p. 66That the defendants were guilty of gross negligence, in causing said sewer to be constructed without also providing for the egress of the water of said stream.
Second—As matter of law; that the defendants have been guilty of gross negligence in the premises, and are legally responsible to the plaintiff for his damages sustained as aforesaid, and that the plaintiff is entitled to a judgment against said defendants, for the said sum of $300, besides costs.
From this judgment defendants appealed to the general term.
Richa/rd O'Gorman, for appellants, cited The Governor and Company v. Meredith, 4 Durnf. and East, 795; Hall v. Smith, 2 Bing. 156; Fulton v. Clark, 6 Taunton; Wilson v. The Mayor, 1 Denio, 595 ; Radcliff v. The Mayor, 4 N. T. 195; Mills v. The City of Brooklyn, 32 N. Y. 496 .
John Mapes, for respondent,
cited
Kavanagh v. City of Brooklyn, 38 Barb. 232 ;
Rochester White Lead Co. v.
Rochester 3 N. Y. 463 ;
Conrad v.
Ithaca, 16 N. Y. 159 ;
West v.
Brockport, 16
Id. 161 ;
Storrs v.
Utica, 17
Id. 104;
Barton v.
Syracuse, 36
Id. 54;
Lockwood v.
Mayor, &c., of N. Y., 2 Hilton, 66.
By the Court.
The defendants determined to construct, and did construct, a sewer in Seventy-fourth street. In the course of the work, a natural stream which ran from the Central Park to Avenue A, and thence to the river, was dammed up by the contractor in order to complete the sewer, as required by his agreement with the defendants. Before the sewer was built, the waters of the stream found outlets at different places. The stream ran across the Second avenue, through an archway, and the line of it as compared with the line of the sewer was a direct line. It was three feet lower, however, than the sewer where it entered upon the north side of Seventy-fourth street. The effect of laying the sewer was to create a pond which continued to exist up to the time this action was tried, and the result to the plaintiff was the inunda
p. 67tion of his land and the loss of his crops. The judge presiding at trial term found that the plaintiff suffered damage which was caused by the construction of the sewer already mentioned, and particularly by defendants neglecting to provide egress for the stream of water also,' already mentioned, which was dammed back upon plaintiff’s grounds by the sewer. The judge also found that the defendants were guilty of gross negligence, in fact and in law, in causing the sewer to be constructed without also providing for the egress of the water of the stream, and awarded the damages which he thought the plaintiff had sustained. It was not disputed upon the trial that a culvert could have been built below the line of the sewer, which would have carried off the water. Upon these facts can this action be maintained? Were the defendants bound to provide for the egress of the water of a natural stream, the interruption of the course of which injuriously affected the_ property of the plaintiff? The cases bearing upon this subject seem to establish these rules :
1. That when the act done by a municipal corporation is one of sovereignty, or judicial in its character, no action can be maintained against them for its results.
2. Where the act done becomes ministerial, in consequence of its performance having been determined upon by the sovereign power of the corporation, no action can be maintained against them for damages sustained unless the thing done is negligently or unskillfully done; and,
8. When an act is performed, and it is one which imposes future obligations upon the corporation, or in consequence of its having been done, future obligations of a ministerial character are assumed, such as to keep a sewer in repair, an action may be maintained for damages consequent upon the omission to perform that duty (Bailey v. Mayor, &c., 3 Hill, 531 ; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463 ; Radcliff v. Mayor, &c., 4 N. Y. 195 ; Mills v. City of Brooklyn, 32 N. Y. 489 ; Wilson v. Mayor, &c., 1 Denio, 595 ; Barton v. City of Syracuse, 36 N. Y. 54 ; Conrad v. Trustees of the Village of Ithaca, 16 N. Y. 158 ). There are also other actions for omissions of duty clearly imposed'upon corporations
p. 68to which it is not considered necessary here to refer in detail. The defendants had the power to direct the construction of the sewer, its dimensions, general character, and precise locality. They did so, and the contractor proceeded to perform the contract he had made. They did not assail his fidelity, but averred that “ if any damage was caused the plaintiff, it resulted necessarily from making the improvement, and that the defendants were, therefore, not liable. It cannot be questioned that the-defendants had the power to do whatever was necessary to accomplish the object in view, solus popvli est suprema lex, and therefore had the right to dam up the waters of the stream as long as it was necessary to do so in order to complete the sewer, but if it were not necessary, and it could have been avoided by ordinary care,, the defendants were bound to exercise such care. To ■ that extent, however, and to that extent only, they were free from restraint or liability. They had not the right to permanently arrest the course of a natural stream, and as the result thereof to throw back its waters upon the-plaintiff’s land, unless it was inevitable. - It would, in such a case, necessarily result from making the improvement, and perhaps justify the defence assumed in this case. There is nothing, however, in this case to show that any such necessity existed. It appears, on the contrary, that the waters could have been carried off, as already stated, and the omission to make a. culvert for that purpose—thus restoring egress—was negligence, and negligence in the performance of a ministerial act. And it may be added here, with great propriety, that the obligation to make the culvert was increased from the fact that neither the plaintiff nor the owner of the land would, have-the right to build it under the sewer without the permission of the defendants. The cases relating to water courses do not furnish any illustrations of the precise responsibilities of corporations in a .case like this. They relate to water courses interrupted, or interfered with, or obstructed, on which mill dams are erected, and the waters of which are employed for ■ purposes of commerce or irrigation. They do not advise us of ■ the power which corporations possess in reference to natural streams in the performance of public, duties, which may be re
p. 69garded as public benefits. The general principle, however, of care and skill in the exercise of municipal authority applies with equal force to this case as to others in which negligence and want of skill forms the basis of liability. In the case of
Banon de Craig v.
Corporation of Baltimore, 2 American Jurist, 203 (No. 4), a well considered case, the defendants were held liable for having, in the exercise of their municipal powers, diverted certain streams from their natural channels to a point near the plaintiffs’ wharf, on navigable water, within the harbor and city of Baltimore, to which point a large ' deposit of sand and earth was carried down by the streams, and by which the value of the wharf was injuriously affected. The decision seems to rest upon the doctrine that the corporation had no power to devote private property to public use, or to deprive an individual of his property without indemnity; and Oh. J. Archer said, “ Has there been such a deprivation here ? There has, certainly, been what is equivalent to it. The plaintiff has his land, it is true, but he has been deprived of the profits growing out of its tenure, and that by the act of the defendants.” And again,
“ if the corporation had before the right to divert water courses and natural drains, to subserve the public benefit, that is, its own benefit, it will still possess it, subject to the just limitation, that it pays for the deprivation, whether immediate or consequential. These views are in accord with the result arrived at on this appeal, and commend themselves as just interpretations of the relations existing between municipal corporations and the citizen subject to their power.
The f^cts and circumstances of this action differ from those in Wilson v. The Mayor, &c., and Radcliff v. The Mayor &c. (supra). The injuries on those cases were incidental to the proper exercise of the power possessed,- and were the natural and necessary consequences of making the improvement, and making it properly and without negligence or unskillfulness. The defendants having, in those cases, employed their authority rightfully in sovereignty and ministerially, the plaintiff’s injuries were embraced in the class to which the maxim damnum absque injuria is applied. The judgment against them in this action was .properly rendered, and they must respond. The
p. 70negligence charged upon them brings them within the rule as to the liability of corporations declared by the authorities referred to, and renders the conclusion stated imperative.
Judgment affirmed.