N.Y.C. H.R.R.R. Co. v. . City of Rochester

Prior to 1875, the city of Rochester constructed a sewer, extending from East avenue northerly through a street known as Upton park, which received the contents of several sewers lying westerly of and emptying into it. In 1875, the city constructed another sewer, beginning at a point in East avenue forty feet east of the west line of land then owned by Henry E. Hooker, extending easterly in said avenue about one-half mile to Culver street; thence northerly in that street about fifteen hundred feet to the land of the New York Central and Hudson River Railroad Company where it discharged into an open ditch maintained by the railroad, which ditch passed by a culvert under and to the north of the railroad tracks; thence easterly along the north side of the tracks about eighty rods to Thomas creek, where it discharged. The expense of constructing this sewer, known as East avenue sewer, was paid by taxes collected from the property directly benefited by it. No right was acquired by the city to discharge the contents of East avenue sewer into the ditch on the lands of the railroad, but the railroad permitted it to be done. In 1880, the city began to construct a sewer for the purpose of uniting the two sewers mentioned, so as to cause the sewage which had theretofore been discharged northerly through Upton park sewer, to flow through East avenue sewer and be discharged into the ditch of the railroad. This action was begun by the railroad, and several persons whose buildings were drained into East avenue sewer, to restrain the city from making the connection, and thereby greatly increasing the quantity of sewage flowing in this sewer and ultimately upon the lands of the railroad. The court found that there was no natural right of drainage from this part of the city through the railroad ditch; that no *Page 594 right had been acquired to discharge this additional sewage upon the lands of the railroad, and that when this action was begun, the railroad had revoked the license by which it had permitted the contents of East avenue sewer, as originally constructed, to be discharged upon its land. It is plain that a city cannot empty its sewers upon private property without acquiring the right so to do (Noonan v. City of Albany,79 N.Y. 470), and it is equally plain that a parol license that the sewage from a particular district may be discharged upon private property, does not authorize the discharge of the sewage from a much larger territory upon the property. (Wheelock v. Noonan, 108 N.Y. 179. ) The trial court so held, and restrained, in behalf of the railroad, but not in behalf of the individual plaintiffs, the city from connecting Upton park sewer with East avenue sewer, and turning the sewage from the former into the latter. A judgment was entered upon this decision, which was affirmed at General Term. When a municipal corporation discharges, or threatens to discharge, sewage directly upon private lands from the outlet of a permanent sewer without having acquired the right, the owner is entitled to restrain the injury committed, or threatened, by the judgment of a court of equity, and is not confined to a recovery of his damages in actions of trespass. (Beach v. City of Elmira, 22 Hun, 158; Chapman v. City of Rochester,110 N.Y. 273; Stoddard v. Village of Saratoga, 127 id. 261; Campbell v.Seaman, 63 N.Y. 568; Murdock v. Prospect P. C.I.R. Co., 73 id. 579;Poughkeepsie Gas Co. v. Citizens' Gas Co., 89 id. 493; Wheelock v.Noonan, 108 id. 179; Snell's Eq. [9th ed.] 687, 689; 2 Story's Eq. Juris. § 928.) The defendant excepted to the finding that the railroad company owned the land occupied by it, and upon which the ditch was constructed, and insists that there is no evidence to sustain the finding. On the trial it was assumed, in the questions put to, and in the answers given by the witnesses, that the lands occupied by the railroad were owned by it, and in the resolutions of the defendant's common council relating to this sewer, *Page 595 the lands are referred to as belonging to the railroad. The question of title was not raised on the trial, nor was a motion to dismiss the complaint made on the ground that the railroad company had failed to establish title to the land upon which the sewage was emptied. The defendant preferred no requests to find facts, and the objection that the defendant did not establish a paper title, or any except such as is presumed from possession, cannot, under such circumstances, be successfully raised on appeal. It is urged that the decision of the court and the judgment following it, which restrains the city from making any connection between Upton park sewer and East avenue sewer, and turning the sewage from the former into the latter, is too broad. It is said that the effect of this provision is to prevent the city from constructing such sewers and making such connections between them as may be found necessary. The whole purpose of the action was to restrain the city from discharging more sewage upon the lands of the railroad than it had consented to receive. To such a judgment the plaintiff established a right, and beyond that we do not think the Supreme Court intended to go. Nevertheless, the judgment, by its terms, goes further. It may well be that some place other than the lands of the railroad will be found for receiving the contents of these sewers, in which event the city should be free to make such connections as may be found expedient. The judgment should be modified by inserting before the final clause the following: "The provision in this judgment restraining the city of Rochester from connecting the Upton park sewer and East avenue sewer, and from turning the sewage from the former into the latter, shall not continue in force after the city shall provide a place for its discharge other than on the lands of the railroad company." As modified, the judgment should be affirmed, without costs to either party. All concur, except BRADLEY and HAIGHT, JJ., not sitting. Judgment accordingly. *Page 596