Huffmire v. City of Brooklyn

• Decision Date: 01 May 1900
• Citation: 162 N.Y. 584,57 N.E. 176
• Parties: HUFFMIRE et al. v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 584

57 N.E. 176

HUFFMIRE et al.

v.CITY OF BROOKLYN.

Court of Appeals of New York.

May 1, 1900.

Appeal from supreme court, appellate division, Second department.

Action by Richard Huffmire and Samuel Huffmire against the city of Brooklyn. From a judgment of the appellate division (48 N. Y. Supp. 132) affirming a judgment for plaintiffs, defendant appeals. Affirmed.

John Whalen, Corp. Counsel (William J. Carr, of counsel), for appellant.

Frederick E. Crane, for respondents.

WERNER, J.

This action was brought to recover damages to a bed of oysters planted by the plaintiffs in Mill creek, which is tide water bordering upon that portion of the city of Brooklyn formerly known as the town of Flatlands, Kings county, N. Y. These oysters were planted under a permit issued to the plaintiffs by the justice of the peace and the supervisor of said town of Flatlands, pursuant to the provisions of chapter 734, Laws 1868. This act, in substance provides that any person who has been an inhabitant of the town for a period of six months prior to making application may, upon complying with the provisions of the act, acquire the right to plant oysters under the public waters within said town, and have ‘the exclusive property in the oysters so planted, and the exclusive use of said oyster beds.’ The first permit received by the plaintiffs was issued in December, 1882. The rental or license fee was $10 a year. This permit was renewed from year to year until 1892, when the plaintiffs omitted to procure a formal renewal thereof, but continued to plant and gather oysters as before. On the 9th of February, 1893, the plaintiffs paid $20, which included the rental for 1892, and renewed their permit until December, 1893. The damage to plaintiffs' oyster bed was caused by the discharge of sewage thereon from one of defendant's sewers. The history of this sewer, and its relation to this controversy, is as follows: By chapter 161, Laws 1889, the legislature authorized the town of Flatbush to build a sewer to empty into the waters of Jamaica Bay, of which Mill creek is a part. This sewer was constructed so that its outlet was about 300 feet from plaintiffs' oyster bed, and was first used in January, 1893. Soon after it was in operation, the plaintiffs discovered that their oysters were covered with and ruined by tar and ‘sludge acid’; substances which were being discharged from the mouth of said sewer. The town of Flatbush constructed the sewer in question; but by chapter 356, Laws 1894, said town was annexed to and became a part of the city of Brooklyn, being designated as the Twenty-Ninth ward thereof. Section 4 of said act provides that the city of Brooklyn shall not be or become liable to pay ‘any debt, liability or obligation of the town of Flatbush * * * contracted or incurred prior to the time this act shall take effect, * * * but the property in such town * * * as now constituted * * * shall remain liable for said debts, liabilities and obligations, and the moneys to meet the same, principal and interest, as they accrue, shall be raised by taxation upon the property of said town.’ The act further provides that the taxes levied for these purposes, when collected by the city of Brooklyn, shall be paid over to the county treasurer or other proper officers charged with the duty of paying such indebtedness, and exempts the territory above described from certain general city taxes.

The first question presented for our consideration, although not seriously urged upon the argument, is whether the city of Brooklyn in the proper defendant in such a case as this. As this action was not brought until after the town of Flatbush had become merged in the city of Brooklyn, the latter is undoubtedly the proper party defendant in any case which might have been brought against the former before such merger. Where a municipal corporation is legislated out of existence, and its territory annexed to another, the latter, unless the legislature otherwise provides, is entitled to the property and liable for the debts of the former. Dill. Mun. Corp. (4th Ed.) § 186. The provisions of chapter 356, Laws 1894, limiting and defining the liability of the defendant for debts and obligations of the town of Flatbush prior to its annexation to the city of Brooklyn, were simply intended to confine the area of taxation for such debts and obligations to the territory which would have been liable but for such annexation. This is made clear by other provisions of the same act exempting the territory annexed from the payment of certain taxes levied for the exclusive benefit of the city of Brooklyn as it was constituted prior to 1874. Any other construction of the annexation act referred to would leave remediless those having lawful claims against the former town of Flatbush. That town no longer exists. By the act of 1894 it became a part of the city of Brooklyn, and the latter is now the only legal entity which can be brought into a court of justice upon claims against the former. We therefore address ourselves to the principal question, which arises upon defendant's contention that it is not liable in any event. It seeks to shield itself from liability herein by the application of the rule that in the construction or operation of a public work under legislative authority or direction a municipal corporation is not answerable for such a consequential injury as may result to others where there is no negligence in such construction or operation. We recognize the controlling force of this familiar and now well-settled principle. It is founded upon the transcendent power of the legislature, within constitutional limitations, to enact whatever it may deem essential to the public welfare. The question which most frequently arises in cases where this rule is invoked is whether the injury complained of is purely consequential, or is so direct as to amount to a taking of propertywhich entitles the party injured to compensation under the constitution. That is the precise question here presented. The plaintiffs contend that the casting of noxious and destructive substances upon their oyster bed was not a consequential, but a direct, injury. The defendant insists that the discharge of the sewer in question into the waters of Mill creek is simply the consequential result of obedience to the legislative mandate, and that, in the absence of negligence on the part of the municipal authorities in the construction and operation of said sewer, the defendant is not liable. Applying the rule which the defendant invokes in all its force and breadth, we think this case falls directly within the constitutional inhibition against the taking of property without compensation. The plaintiffs were lawfully in possession of a piece of land under water upon which they had planted a bed of...