Burmaster v. State

Headnote

Burmaster v. State of New York, 186 App. Div. 131 , affirmed.

Appeal, by permission, from a judgment of the Appellate •Division of the Supreme Court in the third judicial department, entered January 28,1919, affirming a judgment of the Court of Claims dismissing the plaintiff’s claim for damages to his real property caused by the construction and maintenance by the state of New York of a dike along the highway leading from the Cattaraugus Indian Reservation to the village of Irving, N. Y., causing the waters of Cattaraugus creek, during flood time, to be diverted upon the land of the claimant. The Appellate Division held: “ This is not a case of collecting surface waters and precipitating them upon a neighbor; it is merely the exercise of a right of the state so to construct its highways that they will not be destroyed by waters

flowing upon them from the premises of the claimant; and we think the Court of Claims was bound, under the law, to decline to make an award in this case.”