Kilts v. State

Cunningham, J. In the year 1916, and for several years previously, the claimant owned and cultivated a farm in the town of Verona, Oneida county. This farm is bounded on the north by property known as the .Oasterton farm. The state of New York appro [113] priated a part of the Casterton farm and constructed a portion of the Barge canal across it in an easterly and westerly direction, at a point immediately south of the stream known as Wood creek. For many years before the construction of the Barge canal a part of the claimant’s farm was drained by means of an artificial drainage ditch extending across that part of his premises in a northerly direction to and across the Casterton farm, emptying into a natural stream at the location of the Barge canal, or somewhat northerly of it. This stream formed a junction with Wood creek. The canal cut off the drainage ditch at the point where it emptied into the stream. In order to carry away the water flowing into the drainage ditch, the state excavated another ditch on its own property leading from the drainage ditch first mentioned in an easterly direction and into the Barge canal. Prior to the year 1916, the ditch so constructed by the state became partially filled up by vegetation and debris so that it did not discharge or drain the water freely. In the summer of 1916, because of these obstructions in the state’s ditch, the flow of water in the drainage ditch on the claimant’s land was impeded and it backed up, inundated and saturated a part of the claimant’s land, rendering it unfit for cultivation and destroying the crops growing on it. We find from the evidence that the waters in the ditches were not those of any natural stream or streams, but were exclusively surface waters; Such being the case, it is clear that there can be no recovery by the claimant because of the interruption or interception of the first described ditch by the Barge canal construction, or by the subsequent omission or failure on the part of the state to keep the ditch on its lands open and unimpeded. It is well settled that no liability arises from the obstruction of surface waters and their [114] flow by a lower proprietor, although the result is to dam the water back upon the land of an adjoining or upper owner. 40 Cyc. 642; Howard v. City of Buffalo, 211 N. Y. 241, 258; Erwin v. Erie R. R. Co., 98 App. Div. 402; affd., 186 N. Y. 550; Barkley v. Wilcox, 86 id. 140; Gould v. Booth, 66 id. 62. This court has applied this general rule or principle of law to the specific case of surface waters flowing or carried through a drainage ditch, and has asserted the principle of non-liability for interference therewith, in a recent case in which no opinion was written in this court, nor in the Appellate Division, the case being Byrnes v. State of New York, affd., 189 App. Div. 923. A motion by claimant for leave to appeal was denied by the Court of Appeals. This claim, therefore, should be dismissed. Ackerson, P. J., and Webb, J., concur. Claim dismissed.