Opinion
November 3, 1967
Appeal by the claimant from judgments of the Court of Claims dismissing his claims for damages from alleged negligence and trespass in the construction of a State Highway in Nassau County. In 1959 the State appropriated approximately an acre across the entire frontage of claimant's property. Included in the appropriation were the main house, a portion of the access driveway and a pond into which surface water on claimant's property drained. In a separate action tried in 1964 claimant was awarded $99,945 for direct and consequential damages for this appropriation. After the appropriation the State proceeded to raise the grade of the highway and filled in the pond changing the drainage patterns for the surface water on claimant's remaining property. Allegedly, as a result of this change on September 12, 1960 rains accompanying a hurricane produced accumulation of surface water which inundated the premises including the remaining buildings causing considerable damage. Subsequently, the State obtained an additional easement and constructed facilities which provided drainage of claimant's property. Claimant also seeks damages for the State's allegedly failing to provide proper access to his property during the course of the highway construction. The trial court dismissed both claims and we think properly so. There are two reasons why the surface water drainage was changed, the taking and filling of the pond and the raising of the elevation of the highway. As to the first, any claim for damages as a result of the taking and filling of the pond were properly recoverable in the prior action and not here (e.g., South Buffalo Ry. Co. v. Kirkover, 176 N.Y. 301). As to any change precipitated by the elevation of the highway, the State clearly had no legal liability (e.g., Fox v. City of New Rochelle, 240 N.Y. 109; Burmaster v. State of New York, 186 App. Div. 131; Gibson v. State of New York, 187 Misc. 931), in the absence of proof that a stream was interfered with ( Drogen Wholesale Elec. Supply Co. v. State of New York, 27 A.D.2d 763), or that additional surface water was channeled or piped onto claimant's property (e.g., Holmes v. State of New York, 32 Misc.2d 1077). We find no merit in claimant's attempt to distinguish these cases because a portion of the construction which caused the change was on property appropriated from him. The land at the time of the construction was clearly owned by the State and the source of its title is immaterial. Nor do we see any legal significance as far as the instant actions are concerned in the fact that the State eventually rectified the condition. Similarly, we find no basis in claimant's assertion that the State was responsible for any loss of access suffered (e.g., Caldwell v. State of New York, 39 Misc.2d 898, affd. 22 A.D.2d 834). Judgments affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.