Opinion
November, 1904.
Francis E. Wood, for the appellant.
George N. Orcutt, for the respondent.
The plaintiff is a life tenant, and in common with others, whose interest in the present cause of action she has acquired, is the owner in fee of a farm of about 200 acres in the town of Erwin, county of Steuben. She has commenced this action to recover damages caused by the overflowage of water which she claims was diverted from its natural channel by the defendant.
The defendant's railroad is constructed through the farm of the plaintiff, with an embankment of about sixteen feet in height. Tioga river, which is about one-third of a mile south of the railroad, is the southerly boundary of the plaintiff's farm, ninety-four acres of which are between the river and the railroad. The buildings are upon the southerly side of this part of the farm and the highway leading from Corning to Addison passes through this tract. The farm is level, tillable land. The valley through which the river flows is a mile in width.
A short distance west of the plaintiff's farm the Tioga river makes a sharp turn to the south and at this point it unites with the Canisteo river, running then eastwardly. In times of high water at the confluence of these rivers the water has overflowed its banks. The plaintiff's contention is that this water ran in a natural channel in a northeasterly direction across what is now the defendant's right of way, then spread out over a marshy tract of land and finally joined either with the river again or with the Cohocton river.
In December, 1901, and again in March following, in times of an extraordinary freshet, the river overflowed its banks, washing away the soil and fences from the farm, flooding the buildings and destroying the hay, grain, tobacco and other contents of the buildings, the damages whereof were assessed by the jury at $3,500.
The railroad embankment was constructed by the defendant's predecessors in title about 1850. It then constructed a culvert under its tracks at the place where the plaintiff contends the natural channel for the overflowage of water exists and the same was maintained until 1858. The culvert was then removed and filled in with earth and the embankment has been since continued in that condition uninterruptedly.
The alleged natural channel is a depression in the soil varying in depth from two to five feet and in width from one hundred and fifty to over three hundred feet. There are no defined banks to this sag and as far back as the memory of man runneth it has been tilled and cultivated and crops raised the same as on any other portion of the farm of the plaintiff. There was no break in the sod along this depression and nothing to distinguish it from the adjacent soil. We think it cannot be called a natural channel or a natural stream of water. The elements of a watercourse are definite banks and with an obvious bed or channel showing the presence of running water at times anyway. As was said in Barkley v. Wilcox ( 86 N.Y. 140, 143): "A natural watercourse is a natural stream, flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a watercourse that the flow should be uniform or uninterrupted. The other elements existing, a stream does not lose the character of a natural watercourse, because in times of drought the flow may be diminished, or temporarily suspended. It is sufficient if it is usually a stream of running water."
In Farnham on Waters and Water Rights (at p. 1555) it is said: "It cannot be contended that a depression or natural drainway which merely carries the water in rainy seasons is a watercourse. It presents none of the characteristics of a watercourse, except that at times water flows in it." Of like import is Jeffers v. Jeffers ( 107 N.Y. 650).
The significant circumstance establishing that this depression was not a natural watercourse is that for more than forty years prior to the flood which caused the damages in question not more than three or four times has the overflow of the river run along it. A channel which is the bed of a stream implies that water runs in it at other times than when there is an unusual flood. A creek or river flowing through a valley is apt to overflow in times of high water. The overflowing water naturally seeks the depressions and follows them along. This rare use does not constitute these uneven irregular depressions a natural channel for water to run in so that it partakes of the characteristics of a watercourse as a stream of running water.
The cases upon which the appellant's counsel relies to uphold this branch of her cause of action are readily distinguishable. In Mundy v. N.Y., L.E. W.R.R. Co. (75 Hun, 479) the flood channel had well-defined banks and the defendant maintained a culvert which was insufficient and was not in line with the channel. Drake v. N.Y., L. W.R. Co. (75 Hun, 422) is a kindred case to the one last cited in its controlling features.
There being no well-defined channel within the legal definition of that term this overflowage comes within the rules applicable to surface water in obstructing which no liability is ordinarily created. ( Egener v. N.Y. Rockaway Beach R. Co., 3 App. Div. 157; Conhocton Stone Road Co. v. B., N.Y. E.R.R. Co., 3 Hun, 523, 528.)
But if the plaintiff ever had a cause of action the prescriptive period has long since erected a barrier to it. The culvert was removed in 1858, and the embankment has continued to stem and deflect the water overflowing the river banks since that time. At long intervals, notably in 1865 and in 1899, the farm was flooded with this water. The cause of action matured upon the first obstruction of the channel. That act constituted an interference with the rights of the owner if any there were and it was an open notorious assertion of dominion in hostility to her claim. Actual damages need not follow the usurpation immediately to make a cause of action. If the natural result of the dispossession was injury to the plaintiff's property she could have sued at once to enjoin the continuance of the obstruction. But in this case the proof indisputably shows that water overflowed and ran along this depression and deluged the farm by reason of the embankment more than thirty-five years before this action was commenced. Clearly it is too late for her now to maintain her cause of action for damages.
The judgment should be affirmed, with costs.
All concurred, except HISCOCK, J., not sitting.
Judgment affirmed, with costs.