Wenzlick v. . McCotter

Danforth, J. First, it is unnecessary to consider whether at the close of the plaintiff’s case she had established a cause of action. ' The defendant did not then retire from the contest; and if the necessary facts were after that established, it is *126 sufficient. (Murray v. Judah, 6 Cow. 484 ; Jackson v. Leggett, 7 Wend. 377.) Second, it is well to observe that the proof failed to sustain the averment of the complaint as regards the position and extent of the pipe upon the sidewalk. It did not reach the street, nor did it abridge the area of the walk. Nor does the decision below or the contention of the respondent rest upon that averment. Both stand upon the fact that it was the medium through which water was discharged thereon. I do not, however, find the law to be that a conductor pipe, designed to convey water from the roof to the ground, when constructed with due care and proper precaution, is in itself unlawful, so that.it can be deemed a nuisance, even if its mouth is toward the walkj and it discharge upon it. Of course, if it was a wrong or a trespass, the recovery here might be justified. But the water itself caused no injury; nor was the owner of the property forbidden by any ordinance to relieve his roof in that manner. It is common in cities to direct, rain or melting snow' from the roof to the gutter and thence to the leader, and so on to the sidewalk or street. Unless prohibited by positive regulation it is not an offense. If, when gathered, the water is poured upon the traveler, a different question would arise. But as the care of streets and sidewalks is intrusted to the municipality, if they do not object to the discharge, I do not see .how an individual can. Once upon the walk, and there frozen and permitted to remain, it may subject the municipality to an action for an omission of duty. Upon this ground the city of Troy was held liable to one injured.- by stepping upon ice so formed. (Todd v. The City of Troy, 61 N. Y. 506.) While under like circumstances, it was held in Kirby v. Boylston Market Association (14 Gray, 249) that an action would not lie against the property-owner, and that the remedy for damages so incurred was exclusively against the city. Nor can the plaintiff’s case be made out upon the ground that the defendant caused the obstruction. As he neither erected the pipe nor used it, at no time inter-meddling with it in any way, or being benefited by it, the most that can be said is that he did not tear it up or remove it. If *127 it is a nuisance, it was placed there before he acquired title to his house, and his position is not unlike that of the owner of land upon which a third party should wrongfully enter and erect a nuisance. In such a case the owner would not be liable either for the erection of the nuisance or its continuance, until he was requested to abate it. If he used or repaired it, the case would be different, for thus he would become an active participant in the wrong. It is sometimes said to be enough to charge a defendant, that having acquired the title to land after the nuisance was erected, he has continued it. (2 Greenl. Ev., § 472.) But this must be taken to mean more than an omission to abate or remove it — something amounting to actual use. As, if the defendant simply suffer a dam erected upon his land by a former owner to remain, without being used by him, it is no continuance of the nuisance, unless he be first requested to remove it. (Pierson v. Glean,, 2 Green, 36; Morris Canal, etc., Co. v. Ryerson, 27 N. J. Law, 457, 469.) To the same effect is Beswick v. Cunden (Cro. Eliz. 520), where the complaint was that the defendant custodivif mid majiutenuit guandam, molem in a brook, “by reason whereof the brook surrounded his land.” The court say its meaning is that he kept the bank as he found it, “ and that is not any offense done by him, for he did not do any thing; and if it were a nuisance before his time, it is not any offense in him to keep it.” And Moore v. Dame Browne (3 Dyer, 319), where the defendant’s husband wrongfully inserted a pipe into the plaintiff’s conduit, thereby drawing water at his pleasure to serve his house. After his death the wife was found guilty of continuing the nuisance erected by him, because by turning the cock and using the water, she assented to, and thereby adopted the wrongful act of the husband; later cases are to the same effect. (Morris Canal, etc., Co. v. Ryerson, supra.) For do those cited by the respondent establish any different doctrine. In Brown v. Cay. & Sus. R. R. Co. (12 N. Y. 486), the obstruction ■—a bridge — was not made by the defendant, but it had repaired the bridge by the insertion of new timber, placed anew rail upon the track resting thereon, and used it. And so in Wasmer v. D. L. & W. R. R. Co. *128 (80 N. Y. 212), there was use of the nuisance by the defendant. That case stands upon the general doctrine that he who knowingly adopts and uses a nuisance is just as responsible” as he who created it. In Irvine v. Wood (51 N. Y. 224), and Clifford v. Dam (81 id. 56), the coal-hole which caused the injury was used by the defendants as appurtenant to their premises. In Walsh v. Mead (8 Hun, 387), the roof of the defendant’s house was not furnished with a snow guard, proved to be an essential appliance on such a roof for the protection of persons traveling on the walks below ; and the plaintiff, while there, was injured by snow falling from the roof. The case is clearly distinguishable' from this in the fact that the injury came from accumulations on the defendant’s own house, and fell because he had improperly constructed it. In the case before us, the defendant by merely suffering the pipe to remain, doing nothing to it, in no way using it,' cannot be said to have continued the nuisance. If I am right in this conclusion, it follow's that the case stated in the complaint and adopted as the ground of judgment was not established. Other objections are made to the plaintiff’s recovery, but as for the reasons above stated the judgment must be reversed, I forbear to speak upon them, as the evidence upon which they are thought to. stand may be varied if a new trial should be had. The judgment should be reversed and a new trial granted, with costs to abide the event. All concur. Judgment reversed.