Hyperlawhypertext legal database Searing v. Village of Saratoga Springs 46 N.Y. Sup. Ct. 307

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Searing v. Village of Saratoga Springs

46 N.Y. Sup. Ct. 307 Court N.Y. Gen. Term English

Judges Present — Learned, P. J., and Peokham, J.

Delivered by Peckiiam, J.:

Contents

Majority

p. 307
CAROLINE M. H. SEARING, Appellant, v. THE VILLA GE OF SARATOGA SPRINGS, Respondent.

Headnote

Discharge of sewage on private property — when the owner cannot claim damages if the sewer was constructed with her assent.
This action was brought against the defendant, a village, by the plaintiff to recover damages sustained by her from sewage which entered upon her lot from an old sewer in one of the streets, through a sewer or pipe built on her own land by the defendant with her knowledge and consent, if not at her request.
Held, that she could not maintain the action.
It seems, that if she did not like to have the sewer remain on her land she could take it up, and thereafter, if any sewage were illegally or improperly thrown upon her land by the agents of the defendant, she could recover the damages which she might sustain therefrom.
Appeal from a judgment in favor of the defendant, entered upon the trial of this action at the Saratoga County Special Term.
John R. Putnam, for the appellant.
Charles S. Lester, for the respondent.

The plaintiff claims to recover damages sustained by her from sewage which enters upon her lot from the old sewer in Walworth street, through a sewer or pipe built on her own land by defendant, with her knowledge and assent, if not at her request. The plaintiff claims the sewage comes on her land through a defect in the pipe laid cn it by defendant, and she says that even without the sewer thus laid, the sewage from the old Walworth street sewer would run on her land and damage her. But her cause of complaint now is that sewage coming down the Walworth street sewer is dumped upon her land by reason of the pipe made on it by defendant. As this was done with her assent, if not at her suggestion, the principle comes within the cases decided by this court in McCaffrey v. City of Albany ( 11 Hun, 613 ), and' by the Court of Appeals in Matter of Rhinelander ( 68 N. Y., 105 ). If the plaintiff do not like the sewer as it remains on her land, she can take it up, and thereafter, if any sewage be illegally or improperly thrown

p. 308
upon her land by the agents of defendant, she can then probably recover the damages which she may sustain.

The judgment should be affirmed, with costs.

Present — Learned, P. J., and Peokham, J.

Judgment affirmed, with costs.