Summary
In Grein v. Yohon (103 Misc. 378) the court, citing a number of authorities, including the famous squib case, said: "The defendant cannot relieve himself from the consequences of an unlawful act by charging participation upon another.
Summary of this case from Mateo v. AbadOpinion
April, 1918.
McInerney Bechtold, for plaintiff.
McGreevy Beckler (Nathan D. Lapham, of counsel), for defendant.
The dispute in this case arises over the alleged diversion of the waters of Carney Hollow creek into Poky Moonshine creek and the main question of fact relates to whether or not when the defendant dug the ditch across his farm on March 27, 1913, he caused a diversion of the waters of the creek passing through his farm so that they flowed across the farm of the plaintiff and caused the damages or a part thereof for which he sues. Whether or not there was a diversion depends upon the pivotal question in this case, whether or not at the time that the ditch was dug the waters of Carney Hollow creek or any considerable quantity thereof were flowing in any substantially defined channel into Poky Moonshine creek. Hartshorn v. Chaddock, 135 N.Y. 116; McKee v. Delaware H. C. Co., 125 id. 353; Dennison v. New York C. H.R.R.R. Co., 98 A.D. 399; Wickham v. Lehigh Valley R.R. Co., 85 id. 182; Vernum v. Wheeler, 35 Hun, 53; Spellman v. Bannigan, 36 id. 174. The case must be approached with the fact established beyond dispute that the defendant caused to be constructed a ditch by means of a roadscraper and traction engine from Poky Moonshine road north through his field to the channel of Carney Hollow creek. The fact of the construction of the ditch stands out and meets the defendant and his contentions at every turn. If Carney Hollow creek naturally flowed to the south to Poky Moonshine road and thence to Poky Moonshine hollow it was not necessary to dig a ditch and, if it did not so flow, the construction of the ditch was an unlawful act so far as it diverted the course of the creek and turned water upon the property of the plaintiff for which a liability exists irrespective of any negligence. Hay v. Cohoes Co., 2 N.Y. 159; Tremain v. Cohoes Co., id. 163; Mairs v. Manhattan Real Estate Association, 89 id. 498, 505; McKee v. Delaware H.C. Co., 125 id. 355.
The questions of law applicable to this branch of the case are well understood (40 Cyc. 654; 2 Farnham on Waters, § 489) and no discussion of them is necessary further than to say that the defendant had no right to change the course of the creek across his farm to the damage of any lower riparian owner or of any person through whose property the creek formerly did not run, or to conduct surface water by an artificial ditch upon his neighbor's land. Vernum v. Wheeler, supra; Wickham v. Lehigh Valley R.R. Co., supra. It is a maxim as old as the common law and a rule still in force that water must be allowed to run where it is accustomed to run. Strobel v. Kerr Salt Co., 164 N.Y. 303. If the waters of Carney Hollow creek at the time that the ditch was dug flowed substantially in a southerly and westerly direction toward the village of Dansville the defendant had no right to divert them by a ditch into a southerly and easterly direction across the farm of the plaintiff and thence through the village of Springwater into Hemlock lake.
The farms of the parties originally lay upon separate and distinct watersheds, that of the plaintiff upon Poky Moonshine watershed and that of the defendant upon Carney Hollow watershed. The latter is more than three times the area of the former and their separate character is shown by the map of the United States topographical survey and by the size of the bridges and sluices on Poky Moonshine road and creek. On the map referred to surveyed in 1901 and 1902 Carney Hollow creek is shown as flowing to the south and west toward the village of Dansville and not into Poky Moonshine hollow and the size of the bridge at the intersection of Poky Moonshine and Carney Hollow roads, the sluice under the Poky Moonshine road at the defendant's farm, the bridges and sluices over the Poky Moonshine road in the hollow and the sluice under the Erie Railroad Company's track as they existed at the time the ditch was dug all show that they were constructed on the assumption that the waters of Carney Hollow creek flowed in a south westerly direction and not in a southeasterly direction into Poky Moonshine hollow. The evidence of the former owners of defendant's farm is that Carney Hollow creek was formerly a trout stream and that the main channel flowed across the farm in a southwesterly direction toward Carney Hollow road and the village of Dansville and that only a small portion in times of freshet flowed in a southerly and easterly direction into Poky Moonshine hollow. This evidence is substantiated by other oral evidence so that it appears to be established that the ancient course of Carney Hollow creek was not southerly and easterly into Poky Moonshine creek but southwesterly toward the village of Dansville. It is claimed however by the defendant that at the time that the ditch was dug the creek had worked its way to the east and south so that it was flowing substantially southerly and thence easterly into Poky Moonshine hollow. He claims that the ditch constructed by him merely followed a former channel and that the course of the water was forced or at least assisted to the east by the raising of Poky Moonshine highway. There is no doubt that this creek as it passed through defendant's premises did not always follow the same course but the weight of the evidence is against the contention that at the time of the construction of the ditch the body of the creek was flowing to the south and east toward Poky Moonshine highway. The defendant's farm is substantially flat land with a slope to the south toward this road but the elevations from east to west are such that the course of the creek could be diverted easily either to the east or to the west by the construction of a ditch. Under these conditions it was incumbent upon the defendant as a reasonable man knowing the conditions as they existed to refrain from digging any ditch which would divert the water from the course in which it was accustomed to flow. He might change the course through his property but not so as to deprive lower riparian owners of its use or to throw it upon land over which it had not previously flowed. Both of these legal restraints were upon him and emphasized the importance of leaving the creek alone to work out its own course.
