Opinion
October 26, 1970
Appeal from a judgment in favor of claimants, entered July 31, 1969 upon a decision of the Court of Claims. Claimants own property improved with a residence, barn and half-acre pond fed by a stream which traverses the property and whose source is a catchment basin of some 340 acres through which the State has affected approximately 24 acres in connection with the construction of an interstate highway. In August of 1966, at the height of a prolonged five-year drought, claimants' pond went dry and during the summers of 1967 and 1968 algae covered the pond making it unusable for swimming and other recreation purposes. By August, 1966 there had been some clearing and grubbing by the State in the construction of the interstate highway, a pond and swampy area had been filled in and certain culverts had been installed. Later, during construction, this same stream which passes through claimants' land was diverted and rechanneled and an existing drainage system was improved and supplemented, after which a four-lane concrete pavement was laid. All of this construction took place on the State's property about a mile distant from claimants' property. The flow of water thereafter continued in its original streambed to claimants' property from a point 1,600 feet northerly thereof. Claimants contend that due to the State's highway construction in the catchment area the rate of surface water discharge in the area was increased and its absorption by the soil decreased, so that water no longer has an opportunity to penetrate the ground and raise the percolating base, and maintain a steady flow in the streambed. As a result, during periods of little rainfall there is insufficient surface water causing algae in claimants' pond, and during periods of heavy rainfall the water flows much faster, flushes through the pond over its dam and then stops, causing the water in the pond to become stagnant. The trial court held the State liable for an unreasonable interference with claimants' property rights. It found that as a result of the disturbances in the catchment area by the State's construction of this highway, the water run-off rate after normal rainfalls substantially increased, reflecting that the porosity of the soil and seepage to the water table in the catchment area had been markedly affected. This caused injury to claimants' pond for which the State is liable in damages. Each land owner has the right to divert or change the course of a stream flowing through his land provided he returns it to its ordinary channel before it reaches the land of the lower owner. ( Clinton v. Myers, 46 N.Y. 511, 516.) He will be liable in damages, however, where he willfully changes the course of the stream and causes the water to flow upon the lands of his neighbor. ( Hartshorn v. Chaddock, 135 N.Y. 116, 120.) Riparian owners above or below have equal rights to improve their properties, come what may to the surface waters, so long as the improvements are made in good faith to fit a rational use for which it is adopted and provided the water is not cast by means of drains or ditches upon adjoining premises ( Kossoff v. Rathgeb-Walsh, 3 N.Y.2d 583; Bennett v. Cupina, 253 N.Y. 436). The amount of surface water to be discharged into a natural watercourse, by a riparian owner cannot be limited to the natural flow as it existed before the pavement of streets and other improvements by a municipality prevented the absorption of some portion of such waters by the soil. ( Fox v. City of New Rochelle, 240 N.Y. 109, 113.) As to the use of percolating waters, a land owner has the right upon its own lands to make use of them as he reasonably can, even though he drain the spring upon his neighbor's premises. (See People v. New York Carbonic Acid Gas Co., 196 N.Y. 421, 431.) What is a reasonable use depends, of course, upon the particular facts of each case. (See Smith v. City of Brooklyn, 18 App. Div. 340, 350.) Applying these principles to the instant case, we find that the record does not sustain liability on the part of the State. There is no evidence to support the finding that there was any unreasonable interference by the State with its percolating waters, drainage of surface waters, or the natural watercourse which resulted in an actionable injury to claimants' pond. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.