Opinion
June 30, 1961
Appeal from the Onondaga Trial Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment insofar as appealed from unanimously reversed on the law and facts and case remitted to the Trial Term for further proceedings in accordance with the memorandum, without costs of this appeal to any party. Memorandum: The provisions of the injunction were much too broad. In forbidding the town to discharge the waters drained from the Westholm and Westvale areas "into and onto and adjacent to the lands of the plaintiff", the injunction completely prohibited the use of the ditch which runs alongside the Minetta land and then runs through the Bartlett land. The town should not be prohibited from discharging the surface waters into the ditch (which replaced part of Harbor Brook) to the extent of the natural capacity of the ditch. The provisions of the injunction prohibiting the discharge of domestic sewage into the Westvale storm sewer system have not been appealed from, and it is our understanding that a sanitary sewer system is now being installed. The whole question of the discharge of surface waters into the so-called West Stream (west branch of Harbor Brook) and into the ditch on the Bartlett land should be re-examined in the light of the situation as it will exist after the completion of the sanitary sewer. It may well be that with the discontinuance of the use of the Westvale storm sewer system for domestic sewage, and with the cleaning of debris out of the West Stream and the Bartlett ditch, these channels will be able to carry off the surface waters without overflowing onto the plaintiff's lands. If it appears upon further hearings that the surface waters cannot be carried off by these channels without overflowing, the town should be required to submit a plan for the correction of the situation either before the closing of the hearings or upon an application at the foot of any new injunction which may be granted.