Beach v. City of Elmira — 34 N.Y. St. Rep. 522

Majority

p. 522

William Beach, Resp’t, v. The City of Elmira, Appl’t.

(Supreme Court, General Term, Fourth Department,

Filed December 6, 1890.)

Headnote

1. Municipal corporations—Nuisance—Sewers.

A municipal corporation has no right to discharge or authorize the dis-, charge of sewage upon private lands or in such a manner as to disturb the owner’s enjoyment of its use, or to interfere with the value of the use of such premises, and where it does so it is liable for the damages caused thereby.

3. Same—Evidence.

A judgment roll in an action between the same parties, involving similar questions of fact and law, is competent as evidence.

Appeal from a judgment entered in Chemung county upon the report of a referee in favor of the plaintiff for dollars

damages. Plaintiff is the owner of a block of stores on the north bank of the Chemung river, between the Chemung river and Water street, in the city of Elmira, and brings this action to recover damages alleged to have been sustained by reason of the defendant’s constructing a sewer known as “ State street sewer,” which discharged the sewage and other accumulation collected therein upon the plaintiff’s premises; and the defendant used the sewer and allowed others to use the sewer to the great injury of the plaintiff.

IT. H. Rockwell, for app’lt; Reynolds, Stanchfield & Collin, for resp’t.

The evidence fully sustains the findings of the referee and the allegations in the complaint to the effect that the plaintiff sustained injuries by reason of the wrongful acts of the defendant. The defendant had no right to discharge or authorize the discharge of sewage upon the lands of the plaintiff, or in such a manner as to disturb his enjoyment of the use, or to interfere

p. 523

with the value of the use of his premises. The wrongs complained of and established by the evidence, and found by the referee, amount to a trespass upon the plaintiff’s lands, and the damages which he has sustained thereby should fall upon the defendant. Clark v. City of Rochester, 43 Hun, 271 ; 5 N. Y. State Rep., 456; Nims v. Mayor, etc., of the City of Troy, 59 N. Y., 500 ; Seifert v. City of Brooklyn, 101 id., 136. The sewer constructed by the defendant was used by various persons for the purpose of draining privies and water-closets; and in Stoddard v. The Village of Saratoga, 22 N. Y. State Rep., 215, it was said by the court that a municipality “may not lawfully convey the foul material thus collected, and throw it on private property.”

(2.) We think the judgment roll in the former action was properly received in evidence. An appeal was taken in that case from the decision made at special term, and the judgment roll sustained. In delivering the opinion of this court in that case, see Beach v. The City of Elmira, 22 Hun, 163 , Learned, P. J., observed: “In the present case, the city has emptied one of its sewers on the plaintiff’s land. That is a direct violation of his right; a continual trespass on his property. And for that the city is liable, just as any private person would be. Bradt v. Albany, 12 N. Y. Sup. Ct. 591 ; Byrnes v. Cohoes, id.; 602; affirmed 67 N. Y., 204 .” We think there is no force in the exception taken to the admission of the judgment roll in evidence. Peck v. Callaghan, 95 N. Y., 73 . In dealing with a somewhat similar question in the case last cited, where a judgment roll had been received in evidence, it was said near the close of the opinion, viz: “ It appears that this was entered in an action in the supreme court between the same parties, and involved many of the questions of fact, and some of the questions of law arising in this controversy. We think it quite clear that the judgment roll was competent evidence either for or against either of the parties thereto in any subsequent litigation, and was, therefore, properly received in evidence.” We see no reason to disturb the allowance of damages.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.

Cases cited

Bradt v. City of Albany 12 N. Y. Sup. Ct. 591 N.Y. Sup. Ct. p. 523