Burmaster v. State of New York

4 Citing cases

  1. Alley v. State

    28 A.D.2d 1147 (N.Y. App. Div. 1967)   Cited 1 times

    The trial court dismissed both claims and we think properly so. There are two reasons why the surface water drainage was changed, the taking and filling of the pond and the raising of the elevation of the highway. As to the first, any claim for damages as a result of the taking and filling of the pond were properly recoverable in the prior action and not here (e.g., South Buffalo Ry. Co. v. Kirkover, 176 N.Y. 301). As to any change precipitated by the elevation of the highway, the State clearly had no legal liability (e.g., Fox v. City of New Rochelle, 240 N.Y. 109; Burmaster v. State of New York, 186 App. Div. 131; Gibson v. State of New York, 187 Misc. 931), in the absence of proof that a stream was interfered with ( Drogen Wholesale Elec. Supply Co. v. State of New York, 27 A.D.2d 763), or that additional surface water was channeled or piped onto claimant's property (e.g., Holmes v. State of New York, 32 Misc.2d 1077). We find no merit in claimant's attempt to distinguish these cases because a portion of the construction which caused the change was on property appropriated from him.

  2. Drogen Wholesale Electric Supply, Inc. v. State of New York

    27 A.D.2d 763 (N.Y. App. Div. 1967)   Cited 5 times   1 Legal Analyses

    " There is no doubt that assuming adequate notice, the State is liable where it fails to provide an adequate culvert or other drainage for a stream and its flood waters as to upstream riparian owners. ( Wallace Pond Ice Co. v. State of New York, 259 App. Div. 938. ) In Burmaster v. State of New York ( 186 App. Div. 131) this court held that merely raising the grade of the existing bridge approaches without more does not give rise to an action for damages even though this resulted in flood waters being held back and upon the claimant's property. The State contends that Burmaster v. State of New York ( supra), held that the State was not liable because it was a case of merely obstructing the flow of surface waters, but such is not the case.

  3. Wallace Pond Ice Company, Inc. v. State

    259 App. Div. 938 (N.Y. App. Div. 1940)   Cited 3 times

    The culvert, as a part of the highway, was an interference with the flow of the stream that might normally be anticipated. The case of Burmaster v. State of New York ( 186 App. Div. 131) does not apply. The award does not appear excessive. Judgment unanimously affirmed, with costs.

  4. Brooks v. State of New York

    189 App. Div. 24 (N.Y. App. Div. 1919)

    In this case the part of the highway which actually serves the double purpose is not upon the claimant's land; he is merely an abutter, and the change of his portion of the highway to conform to the remaining grade does not take his property in any sense; it merely makes consequential damages, which are not recoverable in the absence of a statute providing compensation. While the recent case of Burmaster v. State of New York ( 186 App. Div. 131) may be distinguished, it is fundamentally based upon the rule of law announced in Matter of Grade Crossing Comrs. of Buffalo ( supra) and is in harmony with the conclusion here reached. The judgment and order appealed from should be affirmed, with costs.