Fordham Operating Corp. v. Westchester County

• Decision Date: 19 March 1975
• Citation: 370 N.Y.S.2d 977,82 Misc.2d 566
• Parties: FORDHAM OPERATING CORPORATION, Plaintiff, v. The COUNTY OF WESTCHESTER, Defendant.
• Court: New York Supreme Court

Page 977

370 N.Y.S.2d 977

82 Misc.2d 566

FORDHAM OPERATING CORPORATION, Plaintiff, v. The COUNTY OF WESTCHESTER, Defendant.

Supreme Court, Westchester County.

March 19, 1975.

Fanelli, Moore, Bosco, Penzel & McMillan, New Rochelle, for plaintiff; Tanner & Friedman, P.C., New York City, of counsel.

Gerald Harris, County Atty., White Plains, for defendant; Alfred J. Mungo, White Plains, of counsel.

MORRIE SLIFKIN, Justice.

This is an action to enjoin and restrain the defendant from channelling and diverting surface waters from a public highway into a storm drain and then on to plaintiff's land; to enjoin and restrain the discharge of surface waters on plaintiff's property; to direct the defendant to complete the drainage system so as to prevent the channelling of water therefrom on to plaintiff's property; and for money damages.

Plaintiff has moved for summary judgment granting it an injunction as demanded in the complaint and for an order directing an immediate trial on the issues of damages. Defendant cross moves for summary judgment dismissing the complaint.

The plaintiff is the owner of vacant land at the northwest corner of Theodore Fremd Avenue and North Street in the City of Rye, New York. In 1926, the predecessors in title of the plaintiff prepared a proposed subdivision of this property and in connection therewith, conveyed to the Village of Rye (predecessor of the City of Rye) a strip of land extending across the property 40 feet in width and 290 feet in length for a proposed street. This strip of land ran from Theodore Fremd Avenue to a point about 35 feet from the New York, New Haven and Hartford Railroad. From that point to the railroad property a 10 foot easement was granted to the Village of Rye. The proposed subdivision was never developed or completed and as a result thereof, the roadway was not constructed. The Village of Rye installed a sewer line in the bed of the said 40 foot strip and 10 feet easement.

In 1931, the bed of Theodore Fremd Avenue was transferred by an act of the Legislature from the Village of Rye to the County of Westchester. Thereafter, and about that time, the County of Westchester reconstructed Theodore Fremd Avenue and North Street in the area involved in this proceeding. In connection therewith, it installed storm drains and catch basins along the streets, one of which was installed in front of the subject property. When this catch basin was built, a drain pipe 4 feet in length was installed running from the catch basin into the 40 foot strip of land owned by the Village of Rye. Subsequently, on two occasions and prior to 1947, the said drain pipe was extended under ground in the said 40 foot strip of land for a total distance of approximately 100 feet by the County of Westchester. It is conceded that the surface waters from Theodore Fremd Avenue drained into the said catch basin and ran therefrom through the extended drain pipe into an open ditch on the surface of the said 40 foot strip of land in the direction of the railroad property.

Since 1931, it is conceded that Theodore Fremd Avenue has been a county road and since that date, the County of Westchester has been responsible for the maintenance of the street which includes the draining of surface waters therefrom. It is further conceded that by subsequent mesne conveyances, certain easements were created which are a matter of record, but the benefit of which extend exclusively to the Village of Rye (now the City of Rye) and which do not extend in favor of the defendant in this action.

In 1963, the City of Rye conveyed title to the 40 foot strip hereinabove referred to, a private corporation. On September 30, 1963, this corporation, B. M. Heede, Inc., conveyed title to Norse Development Corporation by a deed of record and thereafter by deed dated December 6, 1963, the Norse Development Corporation, conveyed the subject premises to Fordham Operating Corp. the plaintiff in this action, which deed is recorded in Liber 6675 of Deeds at page 494.

The Court has considered the affidavits and exhibits submitted in connection with the instant motions. Plaintiff concedes that they took title subject to the easements of record presently in favor of the City of Rye, but plaintiff's vice-president, who executed the affidavit in support of the instant motion on behalf of plaintiff, states that he did not learn of the existence of the drain pipe leading from Theodore Fremd Avenue until some time after litigation had been commenced between these parties. However, it is to be noted that a print of a survey prepared by the Munson Company dated July 23, 1963 and certified to the title company which later insured title in plaintiff, discloses in the bed of the 40 foot easement referred to, an 18 inch drain, a head wall below which appears an open drain ditch, the conduit through which storm waters are deposited on the lands of the plaintiff. Further, plaintiff's engineer certifies that his visual inspection during the course of a rain storm disclosed that water was actually discharged in heavy volume and substantial amounts into the drainage ditch creating a substantial body of surface water which plaintiff claims serves to deprive it of the use of its property.

In 1970, this plaintiff brought an action against both the County of Westchester and the City of Rye in which the same relief was sought as in the instant action. However, that action was dismissed by a decision of Mr. Justice Walsh against the County of Westchester for failure to file a notice of claim and against the City of Rye on the ground that the drain pipe in question is within the exclusive management and control of the County of Westchester.

The plaintiff in this action as set forth above, seeks to enjoin the County from continuing to collect and discharge the channelled water on its property and to recover monetary damages.

The answer of the County after denying the material allegations of the complaint, sets forth numerous affirmative defenses.

The second affirmative defense alleges that plaintiff's property forms a natural low point into which the drainage of which the plaintiff complains is a result of the natural run-off of surface waters from nearby properties. As a third affirmative defense, defendant alleges that the topography of plaintiff's land has remained in substantially its present condition for at least 50 years last past.

These defenses are both insufficient in law and not supported by the facts adduced. One who claims a dominant estate by reason of an easement claimed against a servient estate for the purpose of permitting the natural drainage of surface waters from a dominant estate to the surface of the servient estate is subject to the qualification that the owner of the dominant estate cannot by artificially created means, concentrate and discharge surface waters which, if left alone, would have drained elsewhere, (Barkley v. Wilcox, 86 N.Y. 140; Buffalo Sewer Authority v. Cheektowaga,20 N.Y.2d 47, 52, 281 N.Y.S.2d 326, 228 N.E.2d 386; Musumeci v. State of New York, 43 A.D.2d 288, 292, 351 N.Y.S.2d 211). At bar, the County undertook to construct and maintain devices which artificially and deliberately collected the surface waters from the bed of the public street and channelled those waters through its catch basin and drainage pipe on to plaintiff's land. Under these circumstances, the County cannot rely on the rule above cited.

The fifth affirmative defense alleges that when plaintiff acquired title to the instant premises, plaintiff had knowledge, as evidenced by the contract of sale, that it could not use 14,000 square feet thereof as well as the area of the easement to which reference has been made in favor of the City of Rye for the purposes of construction. Defendant urges that plaintiff had an option to rescind the contract of sale if plaintiff was prevented by the City of Rye from building on the remainder and plaintiff could have escaped from the contract. That limitation however was confined solely to the effect of the Zoning Ordinance on plaintiff's right to build. It is to be noted that the waters discharged on plaintiff's land caused flooding both on the area covered by the easement as well as other portions of plaintiff's premises and it is this condition and not the limitations of the ordinance which is the basis of this suit. Thus, defendant's defense on this theory is without merit.

The Court now turns to the allegation by ...