Hartshorn v. Chaddock
| Decision Date | 04 October 1892 |
| Citation | 135 N.Y. 116,31 N.E. 997 |
| Parties | HARTSHORN v. CHADDOCK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by Charles Hartshorn against Ransom N. Chaddock. From a judgment of the general term, (16 N. Y. Supp. 714,) affirming a judgment for plaintiff entered on the report of a referee, defendant appeals. Affirmed.
Hakes, Page & Acker, (De Merville Pages,) for appellant.
Daniel L. Benton, for respondent.
The recovery in this case is based upon the wrongful obstruction by the defendant of a stream or water course, in consequence of which the plaintiff's land was flooded, and the soil washed away, and personal property thereon destroyed. The trial was had before a referee, and, as the evidence was conflicting upon the essential issues of fact, we must be governed by the findings in reviewing the case. The Canacadea creek is a nonnavigable stream, originally over 100 feet in width, passing through the city of Hornellsville in an easterly direction. The lots of the plaintiff are on the southerly bank of this stream, and those of the defendant on the northerly, and nearly opposite each other. The lands in the vicinity have been from time immemorial subject to some overflow from the creek during freshets and in time of very high water, though it does not appear what, if any, damage resulted therefrom. In order to protect the lots abutting on this creek at the point in question from the overflow, the owners on both sides had raised the banks by driving piles into the soil along the shore, and covering them with plank, and filling in behind with dirt and rubbish. On the northerly side, and in front of the defendant's lands, the stream had been encroached upon in this way prior to the year 1888, and narrowed, so as to cause the water to flow upon the lands of the plaintiff on the southerly side, though it does not appear that up to that time any very serious damage resulted. During the summer of 1888 the defendant extended the piling in front of his lands some 25 or 30 feet further into the bed of the stream. This new line of piles was covered with plank, and filled in behind with earth and rubbish, and constructed in such a way that the water would not flow through it. The referee finds that this formed a solid dam or obstruction extending into the channel of the stream as it then flowed, obstructing the flow of water for nearly one third of its width as it existed before. The channel of the stream in front of the plaintiff's lands was thereby narrowed and obstructed to the extent of at least 20 feet. It is also found that the act of the defendant in thus obstructing the flow of water in the stream was illegal, and dangerous to the lands of the plaintiff on the opposite shore in time of freshets or high water; that on June 1, 1889, after a long and heavy rain, the water in the stream raised several feet, and increased in volume and velocity, and the flow of the water was dammed and obstructed by the defendant's piling, and the water was thereby displaced, and forced upon the lands of the plaintiff; that this flow of the water upon the plaintiff's land washed out his piling and the soil along the shore, and destroyed or carried away lumber, shingles, wood, and other personal property of the plaintiff on his land. It is found that, though the freshet was unusual with respect to the volume of water, yet that similar ones, but of less power, have occurred in the past, and are liable to occur in the future, from heavy rains or melting snow; and in such cases the obstruction in the stream, created by the defendant, must force the water from its natural channel in which it was originally accustomed to flow upon the lands of the plaintiff. The referee reported that the plaintiff was entitled to iudgment for the damages caused by the diversion of the water from the channel of the stream by the defendant's act to the plaintiff's lands, and he assessed the damages at $866.25. The general term has affirmed the judgment.
Irrespective of any question of negligence or malice, a riparian owner who, by his willful act, diverts the waters of a natural stream from its accustomed channel, and causes them to flow upon the lands of his neighbor, is liable for the resulting damages. McKee v. President, etc., 125 N. Y. 353, 26 N. E. Rep. 305. All the facts necessary to the application of that principle have been found by the referee, and none of them are so destitute of evidence for their support as to warrant us in disturbing the judgment. There is, however, a question of law in the case of some importance. The referee allowed the plaintiff $520, the cost of 1,600 cubic yards of soil washed away by the flood. On the trial a witness for the plaintiff was asked the following question: ‘What is the value per cubic yard of filling in that washout?’ The defendant objected that the testimony was incompetent, and that the measure of damages sought to be proved thereby was improper....
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