation, except that prior to 1850 it was used to some extent for floating logs. There were in operation in said city 23 sewers that emptied into said creek, all of which had been constructed by the defendant. They were 75 miles in length, 35 miles of which were in paved streets. These sewers operated to produce a larger and quicker flow of the creek than would have been produced in their absence and ‘contributed to some extent to the overflow in question.’ The court found that ‘the defendant was incorporated in 1847. In 1854 the Legislature conferred upon the common council power to make ordinances to clear out and deepen the channel of said creek and for the removal of obstructions therefrom, and by the revised charter of 1885, edited 1894, power was given directly to the common council to regulate and to clear out, deepen, and improve the said channel and require obstructions to be removed from the same.’ It was found that ‘for many years prior to December, 1901, the channel of said creek had been considerably and materially obstructed by accumulations of ashes, cinders, and dirt, or other rubbish, thrown in from the banks or floating down stream, by bars of sand or gravel, and by refuse from the sewers, and these obstructions by impeding the flow contributed to the overflow in question’; that ‘the flow of water was also impeded by several bridges constructed by the defendant’; that ‘the flood of December, 1901, was an extraordinary one; that in 1865 there had been a flood equal to it, or greater; that since that time there have been other floods, but not so large; that the liability from the situation of the watershed of the creek to rapid accumulation and overflow in case of heavy rain or melting snow had not diminished since 1865, but rather increased; that in January, 1897, the attention of the common council of the defendant was especially called to this subject by one of its own committees; that the flood in question was such a one as might have been reasonably expected to occasionally occur; that the right of the defendant to use the creek as an outlet of the sewer was recognized by the Legislature as early as 1872; that by reason of the extensive use by the city of the creek for that purpose it had become a part of the sewer system, and its use was necessary to the efficiency of that system, and that, as such, the city had the care and charge of the same; that it was the duty of the defendant to keep the channel of the creek in a reasonably safe condition for the discharge of the sewage and water; that it failed to perform this duty; and that such failure contributed to produce the overflow in question and was one of the efficient causes thereof.’ The judgment entered for the plaintiff upon this decision was affirmed by the Appellate Division in the Fourth Department, and the defendant has further appealed to this court.

Bartlett and Werner, JJ., dissenting.

Walter W. Magee, Corp. Counsel (Benjamin J. Shove, of counsel), for appellant.

Theodore E. Hancock and John N. Mosher, for respondent.

GRAY, J. (after stating the facts).

The theory of the defendant's responsibility, maintained by the learned referee in an opinion, was that, by practically taking possession of Onondaga creek for its municipal purpose, it had ‘converted a natural water course into a public sewer’ and its duty was ‘the same as if the sewer was originally artificial.’ Hence, it was ‘bound to maintain it in a reasonably safe and efficient condition’ and having failed to perform this duty, the failure was an efficient cause of the injury to the plaintiff's property. At the Appellate Division this theory of liability was concurred in. It was thought that, from the use made of the creek, ‘the city was called upon to exercise affirmatively its governmental functions to reduce to a minimum the damages likely to result from the use,’ and that ‘the affirmative obligation, inseparably linked with this user, throws upon it the burden of paying whatever damages resulted from the overflowage, although the unusual flood was the inducing cause and responsible for the greater proportion of the damages.’ I am unable to agree with the courts below in this view of the city's responsibility towards its inhabitants. I might suggest that, as it was found that the city's acts but contributed ‘to some extent’ to the overflow of the creek, it was error to hold it liable for a damage to the plaintiff, to which the acts of others, not acting in concert with it, had contributed. The channel of the creek had been obstructed by the throwing in of ashes, cinders, dirt, and rubbish from its banks and by the formation of bars of sand and gravel, so that others than the city were measurably responsible for interfering with the channel of the stream. The municipality was chargeable only with that much of the damage which was caused by its wrongful acts, and if the damage was incapable of separation and the proportions of liability could not be established, that fact affords no reason for holding the city responsible for the tortious acts of others. The rule is discussed in Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566, in the light of both the American and the English cases, and is summarized in the statement that ‘where different parties are engaged in polluting or obstructing a stream, at different times and different places, the whole damages occasioned by such wrongful acts cannot be collected of one of the parties.’ See, also, Sammons v. City of Gloversville, 175 N. Y. 346, 67 N. E. 622. I think the rule is applicable to this case; but I prefer to place its decision upon a broader ground, and to hold that no responsibility whatever lay upon the city for what damage the plaintiff, or others similarly situated, may have sustained by reason of the extraordinary rise and overflow of the creek.

It will not, I assume, be disputed that a municipality would not be liable for the consequences of a mere overflow of the stream, or river, upon whose banks the settlement had been made and had grown into the proportions of a city, in the absence, of course, of any conditions enjoining some duty with respect thereto through the neglect of which injury had been occasioned. Indeed, it was conceded below that no duty ordinarily would be cast upon a municipality to restrain the waters between the banks, and hence none to indemnify its citizens against the consequences of freshets or floods. But the argument is that the city, by its user of Onondaga creek, under its charter and ordinances, and under certain statutes, came under a responsibility for its safe condition; that is to say, that it had assumed a dominion over the stream by converting it to its use for sewer purposes, and was therefore under an ‘affirmative obligation, inseparably linked with the user,’ of paying the damages resulting from an overflow. This is a broad proposition, and, as I think, an unwarrantable extension of the rule of municipal liability. In order that a municipality shall be made liable for causing an injury, it must appear that some duty, incumbent upon it to perform, had been neglected, or had been improperly discharged. The act, the omission or commission of which is charged as the cause of the injury, must have been within the scope of the corporate powers, as provided by the charter or by some positive enactment of law. A municipal corporation is the delegate of sovereign power to legislate as to the public needs of the locality. It may be said, in a sense, to possess a dual character. It acts in a governmental capacity to the extent that it exercises its powers in matters of public concern, and it acts in a private capacity in so far as it exercises its powers, under its by-laws, for private advantage, in matters pertaining to the municipality, as the proprietor of the various works and properties. Lloyd v. Mayor, etc., of N. Y., 5 N. Y. 369, 55 Am. Dec. 347. It exercises the governmental...