Wickham v. Lehigh Valley Railroad — 85 A.D. 182

Majority

p. 182

Mortier L. Wickham, Respondent, v. Lehigh Valley Railroad Company, Appellant.

Headnote

Railroad company — liability of, for flooding land by a change in the course of surface water caused by its embankment'—competency, as evidence, of a letter written by one signing as superintendent of the railroad and having its name printed at the top.

In an action brought against the Lehigh Valley Railroad Company to recover damages resulting from the flooding and washing out of the plaintiff’s vineyard and orchard, it appeared that the plaintiff’s farm and the defendant’s railroad embankment were upon a hillside, the farmbéing below the embankment; that prior to the construction of the railroad, the surface water worked gradually down from, the hillside toward the plaintiff’s premises and found its ■ way through a natural ravine into a lake; that in the construction of the railroad the defendant conducted the surface water from the hillside above the embankment along the upper side of such embankment through a waterway under its tracks into a small ditch which ran through intervening lands to a highway adjacent to the plaintiff's premises and thence along the highway to the ravine.

p. 183

Prior to the construction of the railroad embankment the ditch was sufficient to carry off all of the surface water which percolated into it, but' after the construction of the railroad embankment the increased volume of water diverted into the ditch enlarged its size very greatly and on one occasion an overflow occurred which caused serious damages to the plaintiff’s premises. The sluice-way, by which the water was carried across the highway, was constructed by the railroad company in conj unction with, or by the acquiescence of, the highway commissioner.

Held, that the railroad company was liable for the damages caused by the overflow;

That the authority conferred on a railroad corporation to construct and maintain its road does not authorize it to commit a nuisance to the injury of an individual, although the construction and operation of the railroad cannot be accomplished without such act;

That a letter written to the plaintiff in reference to the injury done by the overflow, bearing the printed heading, “ Lehigh Valley Railroad * * * Office of ■ the Superintendent * * * O.O. Esser, Superintendent,” and signed, “O. O. Esser, Superintendent,” was not admissible, in the absence of proof that Esser actually was the superintendent of the railroad company and was authorized to act in its behalf.

Appeal by the defendant, the Lehigh Valley Bailroad Company, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered in the office óf the clerk of the county of Schuyler on the 3d day of February, 1902, upon the verdict of a jury, and also from an order, bearing date the 23d day of January, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

By mam, M. Bass and Martin Oa/rey, for the appellant.

Waldo F. Bishop, for the respondent.

The action was originally brought in Justice’s Court, where judgment was rendered against the defendant, whereupon an appeal was taken to the County Court of Schuyler county, and a new trial demanded.

The action was brought by the plaintiff to recover damages for flooding and washing out his vineyard and orchard, caused, as was claimed, by the defendant’s collecting in an artificial channel, from surrounding lands, an unusual quantity of surface water and discharging it upon plaintiff’s premises.

p. 184

The plaintiff’s farm and orchard and the defendant’s railway embankments were upon a hillside. The plaintiff’s premises were situated on the slope below the defendant’s railway embankment. The defendant constructed its railway in 1890, and the testimony shows that prior to that time the surface water worked gradually from the hillside down towards plaintiff’s premises, and found its. way through a' natural ravine into Cayuga lake. In the construction of its railway the defendant turned the surface water from the hillside above, along the upper sides of its embankment, throtigh a. waterway made under its tracks, into a small ditch which ran through intervening lands to and across the highway adjacent to-plaintiff’s premises, and thence along the highway for a short distance to the ravine. This ditch had been sufficient to carry off all of the surface water which percolated to it prior to the construction of the railway embankment. After the surface water from the surrounding territory, had been diverted by the defendant to this ditch, the increased volume of water enlarged the size of the ditch .very greatly, and in Hovember, 1900, the overflow caused serious damage to the plaintiff’s premises. The water was carried under the high- • way by a sluiceway which the defendant had assumed to construct in conjunction with, or by the acquiescence of, the highway commissioner.

The plaintiff’s premises were not adjacent to the defendant’s railway, and the defendant contended that it placed the waterway, which is also used as a cattle pass, in the place where it did at the-direction of the owner of. the lands on each side of its right of way, and, therefore, was not responsible for any damage that might occur by reason of the collection and discharge of water upon premises-below. The defendant, also contends that because it is a railway corporation, it was not liable for the collection and discharge of unusual quantities of surface water unless it did it in a negligent and unskillful manner.

