Majority
p. 113Isaac B. Lefurgy, Resp’t, v. The N. Y. and Northern R. R. Co., App’lts. (Supreme Court, General Term, Second Department, Filed December 10, 1888.)
Headnote
1. Railroad companies—Water course—Diversion of—Liability of SUCCESSOR.Where a railroad company has succeeded to the right and property of another company, it muy be compelled by mandamus to restore waters of a stream diverted by the former company for purposes of construction to its original channel.
2. Same—Limitation op action.
Such action is not barred by the lapse of six years, especially where it appears that the change in the bed of the stream did not take place at once upon the excavation of the new channel, the old channel having been, left to fill up in the course of time.
Appeal from an order of judgment entered after a trial before this court, and a jury at a circuit court in Weschester county.
This is a special proceeding begun by affidavit and motion upon notice for a writ of mandamus to compel the defendant to restore the waters of the Neperan or Sawmill river to their ancient bed or channel, at, through and along relator’s farm of land in the town of Greenburgh, Weschester county, N. Y.; which said waters had been diverted therefrom by the defendant and its predecessor, the New York City and Northern Eailroad Company. The defendant opposed the motion by- affidavit, but the court (Barnard, J.) allowed an alternative writ at special term held at Poughkeepsie on January 28, 1888, and an order to that effect was entered.
From this order no appeal was taken, and an alternative writ was duly issued under the seal of the court. To this, writ the defendant made a return as commanded therein, admitting its corporate existence, that the notice required by law had been duly served on it before application for the writ, and that it had not restored the waters of said river: and alleging that the diversion was done by its predecessor corporation, the New York City and Northern E. E.; that the cause of action did not accrue within six years, and denying that it ever had been in possession or control of said railroad, but that one Joel B. Erhardt (the president of defendant) was in posession as receiver of its predecessor.
The issues of fact thus raised were duly brought to trial at the Weschester circuit on June 5th. 1888, before Mr. Justice Barnard and a jury, as provided in sections 2082-3-4 of the Code, and resulted in a verdict for relator by direction of the court, upon which a judgment was entered
p. 114
directing the issuance of a peremptory writ of mandamus to defendant commanding it forthwith to remove the obstructions in the ancient bed or channel of said river and restore the waters thereof, as prayed in said alternative writ. '
No motion for a new trial, and .no order denying a motion for a new trial, has been made or entered; and the appeal was taken from the judgment only.
Upon the trial it was shown plaintiff had been the owner and occupant of the farm of land in question since 1862, and that the Sawmill river ran along its eastern boundary for fifty years. _ That a railroad was constructed which crossed the said river by two bridges within a short distance of each other on relator’s land, by means of which the waters of said river flowed uninterruptedly in their ancient bed or channel for about ten years thereafter, when the company which built the road, the New York City and Northern Railroad, by its officers and employees, dug a new channel for said river on the lands of one Odell, and thereby diverted the waters of said river from its ancient bed, and away from relator’s land, somewhere between 1879 and 1884, and filled in the bridgeways over said river by rip-rapping, etc., which diversion is yet maintained by defendant. Relator appears to have forbidden the diversion when first attempted, and it was finally accomplished unbeknown to him. The defendant corporation was formed out of the bondholders of the New York City and Northern Railroad, and is simply a reorganization of that company under a new name. This reorganization was effected on October 10, 18-87, and thereafter their cars and tickets were marked with the name of the new corporation, and their time table of trains shows that they were operating the road on November 20, 1887, before these proceedings were begun.
Holmes & Adams, for app’lts; George H. Adams,, of counsel; Henderson <& Treadwell, for resp’t; L. B. Tread-well, of counsel.
We regard Brown v. Cayuga Railroad ( 12 N. Y., 486 ) as an authority that defendants may be held responsible for injuries now taking place, though the ■original acts from which these injuries spring were performed by their predecessors in title.
If the duty which devolves upon a railway company to restore and maintain a-stream in its original bed, after it has been temporarily diverted for purposes of construction, could be avoided by a transfer of ownership, the rights of land owners would be much imperilled. We think the duty is transfei’red with the property.
p. 115
The statute of limitations is invoked by defendants. It is argued that as the digging which at last resulted in changing the river bed was done in 1880, more than six years before this action was begun, the cause of action arose in 1880 and is barred by the statute. It appears that the change in the bed of the stream did not take place at once, upon the excavation of the new channel. The filling up and final obliteration of the ancient channel was a work of time and is not shown to have taken place more than six years before action brought. Even did that fact appear, it may well be doubted whether the statute would apply, but that question need not be determined.
Judgment affirmed, with costs.
Dykman, J., concurs.