If it is true that the defendant diverted the creek to the south and east by the construction of the ditch it is no defense that the sluice under the Poky Moonshine road was insufficient to take care of the water or that the road had been raised and constituted a barrier which threw the water to the east and over that portion of the road which had not been raised. This is a condition also which as a reasonable man he was expected to take into account when he dug the ditch. It was a result which ought to have been anticipated by him as well as the possibility of the ditch diverting the main body of the stream. It is no defense that he may not have intended to bring about the results which followed. He is liable for what might be expected reasonably to follow from his act. Under the conditions that existed he ought to have anticipated if he did not actually intend that the creek would use the ditch and become the cause of diverting its course and would result in reclaiming the western portion of his farm but would also deprive lower riparian owners of the use of the bulk of the water and cast it upon property upon which it did not formerly flow.
He should also have anticipated that the addition of the flood waters of Carney Hollow watershed to the waters of Poky Moonshine watershed might cause damages by the increased flow of Poky Moonshine creek and might not be able to flow through the two eighteen-inch pipes under the tracks of the Erie Railroad Company at the foot of Poky Moonshine hollow and near the muck lands of the plaintiff. These pipes were sufficient to take care of the usual flow of Poky Moonshine creek without causing any substantial damage but were not large enough to carry the increased waters turned into the creek by the defendant. The railroad company was obliged to provide an opening under its tracks sufficient to care for all of the water that might reasonably be expected to flow down the creek but was not required to provide an opening sufficient to take care of waters turned into Poky Moonshine creek from another watershed by the construction of a ditch. The railroad sluice therefore as the evidence in this case stands was not the legal cause of the flooding of plaintiff's lands any more than was the raising of the Poky Moonshine road or the insufficiency of the sluice under that road. Neither was designed to take care of the main flow of Carney Hollow creek but was intended merely to take care of the waters of Poky Moonshine creek in the one case and the overflow of Carney Hollow creek in times of high water in the other case. The dimensions of these sluices and pipes existing for so many years with substantially satisfactory operation and without causing any substantial damages are strong witnesses for the plaintiff's contention as is the much larger opening under the bridge at the intersection of the Carney Hollow and Poky Moonshine roads. Warren v. Parkhurst, 105 A.D. 239; affd., 186 N.Y. 45; Sloggy v. Dilworth, 38 Minn. 179.
But even if the pipes under the railroad company's tracks were legally insufficient it would not relieve the defendant since it would not excuse his unlawful act but only add another tort feasor to whom the plaintiff might look for compensation. The defendant cannot relieve himself from the consequences of an unlawful act by charging participation upon another. Whatever the obligations of the railroad company, the defendant is not in a position to say that it was required to guard against an unlawful act on his part and he cannot claim that the railroad company and it alone is responsible to the plaintiff. When an unlawful or negligent act is once determined the liability attaches though others may have joined in aggravating the damages. The doctrine of "proximate" cause will not relieve a defendant where the facts establish negligence on his part for then his act is the "proximate" cause although there may be other tort feasors. To say that some other person than a defendant is the proximate cause of an injury is to say that the defendant is not guilty of negligence. When the fact of negligence is once established the doctrine of proximate cause becomes irrelevant for a defendant cannot be negligent and some other person be the responsible cause of the injuries. Sage was exonerated from liability to Laidlaw not because Norcross dropped the dynamite but because Sage had done no act toward Laidlaw to charge him with negligence or a violation of duty which he owed toward him. Laidlaw v. Sage, 158 N.Y. 73. The New York Telephone Company was charged with negligence and therefore with responsibility for leaving denatured alcohol by the roadside although Hall, who was an infant, carried some of it home, poured it upon the ground, set fire to it and burned himself. Hall v. New York Telephone Co., 159 A.D. 53. The Rochester Lime Company on the contrary was exonerated from liability to Perry who was injured by the explosion of dynamite caps which boys had stolen from the rear of the company's premises on the heel path of the canal because the company could not reasonably have anticipated the theft and was therefore not negligent. Perry v. Rochester Lime Co., 219 N.Y. 60. The Bolton Landing Lumber Company was held liable for negligence in failing to guard a circular saw although Finkle tripped over nails on the floor and fell against the saw. Finkle v. Bolton Landing Lumber Co., 148 A.D. 500. Perkins was charged with negligence and held liable for leaving a pile of muck in the highway although Sweet's horse was frightened by an automobile and forced him over onto the muck and overturned his rig. Sweet v. Perkins, 196 N.Y. 482. If Plath had not tied his horse as a careful and prudent man should have done, he would not have been absolved from negligence and liability although boys had tantalized his horse by throwing stones at it as a result of which it ran away. Thompson v. Plath, 44 A.D. 291. If the New York Telephone Company had been negligent in the manner in which it attached its wires to the chimney it would not have been relieved from liability because the building contractor had been negligent, for the latter fact would only have added another tort feasor. Leeds v. New York Telephone Co., 178 N.Y. 118; 38 Cyc. 453, 481. In the celebrated squib case Shepherd would not have been liable if he had not been negligent in the first instance in throwing the squib and the fact that others participated in throwing the squib from place to place did not add to or detract from his liability. Scott v. Shepard, 2 Black. 