•On the facts which appear we think the defendant had no right to collect surface water in unusual quantities from its lands and lands of others into an artificial channel and discharge it upon the lands of the plaintiff. An indi vidua! would not have that right, nor does a municipal corporation. (Noonan v. City of Albany, 79 N. Y. 470 .)

p. 185

The authority given to a railway corporation to construct and maintain its road does not confer license upon it to commit a nuisance to the injury of an individual, although the construction and operation of the road cannot be accomplished without such act. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10 ; Booth v. R., W. & O. T. R. R. Co., 140 id. 267.) Drainage is a necessity to the preservation of a roadbed; but a railway corporation cannot, by artificial means, interfere with a natural flow of water to serve its own purposes, unless it sees to it that it is done in such a way as not to unnecessarily do an injury to another. (Mitchell v. N. Y., L. E. & W. R. R. Co., 36 Hun, 177 ; Drake v. N. Y. L. & W. R. Co., 75 id. 422; Deigleman v. N. Y., L. & W. R. Co., 12 N. Y. Supp. 83 .) The construction and keeping open of the sluice-way was the means which the defendant took to carry the water . which it had collected, away from the plaintiff’s premises. The action of the water had very greatly enlarged the original ditch, and it became the defendant’s duty to provide means by a sluiceway, or in some other manner, to carry the water away from plaintiff’s premises into its natural channel to the lake.

But there were errors committed upon the trial which demand a reversal of the judgment.

The plaintiff was permitted, over the defendant’s objection, to introduce in evidence a letter purporting to be written to the plaintiff by O. O. Esser in December, following the overflow of his lands. This letter was as follows : .

“ Lehigh Valley Railroad.

“ Pa. and y. Y. Division.

“ Office of the Superintendent,

“ Sayre, Pa., Becemher Zth, 190Ó.

“ O. O. Esser, Superintendent.

“ Subject : Damage to Vineyard.

“ Mr. M. L. Wickham, Hector, y, Y.:

“ Dear Sir.— I have your letter of the 3d inst. with reference to the creek at Fenton’s siding becoming clogged at the heavy rain, which caused it to overflow its banks, thereby damaging your vineyard, and in reply would say that I will have the matter attended to as soon as possible. Yours truly, .

“ O. O. ESSER, Superintendents

p. 186

There was no proof that Esser was the superintendent of the defendant. There was the printed heading to be sure and the signature with the addition of the word “ superintendent.” But this did not prove that he was the superintendent of the defendant or had any authority to act in the matter.

The objection to the admission of the letter was that it was incompetent and immaterial and could not in any manner bind the defendant. After the letter was received a motion- was made to strike it from the record on the same grounds, which was denied, to both of which rulings the defendant duly excepted.

The jury may very well have. interpreted the letter as an admission by the defendant that it was liable for the damage caused to the plaintiff’s vineyard and that his claim would soon be settled. Even if the letter was admissible as an admission by an officer of the defendant after the damage had occurred, which is doubtful, it certainly was not permissible to receive it in evidence until proof had been offered as to who Esser was and that he was authorized to act in behalf of the defendant corporation. (Alexander v. Cauldwell, 83 N. Y. 480 .) In an action against a town for injuries alleged to have been caused by the negligence of the highway commissioner, it is not competent to prove conversations of the plaintiff with' the highway commissioner or with the members of the town board in relation to a settlement. (Davis v. Town of Rochester, 49 N. Y. St. Repr. 533 .)

It being necessary because of this error to reverse the judgment and grant a new trial it is unnecessary to consider further exceptions urged by the defendant.

The judgment and order should be reversed and a new trial granted, with costs- to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Cases cited

Noonan v. City of Albany 79 N. Y. 470 N.Y. 1880-01-13 p. 184
Cogswell v. New York, New Haven & Hartford Railroad 103 N. Y. 10 N.Y. 1886-10-05 p. 185
Alexander v. Cauldwell 83 N. Y. 480 N.Y. 1881-01-18 p. 186