Smith v. City of Brooklyn

• Decision Date: 10 October 1899
• Citation: 160 N.Y. 357,54 N.E. 787
• Parties: SMITH v. CITY OF BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

160 N.Y. 357

54 N.E. 787

SMITH

v.CITY OF BROOKLYN.

Court of Appeals of New York.

Oct. 10, 1899.

Appeal from supreme court, appellate division, Second department.

Action by Walter B. Smith against the city of Brooklyn. From a judgment of the appellate division (52 N. Y. Supp. 983) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

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

George Wallace, for respondent.

GRAY, J.

This action was brought to recover damages of the defendant for the draining of a stream and pond upon the plaintiff's premises. The stream had existed in the same channel for very many years, and the plaintiff, by means of a dam, had made a pond upon his premises. He had made use of both in connection with his farming operations, for the collection and sale of ice, and for boatbuilding purposes. The defendant, at a distance of some 2,400 feet to the south of the plaintiff's pond, had constructed an aqueduct for the purpose of conducting water for its municipal purposes, and supplied the water from a reservoir, which was filled by means of wells and pumps upon its own land. The allegations of the complaint, which charged the defendant with draining the plaintiff's water course and pond, and with thus depriving him of their use, were denied by the answer, and upon the issue made by the pleadings the parties went to trial. There, after the plaintiff had given in evidence the facts upon which he relied as proving or tending to prove that the direct cause of the stream running dry was in the draining of the territory by the defendant's construction of an extensive system of conduits, wells, and pumps and the use of suction power, the latter undertook to meet the plaintiff's case by the testimony of its engineers and of experts, and to prove that the draining of the pond and stream were due to causes and conditions with which either it was not connected, or for which it could not be held responsible. In submitting the case to the jury, the trial judge instructed them that, upon the evidence, it was for them to determine what was the cause of the loss of water in the plaintiff's pond, and that, if the defendant did drain it for its purposes by the operation of its pumps and conduits, it was responsible to the plaintiff for the damages sustained. The jury returned a verdict for the plaintiff, and upon appeal to the appellate division from the judgment entered thereon that court directed an affirmance of the judgment by an order which recited that the court had ‘unanimously decided that the verdict of the jury is supported by evidence.’ That decision has conclusively established that the defendant's acts caused the diversion and loss of waters in the stream and pond, and is not subject to our review.

The legal question of the defendant's liability to respond in damages in such an action is no longer one which should be regarded as open to discussion. It is settled by the decision of the courts of this state, and it is the rule in England, that no one may divert or obstruct the natural flow of a stream for his own benefit, to the injury of another. Pixley v. Clark, 35 N. Y. 520;Van Wycklen v....