Stone v. State
| Decision Date | 11 April 1893 |
| Citation | 33 N.E. 733,138 N.Y. 124 |
| Parties | STONE et al. v. STATE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from board of claims.
Carder L. Stone and Uriah L. Stone presented to the board of claims accounts and claims against the state of New York for damages to their lands and crops, resulting from the overflow of the Genesee river, and from the award allowing the claims the state appeals. Reversed.
S. W. Rosendale, Atty. Gen., for the State.
E. E. & G. W. Harding, for respondents.
This is an appeal from an award of the board of claims, made June 24, 1891, for the sum of $530, in favor of the claimants, for damages caused by the overflow of the waters of Genesee river upon and over the farm of the claimants, in the town of Hume, Allegany county, on or about the 6th day of June, 1889. The general facts found by the board, and upon which the award is based, are stated in the award. It was found that the state, in the years 1839 and 1840, while engaged in the construction of the Genesee Valley canal, caused the channel of the Genesee river, in the towns of Hume and Caneadea, near the lands in question, to be changed, to avoid the winding course of the river, which ran a circuitous course of over two miles at this point, with a sluggish current. The new channel cut by the state was from 80 to 100 rods in length, and turned the flow of the water, which formerly ran a distance of two miles or over, in the old channel at this point, within the new channel so constituted. The change in the channel resulted in the water of the river flowing upon and washing away the adjoining land. The farm of the claimants, however, was not affected by the erosion, as it did not adjoin the new channel. It is found that in order to protect the adjoining lands from damage, which it was foreseen would result from the change in the channel, the state constructed a guard bank parallel with the new channel, on the north side thereof; that this bank was gradually undermined by the current running in the new channel during a period of more than 30 years; that the state negligently omitted to maintain it, and keep it in repair, or to provide other protection against the overflow or washing away of the bank; that in June, 1889, the water in the new channel overflowed and ran over the land adjoining, and from thence onto the premises of the claimants, causing the damages specified. It is found that, at the time of the overflow complained of, there was a freshet greater than had occurred in that locality in many years, but that the water did not rise to within about four feet of the top of a portion of the guard bank then standing, as originally constructed. It was also found that the damages sustained by the claimants were not caused by the freshet, but were occasioned by the change in the channel, and the negligence of the state in not maintaining and keeping in repair the guard bank, or providing other suitable protection against the overflow of the water. The state has appealed from the award, and by the notice of appeal the validity of the award is challenged as against law and evidence, and on the point of jurisdiction, and for errors in the admission of evidence.
It is claimed on behalf of the state that the evidence conclusively establishes that the overflow of the river at the time in question was attributable to a freshet of unprecedented character, operating over a wide territory, and that the presence of a guard bank at the point in question would not have prevented the overflow. It was the same freshet which caused the Johnstown disaster in Pennsylvania, and it was admitted by the claimants, on the hearing of the claim, that such a freshet had not occurred in the locality in question for 25 years; and it was conceded, up on offer of proof being made, that the Genesee on that occasion overflowed the country at a great number of places, and that the water in the Chemung, at Elmira, rose from 20 to 28 feet above its ordinary stage, causing serious damage. Indeed, the violence of the floods caused by the June freshet of 1889 is matter of common history. But, in view of the rule which is made part of the statute regulating appeals from the board of claims, that only questions of law arising on the hearing of the claim are cognizable by this court upon an appeal from an award, with the single exception of the quantum of damages, (Laws 1883, c. 205, § 7,) we cannot reverse the award upon the ground that there was no evidence that the guard bank, if it had been maintained as originally constructed, would not have prevented the overflow on the premises of the claimants. But we are of opinion that there are several errors of law which require a reversal of the award.
The claimants, at the hearing, presented a record of an award made by the board of claims, March 9, 1887, upon a claim filed by one Thomas R. Leet against the state, ‘to show the liability of the state.’ The counsel for the state objected to the competency of the record as evidence in the case, stating the grounds in detail. The objection was overruled, and an exception was taken, and the record was then read in evidence. The record showed that on March 9, 1887, the board of claims awarded to Thomas R. Leet the sum of $320 upon a claim originally filed by him June 29, 1870, before the board of canal appraisers, and afterwards transferred to the board of claims, for damages sustained by him prior to that date, from the washing away of his land adjoining the channel of Genesee river in the towns of Hume and Caneadea, in the county of Allegany, caused by the new direction and force of the current of the river, and the failure of the state to maintain proper and sufficient guard banks. This record was improperly admitted. The claimants in this case were not parties to that proceeding. They were neither privies in law nor estate with Thomas R. Leet. The present claimants acquired their title to a part of the lands owned by them, in 1872, and to all prior to the award made in the former proceeding. So far as appears, Thomas R. Leet never had title to the lands owned by the present claimants. The doctrine is elementary that a judgment binds only parties or privies. A fact...
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