APPEAL by the claimant, the New England Brick Company, from a judgment of the Court of Claims of the State of New York in favor of the defendant, bearing date the 17th day of October, 1910, and entered in the office of the clerk of the Court of Claims dismissing the claimant's claim.
Benjamin B. Hutchins [Robert Frazier of counsel], for the appellant.
Thomas Carmody, Attorney-General [Henry Selden Bacon of counsel], for the respondent.
The New England Brick Company, a foreign corporation organized and existing under the laws of the State of Maine, was the owner on September 4, 1907, and for some time prior thereto of a brickyard in the town of Halfmoon, Saratoga county, N.Y. , near the village of Mechanicville. Running through the said premises of claimant is a small stream known as the Hart or Hollow brook. This brook drains this valley, containing about two square miles of land, and after leaving the premises of claimant said brook flows under a highway bridge and about seventy-five feet beyond that flows by means of a double culvert with two rectangular openings about sixty feet long, about two feet nine inches wide and four feet four inches high under the Champlain canal belonging to the defendant and which culverts were erected and are maintained by it. On September 2, 3 and 4, 1907, there was a rainstorm in that vicinity, which was very severe on the fourth. It is claimed by the brick company that the double culvert in question, constructed by the State in about 1823, was insufficient to carry off the water of this stream at the time of this storm and as a result the water backed up and overflowed the claimant's brickyard and put out the fires under a kiln of brick, destroying many thousands of brick partly burned, many thousands of brick unburned, some yellow ochre and a private bridge of claimant, and in addition damaged a dwelling house belonging to claimant. It is claimed all this damage occurred because of the insufficient size of this double culvert to carry off the water which reasonable foresight and prudence and engineering skill on the part of the defendant should have foreseen would have been likely to have occurred at times of heavy rainfall and that the defendant was also negligent in not properly keeping the culverts in question cleaned so as to take the waters from the brook.
The Court of Claims found against the claimant, dismissing its claim, and from this decision the claimant appeals.
It appears that there was a rainfall in 1864 and another in 1887 of about the same volume as that of these September days, 1907, and that each time the water of the brook was dammed back by the culvert so that it overflowed the canal bank.
The court finds that by reason of such flooding of claimant's brickyard in September, 1907, the personal property of claimant was damaged and also the dwelling house in question.
It appeared in evidence that on September second for twenty-four hours the rainfall was forty-five one-hundredths of an inch. On September third the rainfall was seven-tenths of an inch and on September fourth it was four and twenty-five one-hundredths inches, this amount being in each instance for the twenty-four hours of the day and no definite evidence being given as to what portions thereof fell during any particular part of either of these days.
The court found that the capacity of the said double culvert was about 5,000,000 gallons of water per hour when the water reached the height of the top of the culvert and about 9,000,000 gallons per hour when the water was about ten feet above the top of the culvert, and about 12,000,000 gallons of water per hour when the water was running over the top of the canal bank; also that a rainfall of one inch upon two square miles amounts to 34,755,000 gallons of water; that the actual run-off from the watershed of Hart brook would be about 18,000,000 gallons of water in one hour; that an inch of rainfall per hour is a heavy rainfall and that it occurs frequently; thus it appears from the finding of the court that the culvert as constructed was not sufficient to carry off an inch of rainfall per hour, which occurs frequently. The court also found that an inch of rainfall per hour is the usual basis for making calculation for the construction of culverts, hence it appears that without any obstruction of the culvert it was not of sufficient size to carry off the rainfall that might reasonably be expected to occur in this valley and which frequently did occur. When the water rose high enough to flow over the canal banks it would back up so as to flood claimant's brickyard.
Findings of fact Nos. 34 and 35 are as follows:
'34. That there was a rainfall in the afternoon of Sept. 4, 1907, over the drainage of Hart brook as appears by gauges taken within one mile of ...