Opinion
December 28, 1911.
J.J. McGuire, for the appellants.
Peter F. McAllister, for the respondent.
The respondent invokes the rule that municipal corporations engaged in the performance of works of a public nature authorized by law are not liable for consequential damages occasioned thereby to others where private property is not directly encroached upon unless such damages are caused by negligence. ( Atwater v. Trustees, etc., 124 N.Y. 602.) In the case at bar no negligence has been testified to directly nor proved except as shown by the acts of raising the banks of this stream. But these acts evidently closed certain overflow or flood water channels which formerly took care of the flood waters of the creek, with the result that waters were diverted from their customary channels and into and through the depression in the south bank and so over appellants' premises. Such a diversion clearly amounts to an invasion of appellants' property rights, and if claimed to be authorized under the act creating the board the statute must be deemed unconstitutional in so far as it permits such a taking in effect of private property for a public use without compensation.
No evidence was given as to whether or not this flood was such an extraordinary one that the overflow at the depression into the south bank could not reasonably have been anticipated to result from the raising of the opposite bank. The excessive fall of the stream before reaching the valley and the various overflow channels or depressions along the banks of this stream may be considered as giving notice that the elevation of the banks west of Cayuga street and on the north side of the stream east of Cayuga street might easily cause an overflow at the depression in the south bank in case of an ice blockade at the low railroad bridge. The board had engineering advice at its disposal and was presumably familiar with all the conditions. It was apparently solicitous to protect the public property along the north bank, and this even at the expense of private property, as is shown by the repairing of the cut in the north bank after the first flood had shown the risk of an overflow at the depression in the south bank. Although for a mere error in judgment by the board the city would not be liable, nevertheless we think that the acts here shown were not so clearly judicial nor the damages so merely consequential in their nature as that the case should not have gone to the jury on the question of negligence.
Had the banks of this creek been raised to an equal height, it might then have been claimed that the municipality is protected under the rule of law invoked. The banks of the stream, however, were from one to two feet higher than the outlet under the railroad bridge. In a flood not shown to have been extraordinary the ice jam was followed by the inevitable consequence that the water flowed over the lower embankment upon the south by reason of the blocking of the natural outlet of the stream by the raising of the bank upon the north of the stream. Such inevitable results must be deemed to have been deliberately intended and the acts causing them, especially in view of the evident intent to protect the city's property upon the north, cannot be deemed to be the exercise of a judicial power around which the law in certain cases throws immunity. In our judgment the jury should have been allowed to say whether this commission exercised due care to protect the plaintiffs' property in this construction, and if not what damage resulted from its failure to exercise such care.
The judgment and order should, therefore, be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed, and new trial granted, with costs to appellants to abide event.