Howard v. City of Buffalo

• Decision Date: 05 May 1914
• Parties: HOWARD et al. v. CITY OF BUFFALO et al.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 241

105 N.E. 426

HOWARD et al.

v.CITY OF BUFFALO et al.

Court of Appeals of New York.

May 5, 1914.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Gibson Howard and another against the City of Buffalo and others. From a judgment of the Appellate Division, affirming a judgment for plaintiffs (151 App. Div. 198,135 N. Y . Supp. 303), defendants appeal. Reversed and remanded.Louis L. Babcock, Helen Z. M. Rodgers, and William B. Hoyt, all of Buffalo, for appellants Railroad Companies.

George E. Pierce, of Buffalo, for appellant City of Buffalo.

Edward C. Randall, of Buffalo, for respondents.

CARDOZO, J.

The plaintiffs are the owners of the Howard farm in the city of Buffalo. They complain that through the action of the city in changing the grade of a street, and through the action of the railroad companies in building embankments and bridges, their farm has been flooded. They ask for an injunction and damages,and the courts below, two justices dissenting at the Appellate Division, have sustained their right to that relief.

The case has two branches, which are for the most part distinct. The first branch, and that the most important one, brings up the question whether there has been an unlawful obstruction of the waters of the Buffalo river and of Cazenovia creek. The second brings up the question whether there has been an unlawful obstruction of Howard creek, a rivulet which traverses the plaintiff's farm. The two aspects of the controversy call for separate consideration.

The Buffalo river is about 56 miles long. It runs westerly through the city of Buffalo in an irregular, winding course, and empties into Lake Erie. About 6 1/2 miles from its mouth it is joined by the waters of Cazenovia creek. This is a stream about 26 miles long, which runs through the city in a northwesterly direction till it meets the river. In a section of the city south of the Buffalo river, and more than a mile away from it, lies the plaintiff's farm. Distant from the river though it is, it has not escaped the floods which for many years have risen above the banks, and inundated the neighboring city. Its owners seek to trace these consequences to acts of the city of Buffalo and of the defendant railroads, which involve, so it is asserted, an unlawful obstruction of the flood channel of the stream.

As we follow the river in its course upstream, the first railroad bridge which we meet is that of the Lake Shore & Michigan Southern Railway Company. Then comes the bridge of the Pennsylvania Railroad Company and the New York, Chicago & St. Louis Railroad. Next comes the bridge of the Buffalo Creek Railroad, connected by embankments with the lines of the Erie and the Buffalo, Rochester & Pittsburg Railroads; next comes the lower Lackawanna bridge; next the Abbott Road bridge, maintained by the city of Buffalo, and next the upper Lackawanna bridge. For the moment the Abbott Road bridge will be disregarded, and our attention confined to the bridges constructed by the railroads. They go back in some instances to distant times; the earliest of them was built in 1852, the latest in 1882. As they were first built, culverts and other openings were left in the earth embankments which made up the approaches to them. In the embankment of the Lake Shore & Michigan Southern Railway, the first opening south of the river was distant 5,100 feet from the bridge. In the embankment of the Pennsylvania Railroad and the New York, Chicago & St. Louis Railroad, the first opening south of the river was about 4,000 feet from the bridge. In the embankment of the Buffalo Creek Railway and the Erie Railroad it was about 2,800 feet south of the bridge. In the embankment of the Buffalo, Rochester & Pittsburg Railroad it was 700 feet north of Tifft street, and Tifft street is about a mile from the bridge. The approach to the upper bridge of the Delaware, Lackawanna & Western Railroad was on an open trestle about a quarter of a mile long. The approach to the lower Lackawanna bridge does not call for consideration, since no change in respect of that bridge is directed by the judgment. The culverts and trestle work as thus built were maintained for many years. Their abandonment is the occasion of the plaintiffs' grievance. In 1888 the Lake Shore & Michigan Southern Railroad filled in the culverts in the approach to its bridge so as to create a solid earth embankment; the Pennsylvania Railroad and the New York, Chicago & St. Louis Railroad did the same in 1892; the Buffalo Creek Railroad in 1886, and the Erie Railroad and the Buffalo, Rochester & Pittsburg Railroad in 1890. The Delaware, Lackawanna & Western Railroad in 1891 filled in the trestle work at the east end of its upper bridge, and substituted an embankment of solid earth. At the time when this action was begun, in January, 1906, the approaches of earth embankment, without culvertsor other openings, had been established, and had remained unchanged for periods ranging from 14 to nearly 20 years. They were built upon land which belonged to the respective railroads in fee.

