Foot v. Bronson

By the Court Johnson, J. The evidence fully sustains the findings of fact by the judge before whom the action was tried. According to this finding, the defendants, in order to ameliorate the condition of their own land, and to free it from surface water, which would otherwise collect and remain on the low, marshy places thereon, from rains and melting snows, deepened the ditch on the north side of Washington street, adjacent to such lands, over three feet below what it had ever been before. The object of this deepening of said ditch was, as the defendants themselves testify, to draw the surface water, which would otherwise collect .and stand on such lands, off more rapidly and effectively than it could otherwise be done, and their lands, thus relieved, were thereby rendered more productive and valuable. This water, so drawn through the .ditch thus deepened, -was, in an unusual and unnatural manner, and with unaccustomed force, cast upon the lower lands of the plaintiffs, to their manifest detriment, annoyance and injury. The injury is not speculative and fanciful merely, but real and substantial; and, if the cause is suffered to remain, [51] will be of perpetual recurrence. These acts of the defendants, by which this injury has been occasioned, were without right as against the plaintiffs, and the law will afford them adequate redress. The owner of land may undoubtedly relieve it from surface water, and adopt means to prevent such water from accumulating and remaining upon it, either by ditches and drains or by tilling up low and wet places, for the purpose of enhancing its value, either by rendering it useful for tillage or changing it from an- unsightly or an unwholesome condition; and no ■ adjacent owner or other person has the right to complain or ask for redress on account of any incidental loss of profit or advantage to him by the mere removal of such surface water, or the prevention of its accumulation, by the owner. (Rawstron v. Taylor, 11 Exch., 369; Goodale v. Tuttle, 29 N. Y., 459.) And this court has recently held, in a case not yet fully reported, that the owner of low, swampy lands may lawfully drain them, by means of ditches, into a natural water-course, and that the riparian owners on the stream below can have no action for damages by reason of the volume of water being increased by spring thaws or rains, or decreased and failing at an earlier period than formerly, in consequence of such drainage. (Waffle v. N. Y. Central R. R. Co., Alb. Law Jour., vol. 3, p. 131.) But no person has the right to relieve his own land from standing water, or prevent its accumulation thereon, by discharging it through ditches or drains upon the lands of his neighbors. Such an improvement and amelioration of one’s own property, at the expense or to the detriment of another, is opposed to every maxim of law and every sentiment of justice, (Bellows v. Sackett, 15 Barb., 96.) Domat, 616, Cushing’s ed., says: “ Thus he who has the upper grounds cannot change the course of the water, either by turning it some other way or rendering it more rapid, or making any other changes in it to the prejudice of the lower grounds.” As to mere surface water, standing upon land, and flowing in no regular course or channel, the owner of the land may appropriate it or divert it, in any manner he may choose, [52] without casting it upon his neighbors, to the injury of such neighbors. No action lies for the mere diversion of such water. (Broadbent v. Ramsbotham, 11 Exch., 602; Rawstron v. Taylor, id., 369.) The defendants are, therefore, clearly liable, in some form, to the plaintiffs; and the question arises as to the kind of remedy which the law will give to the latter. It is quite obvious, from the very nature of the case, that the preventive remedy is the only one which can entirely rectify the evil, and afford the plaintiffs adequate protection and redress. Without this, their liability to periodical or occasional injury from the same cause will be perpetual. It is not essential to this kind of relief that the injury should be absolutely irreparable. It is enough that it is of that nature and character, as the injury in question clearly is. It is a continuing source of danger, from which injury and damage may flow in endless repetition. And although the injury at any one time may not be extraordinary in magnitude, yet it is quite .apparent, from all the evidence, that it is by no means beneath judicial and equitable cognizance. This remedy will also obviate the necessity of multiplied .actions for damages, which may at auy time accrue while the cause remains. The grounds for equitable interposition are clear and ample. The case of Corning v. Troy Iron and Nail Factory (40 N. Y., 191) affords all the authority needed to sustain the judgment of the Special Term upon the merits. It is objected, on behalf of the defendants, that the plaintiffs, being owners of separate lands, and neither having any joint or common interest in the lands of the other, or in the alleged injury, cannot join in an action for relief. This is, undoubtedly, the general rule; but it is subject to exceptions, .and it has been repeatedly held, that, in case ,of a private nuisance, or any grievance which is common to several distinct and separate owners, they may unite in a single action for its removal, or to be relieved from it. (Reid v. Gifford, Hopk., 416; Murray v. Hay, 1 Barb. Ch., 59; Brady v. Weeks, 3 Barb., 157.) Such is essentially the character of [53] the present action; and it was in that view that it was held upon the trial that it was unnecessary, if not improper, to establish any particular amount or quantum of damages. The evidence is abundant to prove that real and substantial damage had been inflicted. It is also now claimed that the complaint should have been dismissed as to the defendant Bronson, inasmuch as it appears from his testimony, and without contradiction, that he. had disposed of his interest in the premises that this ditch was made to drain, before the ditch was lowered, and had no interest in its being lowered, or in its eohtinuance at the improper depth to which it was excavated. But no such question was raised at the trial, and there was no ruling or exception in regard to it. He did not move a dismissal of the complaint as to him, at any stage of the trial. But if he had, it could have been of no avail. The ditch dug or deepened was in the highway, and not otherwise upon the defendants’ premises, and it was clearly shown, even by his own testimony, that he aided and assisted in the excavation, and that a considerable portion of it was done under his direction and supervision. He was one of the principal parties by whom the injury was inflicted, and it is not material that he was not benefited by it. I am of the opinion, therefore, that the judgment or decree of the Special Term is in all respects right, and should be affirmed, with costs. Judgment affirmed.