p. 23In such a case if the sewer and drain had proved adequate up to the time of the overflow to carry away the surface water and. sewage, the very fact of the occurrence of the overflow tends to show that at that • time the sewer had become in some way defective or obstructed, and the rule res ipsa loquitur applies, calling upon the municipal corporation to explain the difficulty with the sewer on the particular occasion, and show that it was not responsible for that difficulty.
Where a bill of particulars accompanying a complaint in an action brought to recover damages resulting from the discharge of water and sewage on the plaintiffs’ lands apprises the defendant of every item of damage which is sought to be recovered, a variance between the number of acres as stated in the complaint and the number proved upon the trial is immaterial.
Appeal "by the defendant, The City of Brooklyn, from a final judgment of the Supreme Court in favor of' the plaintiffs, entered in the office of the clerk' of the county of Kings on the 20th day of July, 1896, upon the report of a referee, and also from an interlocutory judgment, entered in said clerk’s office on the 22d day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.
-Rollin A. Breckinridge, for the appellant.
Oharles M- Earle, for the respondents.
This action is to recover damages for the discharge of water and sewage on the plaintiffs’ lands and the destruction of their growing crops. The city constructed a number of sewers in a large tract of territory. The sewers emptied into a larger sewer on New Jersey avenue, which constituted the common outlet of the entire district. This sewer, was not extended to the waters of the bay, but at its termination on the land a pit was excavated and a small drain dug from that pit to the bay to carry off the overflow. At the time of the overflow of the plaintiffs’ lands, there was a very heavy fall of rain, but the sewer commenced to discharge its contents on that land before the fall of rain had become exceptional. The Special Term held the defendant liable for the injury caused to the plaintiffs’ property, and an interlocutory judgment was entered directing a reference to ascertain the amount of the damages. On the report of the referee, a final judgment was entered. From the interlocutory and final judgments this appeal is taken.
p. 24There is very little.to be said about this ease. If it be assumed that, by grading the streets and constructing the sewers, the city did not change the natural direction for the flow of surface water from the area of the sewered district, it would not relieve the defendant from liability. In the natural state of the land, the surface water would flow dispersed over a large area on to the lower land beneath. The sewers, however, collected all this surface water into a single stream or body, and then it was cast upon the plaintiffs' land. This act was beyond its right and was a trespass. In
Barkley v.
Wileox (
86 N. Y. 140 ) it was held that the owner of the higher land cannot collect' the surface water falling on the land into channels and discharge it upon the land beneath. It was stated: “ This, is alike the rule of the civil and common law.” It is exactly this which has been done in this case by the defendant. Moreover, the defendant has not only cast upon the plaintiffs’ land the surface water, but the sewage of the district. There cannot be even plausible contention in justification of this-act: ' In this respect, the case is entirely analogous to that of
Noonan v.
City of Albany .(
79 N. Y. 470 ). The judgment can also be well supported on the ground upon which it was placed by the court below, that of negligence. The defendant insists that, previous to the time of the occurrence of the overflow, the subject of this suit, the sewer and drain had proved adequate to carry away the surface water and sewage. If this be so, the' fact that on this occasion the sewer overflowed the plaintiffs’ land would tend to show that at that time the drain had become in some way defective or obstructed. We think the rule
res ipsa loquitur applies. The defendant was. called upon to explain what was the trouble or difficulty with the sewer on this particular occasion, and that it was not responsible for that difficulty. It wholly failed to give any sufficient explanation upon the subject.
, The award of damages seems large when we consider the small tract under cultivation (some six acres), but it appears to be entirely justified by the evidence. The plaintiffs were not restricted to prov-. ing the value of their crops on fivé acres, because the complaint stated that area as the contents of their land. The variance between the contents as stated in the. complaint and the actual contents as shown by the evidence was immaterial. A bill 'of particulars accompanied the complaint and apprised the defendant, in detail,
p. 25of every item of damage which the plaintiffs sought to recover. The defendant was, therefore, no wise prejudiced or misled by the. variance as to the quantity of land occupied by the plaintiffs.
The interlocutory and final judgments appealed from should be affirmed, with costs.
All concurred.
Interlocutory and final judgments affirmed, with costs.