Tremblay v. . Harmony Mills

Cullen, J. Assuming the sufficiency of the appellant’s exception to raise the point, which may well be doubted, the question presented on this appeal is whether the trial court erred in instructing the jury that if the defendant was negligent in maintaining a leader from the roof of a building so as to discharge water on the sidewalk by which ice was accumulated thereon and the walk rendered dangerous, the plaintiff was entitled to recover. “ At common law any act or *600 obstruction which unnecessarily incommodes or impedes the lawful use of a highway by the public is a nuisance ” (Angell on Highways, § 223), and any party who sustains a private or peculiar injury therefrom may maintain an action to recover the damages sustained. (Wakeman v. Wilbur, 147 N. Y. 657.) This is unquestionably the general rule. That the jury could have found that the discharge of water and drippings from the leader in winter weather, when the water so discharged was liable to freeze and form ice, rendered the sidewalk dangerous and constituted an obstruction, and that the defendant was negligent in not carrying his leader under the sidewalk to the carriageway seems to me quite plain. To exonerate the defendant from liability it must establish one of two propositions : First, that it had the lawful right to discharge the water which it had collected on the roof of its building upon the highway regardless of the effect of that action upon the highway; or, second, that because the municipality was liable to any one injured by the defective character of its highway, no action could be maintained against the abutting owner, though his act may have created the danger or defect. I think that neither proposition can be sustained. “ Highways are public roads which every citizen has a right to use.” (Angell on Highways, § 2.) “ The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed.” (Hudson River Tel. Co. v. Watervliet T. & Ry. Co., 135 N. Y. 393.) A fortiori the use of the highway without legislative sanction must be subordinate to the public right of safe passage. A highway is not laid out or maintained either as a drain or as a sewer. In urban districts the easement acquired by the public includes the right to lay sewers, water pipes and similar conveniences under the highway. But the highway itself remains devoted to. its paramount purpose of public travel, and no action can be maintained against the municipality because it does not construct a sewer in a street. Hor can any right of *601 the appellant to discharge the water from the roof of its building be predicated of its ownership of the adjacent land. As. between private owners, as long as one. leaves his land in its natural condition he is not required to adopt measures to prevent the flowage of surface water from his premises on those of his neighbor. (Vanderwiele v. Taylor, 65 N. Y. 341.) But when he puts a structure on his land a contrary rule prevails, and he must take care of the rain or snow that falls thereon, except in case of extraordinary storms. (Bellows v. Sackett, 15 Barb. 96 ; Jutte v. Hughes, 67 N. Y. 267; Davis v. Niagara Falls Tower Co., 171 N. Y. 336.) Even when such an owner erects no structure he cannot “ collect the surface water into channels and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law.” (Barkley v. Wilcox, 86 N. Y. 140.) “ He may consume it, but must not discharge it to the injury of others.” (Forbell v. City of New York, 164 N. Y. 522.) The same principle obtains against the public authorities when they so grade a highway or construct a sewer as to collect water and discharge it to the injury of adjacent lands. (Moran v. McClearns, 63 Barb. 185; Noonan v. City of Albany, 79 N. Y. 470.) Why is not the converse of the proposition equally true? In the opinion of my brother, Gray, it is said of municipal corporations: “ They owe the duty to the public of preventing the accumulation of ice from house conductors, or leaders, overhanging, or near to the sidewalk.” Surely the abutting owner cannot be authorized to do that which it is the duty of the municipal authorities to prevent. The fact that the city may have been liable to the plaintiff did not relieve the defendant from liability if the negligent or wrongful act. of the latter created the dangerous condition of the highway. On the city there rested the duty of maintaining its streets reasonably safe for the passage of travelers. So far as the street may become unsafe from natural causes that obligation is solely on the city, and even if an ordinance imposes upon the abutting owners the duty of removing snow *602 from the sidewalk, an action will not lie by a third party against an abutter for failure to comply with the ordinance. (City of Rochester v. Campbell,. 123 N. Y. 405.) in the case cited the snow which caused the injury had fallen upon the sidewalk and the abutter had not contributed to its presence there. The doctrine of the case has no application where the affirmative act of the abutter creates the obstruction. On the contrary, “ when corporations have been compelled to pay damages for a Avrongful act perpetrated by another in public highways, they become entitled to maintain an action against such persons for indemnity from the liability Avhich the Avrongful act of the tort feasor has brought upon them.” (Opinion of Ruger, Ch. J., citing authorities, same case.) It. is contended that we are concluded by the decisions of this court in Wenzlick v. McCotter (87 N. Y. 122) and Moore v. Gadsden (87 N. Y. 84). We think they do .not control the determination of the present case. In the. Wenzlielc case some broad statements were made by the learned judge writing the opinion Avhich are in conflict with the views we have announced. These statements, however, were not necessary to the disposition of the case, and a careful reading'of the opinion will- sIioav that the decision proceeded on the ground that the defendant had neither erected nor used the leader and that, therefore, he Avas not liable for the creation of a nuisance or for its continuance until he had been requested to abate it. In the Moore case the defendant had not changed the natural' surface of his highway, from which it Was alleged surface water or the drippings from melting snow had fallen on the sideAvalk. The judgment appealed from should be affirmed, with costs.