Opinion
November 25, 1908.
Edgar Hull [ Edgar T. Brackett of counsel], for the appellant.
Erskine C. Rogers, for the respondent.
The defendant was constructing the new barge canal near Dunham's Basin in Washington county, N.Y. In constructing one of the spoil banks according to the direction of the State Engineer he dammed up a small ditch, which was called Dead creek, and which operated to drain certain lands northeasterly thereof. This plaintiff was the lessee of about three and one-half acres of land situated alongside of Dead creek about a mile and a half northeasterly of the place where the same was filled up. In September, 1907, there were heavy rains; his land was overflowed and a potato crop which he had planted was damaged. The plaintiff's claim is that the obstruction of Dead creek by this spoil bank caused the water to flow back, over and upon his land, and also that it prevented the drainage of his land, which would otherwise have occurred, to the damage of his crop thereupon, and for which the defendant is claimed to be liable.
The first defense is that defendant was acting under the authority of the State, which had the right to locate its banks where it would, subject only to its liability for compensation for damage to be obtained through the Court of Claims. It seems clear that the State has the right to dam up this stream without furnishing another outlet therefor if it had deemed necessary in the prosecution of this work, and that damages could have been procured therefor through the Court of Claims. If the State had the right so to do its servant acting in its behalf or one who by contract does its work is guilty of no wrong in so doing. The remedy of a riparian owner whose rights have been impaired is against the State which has assumed to create the obstruction of the stream. The question is not one of negligent construction. True the contractor might have provided temporarily for such waters, but such a provision could only be temporary until the spoil bank was built a little further north. In the case of Covert v. Cranford ( 141 N.Y. 525) the construction of the work did not necessarily involve the interruption of the stream. Here the obstruction of the stream was involved in the State plan. The stream was obstructed by direction of the State Engineer. The State contract made no provision for caring for the waters of Dead creek. The contractor is under the contract liable for damage caused during the construction of the work. But this does not mean for damages to riparian rights which have been appropriated by the State. For such injuries the State alone is liable. The judgment and order should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.