Wallace v. Drew , 59 Barb. 413 ( 1871 )

By the Court, Johnson, J.

It is well settled, that every person through whose land a stream of water flows, may construct embankments and other guards on the bank to prevent the stream washing the bank away and overflowing and injuring his land. But in doing this, he must be careful so to construct them as not to throw the water upon his neighbor’s lands, where it would not otherwise go, in ordinary floods. If he does, he will be liable for the injury. This is upon the familiar principle that a person must so use his own as not to injure another. But this rule does not apply to floods altogether extraordinary and unusual. (Angell on Water Courses, § 334.)

The referee has found, and I think upon evidence which warrants such finding, that the banks and erections made by the defendants to guard the bank and prevent the waters of the stream from injuring their own premises, have caused the waters of the creek to flow northward and upon the plaintiff’s lands, where they did not belong,- and were not accustomed to flow, and where they would not have gone but for these guards and erections; Were this the only question in the case, I should be unable to find any reason for interfering with the judgment.

But the damages given by the referee seem exceedingly large, in any view of the facts. Only about one eighth of an acre of land was washed out by the action of the water, and this, one witness testifies, injured the whole farm $40 per acre, and reduced its value to that extent. Another witness testifies that in his opinion the premises were injured $50 per acre. This is the testimony as to the damage, on the plaintiff’s side. ¡Neither witness gives any grounds or reasons for this extraordinary estimate. On the other side five witnesses are examined in regard to the damage, and they put the entire damage at from $30 to $80. This is a wide difference, and as it was all a matter of opinion, care should be taken to see that the damages are not excessive. Without some explanation, it seems incredible that the injury to the other lands could have been so great.

But there is a more serious difficulty on this question of damages. It appears, without any dispute or contradiction, that all the water which flowed upon the plaintiff’s premises, on that occasion, did not come from the branch of the creek which flowed through the defendants’ lands, or by means of their guards and erections. Just above the defendants’ premises, the stream divides into two branches, the south branch. flowing through the defendants’.lands, and. the north branch through the lands of one Milks, which adjoin the plaintiff’s lands on the south. The waters from the defendants’ branch of this creek could not possibly get to the plaintiff's land without running nearly at right angles across the north branch of this creek. It appears that the water runs in these two branches in about equal proportions, and that some years ago a dike was put in above Jones’ bridge in order to effect an equal division of the volume of water in the two streams. The water, when it left the defendants’ premises, on the occasion of the injury complained of, ran north down the Little Valley road, which road crossed the north branch just south of the plaintiff’s premises. Below this road Milks had put a tight fence entirely across this north branch, which had the effect to throw the water of this north branch upon the plaintiff, and . also to prevent the water coming from the defendants’ branch from passing off down that branch instead of crossing and flowing over upon the plaintiff’s land. And so it appears, without any dispute, that this obstruction of Milks in the channel of the north branch, caused the waters of that branch as well as of the defendants’ branch, to flow at the same time upon the plaintiff, and both streams contributed to the injury. This Milk's testifies to, and it is nowhere disputed. This being so, the defendants should not be mulcted for the whole damage. The proximate cause of the injury was at least as much, if not more, the obstruction of Milks across the north branch as the defendants’ erections. Where the animals of different owners injure and destroy the property of another, the owner of each is only liable for the injury done by his animals. (Partenheimer v. Van Order, 20 Barb. 479. Van Steenburgh v. Tobias, 17 Wend. 562. Auchmuty v. Ham, 1 Denio, 495.) It would be manifestly unjust to make the defendants respond for the portion of the injury and damage occasioned by the wrongful act of Milks, who was in no way connected with them in act or interest, and whose obstruction was wholly upon his own land, and upon another stream.

[Fourth Department, General Term, at Rochester, March 6, 1871.

I am of the opinion, therefore, that the judgment should be reversed, and a new trial ordered, with costs to abide the event, and the order of reference vacated.

Hew trial granted.

Mullin, P, J., and Johnson and Talcott, Justices.]