There is no claim by the plaintiffs that any part of these embankments extends into the bed of the stream. The channel of the river in its normal course, the channel between its banks on either side, is unobstructed except for the piers of the bridges, which are neither excessive in their dimensions nor otherwise improper in construction. The claim is made, however, that the embankments, though not within the bed of the river, are within its ‘flood channel,’ i. e., a channel capable, it is said, of accurate definition, within which, at times of freshets, the flood waters of the river were once accustomed to flow, broadening out beyond the normal banks, till finally at some lower point they returned to the river from which they came. It is not needful to pause here in order to consider whether the boundaries of such a channel can now be traced. It is enough in this connection to state the plaintiffs' claim in that regard. The obstruction of this flood channel by the embankments leading to the bridges is said to have set back the waters which once had an outlet, it is insisted, through culverts and trestles. The floods thus set back have swollen, it is said, the waters of the river, which, escaping over the Abbott road, in the vicinity of Hopkins street, have poured in great volume over the southerly section of Buffalo till they have reached the plaintiffs' farm a mile away.

To bring about this result, however, something more was necessary, even if we accept the plaintiffs' view, than the change by the railroads in the approaches to their bridges. The other thing that was necessary was a change in Abbott road, for which the city of Buffalo and no other defendant is responsible. The nature of that change is next to be considered. More than 40 years ago a turnpike company, known as the Abbott's Corners Plank Roard Company, built the Abbott Road bridge across the Buffalo river and the highway connecting with that bridge, which is known as the Abbott road. The course of this road is approximately the same as that of Cazenovia creek until the creek enters the river. From there the road runs southwest of the river and several hundred feet away from the river's banks, till it crosses from the south to the north side of the stream by means of the Abbott bridge at a point between the upper and lower Lackawanna bridges. The Abbott bridge rests to-day upon the same abutments that have been used as a foundation since it was built. The superstructure only has been changed, and of that no complaint is made. The Abbott road, however, as distinguished from the bridge, has been rebuilt and regraded, and, according to the plaintiffs' contention, with most harmful consequences. When this road was first built by the turnpike company, its roadhed was made higher than the natural surface of the adjacent land. The elevation was altogether artificial. It was made by digging ditches on each side of the road and sluices underneath. The earth from the ditches and sluices was thrown on the road so as to form an elevated driveway. Its height was not uniform. The form of construction thus adopted was useful in promoting the drainage of the road itself, and also, it seems, in interposing an artificial barrier to the flood waters of the river. About 1890 the city of Buffalo acquired all the rights of the turnpike company in Abbott road. Thereafter and in 1892 it closed the ditches and sluices and lowered the grade of the road to the level of the adjacent land. This was done under an agreement between the grade crossing commissioners of the city of Buffalo and the Delaware, Lackawanna & Western Railroad Company with a view to the abolition of the railroad's grade crossing at that point. The crossing now passes above the highway. The turnpike road was so uneven in height that the new grade, though lower than the old one at some points, is higher at others. The finding is that since the lowering of the grade of Abbott road by the city of Buffalo, and since and including the year 1893, the flood waters of the Buffalo river and Cazenovia creek have flowed across Abbott road in the vicinity of Hopkins street, and it is through this avenue of escape that they have reached the plaintiffs' land. Up to that time the plaintiffs were not troubled with floods from that source. The changes in the embankments making up the approaches to the railroad bridges had been made before 1893 and had worked no mischief. The trouble began, so the court has found, when the city of Buffalo changed the grade of Abbott road; and Abbott road, as previously elevated above the adjacent land, was an artificial and not a natural barrier.

These are the changes wrought by the railroad companies and the city of Buffalo which are said by the plaintiffs to have impeded the free flow of these waters within the channels marked by nature. But the changes for which the...