Opinion
November 28, 1967
Appeal by the plaintiff from an order and judgment of the Supreme Court, County of Fulton, confirming the Referee's report and dismissing the complaint, with costs and disbursements, and also from the granting of separate bills of costs to the defendants. The action was commenced by the plaintiff for money damages resulting from the flooding of her property and an injunction requiring the defendants to cease casting waters upon her property. The record shows and the Referee found that the surface water flowing down Fon Clair Street in the defendant city would flow from the street onto and over a blacktopped area in front of the defendants Prestons' residence and then on to her property, causing damage to her sidewalk and building foundation. The Preston premises immediately adjoined the plaintiff's premises on the easterly side of Fon Clair Street, which street sloped uphill in a southerly direction past both such premises and until it intersected with Clinton Street. Fon Clair Street also sloped easterly or toward the premises of the Prestons and plaintiff. In or about the year 1955 one Hauser, the then owner of the Preston premises, amesited a substantial part of the area between the sidewalk and the curb line of Fon Clair Street in front of the Preston premises. Thereafter, the city placed blacktop in the gutter-line in front of the area amesited in front of the Preston premises and leveled it off. Both before and after the blacktopping by Hauser and the city, the water flowed down Fon Clair Street and across the blacktopped area on the Preston property and then onto the plaintiff's premises. The Referee specifically found that the "water from the east gutter of Fon Clair Street runs across the blacktop area". The blacktopping in front of the Preston property by Hauser did not affect any change in the contour of the land and it appears on this record that it was for a reasonable purpose and use and the plaintiff was correctly found to have no cause of action against the Prestons. The testimony and pictures introduced as exhibits in the present record fail to show what the nature of the gutter-line in front of the Preston premises was prior to the addition of blacktop material by the city and to what extent, if at all, the work of the city increased the flow of water on the plaintiff's premises. Whether the installation of a curb or other device along Fon Clair Street would alleviate the problem depicted in the present situation will no doubt be considered by the city, but the present record does not substantiate any cause of action against it. Order and judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in a memorandum by Herlihy, J.