892; 3 Wilson, 403. Other illustrations might be cited in substantiation of the position here taken that if the defendant negligently or otherwise unlawfully dug the ditch and thereby diverted water of the creek and damaged defendant he is not to be relieved if some other person was also guilty of negligence for his negligence is not expunged by the negligence of another. In this case the defendant failed in a duty which he owed to the plaintiff causing the damages complained of and was therefore negligent. Negligence is an unintentional breach of a legal duty causing damage reasonably foreseeable without which breach the damage would not have occurred. If the act is intentional it ceases to be a negligent act and becomes an unlawful one falling under some other branch of the law of torts creating a liability. So that, even if the act of the defendant was not a negligent one, he would still be liable for the commission of a tort. Negligence involves an act constituting a breach of duty instrumental in causing or contributing to an injury. When the defendant, therefore, is found to have been negligent, as that term is understood in law, in his relation to the plaintiff, he is liable, for his negligence involves an act constituting a breach of duty instrumental in causing or contributing to plaintiff's injury.
The defendant was expected to anticipate the reasonable consequences of turning the water of Carney Hollow creek into Poky Moonshine creek into which it had not flowed hitherto in sufficient quantity to do any substantial damage and is liable for the reasonable damages that have been occasioned thereby. The rule as to reasonable damages makes him liable only for the direct and proximate damages which resulted from his unlawful act ( O'Donnell v. City of Syracuse, 184 N.Y. 1; Carhart v. State, 115 A.D. 1) and if there had been an extraordinary flood which could be said to have caused the damages and not his negligence he would be absolved completely from liability or from so much of the damage as was caused by the flood irrespective of his negligence. O'Donnell v. City of Syracuse, supra; Carhart v. State, supra.
There was, however, no extraordinary flood and it becomes unnecessary to consider this element. The weight of the evidence is that it was a severe freshet but not an extraordinary one in the sense that it stood out among other storms as one which could not reasonably be anticipated. The defendant is not to be absolved for consequences which may have been aggravated by a freshet which was not greater than was usual in that section and which he might reasonably have expected. If the freshet was a usual one he is liable for the damages occasioned by his act although it was rendered more serious by the high water. The fact alone that there was a freshet usual in that vicinity does not excuse him or relieve him from the full consequences of his act. No such damage had been caused by previous freshets, and the storm not being unusual the damage must be attributed to the large amount of water from Carney Hollow watershed which he diverted to Poky Moonshine creek by means of the ditch.
The water blocked up at the Erie Railroad Company's pipes but this circumstance does not serve to relieve the defendant. The water turned at this point and ran southerly until it reached a lower culvert, washed away the railroad embankment and thus caused the serious damage to plaintiff's muck land. These consequences followed not from the insufficiency of the pipes for they had been found sufficient previously and no substantial damages had been caused by their inability to carry the water in times of previous freshets but from their incapacity to carry the ordinary flow of Poky Moonshine creek and such freshets as might be expected and the additional water from Carney Hollow watershed which the defendant turned into Poky Moonshine creek by means of the artificial ditch.
In arriving at these conclusions it has been necessary to weigh the testimony of the numerous witnesses in the light of their interest, bias, prejudice and partisanship which were plainly apparent in many cases, sometimes in the extravagance of the testimony itself, contradictions on cross-examination, hesitancy of speech when there should have been prompt answers, subdued replies at crucial points as if afraid to be heard, readiness to volunteer information in favor of the party calling them and in general manner and demeanor on the witness stand, all of which have had their proper influence in determining the questions of fact involved in the case and cannot be transferred to a colorless printed record. Rosevear v. Sullivan, 47 A.D. 421.
The defendant therefore is liable for all of the damages directly and proximately caused by his unlawful act and is not excused wholly or partly by any conditions or acts which accompanied his unlawful act and in addition should be restrained from diverting any water of Carney Hollow creek contrary to the rights of the plaintiff and should be required to discontinue any ditch constructed by him which accomplished that purpose and to fill up the same and to restore the water of the creek to its original course.
Ordered accordingly.