Opinion
June 25, 1965
Appeal from the Court of Claims.
Present — Williams, P.J., Goldman, Henry and Del Vecchio, JJ. [ 41 Misc.2d 137.]
Judgment unanimously reversed on the law, without costs of this appeal to either party, and claim dismissed, without costs. Memorandum: The State appeals from a judgment of the Court of Claims which awarded damages to claimant for injuries caused to her property by an overflow of the waters of Fulmer Creek on January 15, 1962. Liability was predicated upon the failure of the State to remove a rotted log and gravel from underneath the east span of a bridge which the State had taken over in 1959 pursuant to the provisions of section 230 High. of the Highway Law. The evidence shows and the trial court found that the bridge was designed in accordance with good engineering principles and practices. It consisted of two 33-foot spans supported at midstream by a concrete pier. About 10 days before the flood a period of warm weather thawed the ice and snow in the stream and on adjacent lands causing water and broken ice to flow downstream under the bridge into the Mohawk River. Thereafter, on January 7, extremely cold weather froze the water in the stream leaving the channel filled with broken ice from the Mohawk River up through and past the bridge. The whole creek was dammed up with ice as high as its retaining walls and banks. This condition existed until January 15 when there was another thaw causing more water to enter the stream. Ice then started moving downstream. Both spans of the bridge were packed solid with ice and water and ice flowed over the banks of the stream flooding claimant's premises. We find no basis in the record for inferring that the presence of the rotted log and gravel under the east span of the bridge caused the damage to claimant's property, but rather it appears that the damage was caused by the forces of nature.