CARY H. BROWN and ELIZABETH BROWN, Appellants,
THE CITY OF ITHACA, Respondent.
APPEAL by the plaintiffs, Cary H. Brown and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 1st day of April, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiffs' case on a trial at the Tompkins Trial Term, and also from an order entered in said clerk's office on the same day denying the plaintiffs' motion for a new trial made upon the minutes.
This is an action for damages claimed to have been sustained by reason of the overflowing of Fall creek in the city of Ithaca upon February 15 and March 3, 1908. Said stream has its sources to the east of the city and reaches the valley through a deep gorge, flowing thence in a westerly and northwesterly
direction until it reaches the level of Cayuga lake. North Cayuga street extends north and south and appellant's premises are situated upon the east side of this street and some 200 feet south of the creek. Cayuga street crosses the creek by a bridge with a span of 104 feet, and about 300 feet to the west the Lehigh Valley railroad crosses with a bridge of about the same length. The banks of the creek in the vicinity of Cayuga street were formerly low and in places not well defined, it appearing that in 1904 the creek had no north bank for some distance east of Cayuga street, and that prior to 1907 there were depressions or flood water channels to the south at the railroad bridge, on both sides of the creek between the railroad bridge and Cayuga street, and to the north along the east side of Cayuga street. Prior to 1907 the south bank east of Cayuga street was higher than the land opposite and it does not appear that this part of the south bank had ever been overflowed. Prior to the floods in question the channel to the south along the railroad track had been filled, but by whom does not appear.
By chapter 345 of the Laws of 1906 'The board of creeks, drainage and park commissioners of the city of Ithaca' was established, with wide powers for 'controlling and regulating the flow of water in the creeks and watercourses and for protection against overflow and for providing relief channels or additional watercourses * * * as the board shall deem for the best interests of the city.' It was further provided that nothing in the act should be so construed as to authorize any compensation for damages for which the city would not otherwise be responsible. Pursuant to this act the board thereby constituted in the fall of 1907 undertook to improve Fall creek by cleaning out the channel and depositing the materials so removed and also ashes upon its banks. Both banks were thus raised from the railroad bridge east to Cayuga street, but east of Cayuga street the north bank only was raised, the south bank being left unchanged. In this south bank there had existed prior to 1907 a depression some two hundred feet east of Cayuga street, so that after the north bank opposite was raised the south bank was for twenty or thirty feet lower by from one to three feet than the north bank. Upon the first
date mentioned a flood occurred with the result that there was an ice jam at the railroad bridge, the stringers of which were a little lower than the banks as raised. This jam extended back practically all the way to Cayuga street and the impounded waters were raised until they overflowed the south bank east of Cayuga street at the depression mentioned and caused the damages claimed, the north bank opposite being all the time above the water. At the height of the flood citizens cut the north bank opposite the depression, which soon stopped the flow of water through the south bank. The north bank was within two days thereafter repaired and a few weeks later and on the second date mentioned a second flood took place under similar circumstances and appellants' lands were again overflowed. Damages from both floods are claimed by appellants, although the damages were not separated upon the trial. It appears that the lands on both sides of the creek west of Cayuga street were largely unoccupied and unused. On the east side of Cayuga street and north of the creek were lands owned or controlled by the city or by the board of education and used as a public playground.
J. J. McGuire, for the appellants.
Peter F. McAllister, for the respondent.
SMITH, P. J.:
The respondent invokes the rule that municipal corporations engaged in the performance of works of a public nature authorized by law are not liable for consequential damages occasioned thereby to others where private property is not directly encroached upon unless such damages are caused by negligence. (Atwater v. Trustees, etc., 124 N.Y. 602.) In the case at bar no negligence has been testified to directly nor proved except as shown by the acts of raising the banks of this stream. But these acts evidently closed certain overflow or flood water channels which formerly took care of the flood waters of the creek, with the result that waters were diverted from their customary channels and into and through the depression in the south bank and so over appellants' premises. Such a diversion clearly amounts to an invasion of appellants' property rights, and if
claimed to be authorized under the act creating the board the statute must be deemed unconstitutional in so far as it permits such a taking in effect of private property for a public use without compensation.
No evidence was given as to whether or not this flood was such an extraordinary one that the overflow at the depression into the south bank could not reasonably have been anticipated to result from the raising of the opposite bank. The excessive fall of the stream before reaching the valley and the various overflow channels or depressions along the banks of this stream may be considered as giving notice that the elevation of the banks west of Cayuga street and on the north side of the stream east of Cayuga street might easily cause an overflow at the depression in the south bank in case of an ice blockade at the low railroad bridge. The board had engineering advice at its disposal and was presumably familiar with all the conditions. It was apparently solicitous to protect the public property along the north bank, and this even at the expense of private property, as is shown by the repairing of the cut in the north bank after the first flood had shown the risk of an overflow at the depression in the south bank. Although for a mere error ...