Watson v. City of Kingston

• Decision Date: 16 April 1889
• Citation: 114 N.Y. 88,21 N.E. 102
• Parties: WATSON v. CITY OF KINGSTON.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 88

21 N.E. 102

WATSON

v.CITY OF KINGSTON.¹

Court of Appeals of New York,

Second Division.

April 16, 1889.

Appeal from supreme court, general term, Third department.

Action by Esther Watson against the city of Kingston. Judgment of nonsuit was affirmed at general term, and plaintiff appealed. She having since died, William Watson, administrator, etc., was substituted.

S. L. Stebbins, for appellant.

John J. Linson, for respondent.

HAIGHT, J.

The complaint, in substance, alleges that the plaintiff is the owner of a house and lot in the city of Kingston, on the north-east corner of Ravine and German streets; that the defendant, in grading Ravine street, proceeded irregularly and without authority of law; that in so doing the city built a wall and embankment in front of the plaintiff's premises, rendering access thereto difficult and inconvenient; that the wall and embankment was constructed so negligently and unskillfully as to cause and permit the water, which would otherwise have passed down Ravine street, without injury to the house and premises of the plaintiff, to flow into and upon the same, to their injury; that in such grading the defendant wrongfully and illegally gathered and collected large quantitles of water, which otherwise would not have reached the plaintiff's premises, and had been accustomed to flow elsewhere, and caused the water to flow down Ravine street, until near the premises of the plaintiff, and then, by negligently and unskillfully omitting to provide safe, sufficient, and proper means for carrying the water, and by negligent and unskillful grading of the street, caused the accumulated water to flow across the street, and into and upon the house and premises of the plaintiff. Ravine street is cut along the side of a hill, ascending the same at a steep grade. Spruce and Spring streets cross the same as the streets ascend the hill. The plaintiff's house is located on the lower side of Ravine street. In 1879 the common council of the defendant passed an ordinance, establishing the grade of that portion of Ravine street lying between German and Pierpont streets, and in May, 1883, passed another ordinance, directing that that portion of Ravine street be graded according to the established grade theretofore fixed by the ordinance of 1879, and in accordance with the plans and specifications theretofore prepared by the city engineer, and approved by the common council; and at the same time passed another ordinance, directing that sidewalks be constructed upon the street; that the same be curbed and guttered according to the specifications contained in the ordinance; and that the same be done by the owners or occupants of lands abutting thereon; and, if not so done by them within a specified time, that it should be done by the common council at the expense of the owners or occupants, respectively. The specifications for the grading of Ravine street, prepared by the engineer and approved by the common council, providedthat, where lots or buildings are based upon lower levels than the established grade, the grade and sidewalk should be supported by a dry-wall of stone, so as to prevent the earth-work from extending beyond the street line, and so avoid encroachment upon the basements of buildings. The specifications further provided that the property owners should have the privilege of constructing a wall of masonry in lieu of the dry-wall provided for in the specifications. The evidence tends to show that the plaintiff's premises were at a lower grade than that established for the street, and that in front of the plaintiff's house a dry-wall was constructed; that, subsequent to the grading, water came down the street, penetrated through the gutter and walls so constructed onto the plaintiff's premises, causing her considerable damage. Our attention has been called to no irregularity in the proceedings or ordinances of the common council tending to show that the grading of Ravine street was without authority of law, and we shall consequently assume that such proceedings and ordinances were regular and valid. The plaintiff's house had been built upwards of 30 years before a grade had been established for Ravine street, and, consequently, no cause of action will lie because of the establishing of the grade of the street higher than the plaintiff's lot.

The duty devolved upon the municipality of establishing a grade for the street, and of so working and improving it as to make it safe and convenient for the passage of the public. In establishing the grade, and adopting plans for the improvement of the street, the common council acted judicially, in the exercise of its judgment, and of the discretionary power vested in it, as to what would best serve the public interest; and the rule is that a civil action will not lie for acts that are judicial in their character, and discretionary. Urquhart v. City of Ogdensburg, 91 N. Y. 67. The wall that was built in front of the plaintiff's premises was a part of the plan approved by the common council for the improvement of the street. Its object was to prevent the earth-work from extending beyond the line of the street, and encroaching upon the plaintiff's premises. No other or better plan...