Paine v. Trs.

• Decision Date: 08 October 1889
• Citation: 116 N.Y. 224,22 N.E. 405
• Parties: PAINE v. TRUSTEES, ETC., OF DELHI.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 224

22 N.E. 405

PAINE

v.TRUSTEES, ETC., OF DELHI.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from supreme court, general term, fourth department.

This was an action for an injunction brought by George H. Paine against the trustees and inhabitants of the village of Delhi. Judgment was rendered for defendants, which was affirmed by the general term. Plaintiff appeals.

O. W. Smith, for appellant.

George A. Fisher, for respondents.

HAIGHT, J.

This action was brought to restrain the defendants from obstructing the water in the village ditch, and to prevent it from damming up, and overflowing onto the plaintiff's premises. The plaintiff is the owner of a lot on the southerly side of Main street, on which there is a building used as a printing-office. On an adjoining lot there is a sewer constructed from the street to the river, from which the surface water flowing in the gutters of the street is conveyed to the river. Over the entrance to the sewer in the gutter of the street is placed an iron grate, through which the water enters the sewer. Sometimes, in cases of unusual storms or floods, the leaves and other material gather upon the grate, and obstruct the passage of the water through it into the ditch, so that the ditch fills with water, which overflows the sidewalk onto the plaintiff's premises. It does not appear that there is any collection of the surface water from the surrounding territory other than that collected upon the surface of the road-bed, or that the amount of water flowing in the gutter in front of the plaintiff's premises is any greater than that which naturally flowed there. It is conceded that the sewer is sufficient to carry off all the water which accumulates and runs in the street, and it is not claimed but that the grate is of sufficient size to permit all of the water to pass through it when it is not clogged with leaves or other material. It appears from the evidence that in case the grate should be removed it would leave an open hole from the surface of the street into the sewer, which would endanger the safety of the traveling public. Under these circumstances, it appears to us that the trial court properly held that the village authorities should not be restrained from maintaining the grate. It is possible that some other device might be arranged so that the water would enter the sewer from the curb under the sidewalk, instead of from the bottom of the gutter; but in that case, if there was no grate maintained, the leaves and other material would be carried directly into the sewer, and might serve to dam up and clog the flow of the water, and thus cause the same difficulty complained of. The grate is the device in general use in our principal cities and villages to prevent sticks, leaves, and other material from entering the sewers, and we are not prepared to hold that it should be disapproved of and removed. Some allowance must be made for the judgment and discretion of the...