Opinion
December 15, 1952.
Present — Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ.
Plaintiff town constructed a drainage system which collected surface waters in an area north of the property of the corporate defendant and channeled it into a watercourse whose source was on that defendant's property. There was proof that this construction did not increase the flow of surface water on to that property over the volume of water which would have flowed naturally thereon due to the topography of the area. The corporate defendant, acting through the individual defendant (its vice-president), filled in the watercourse and the obstruction caused a stagnant pool of water which is claimed to be a public nuisance. In this action to compel defendants to remove the fill and to restore the watercourse to its former condition, plaintiffs appeal from a judgment dismissing their complaint. Judgment unanimously affirmed, with costs. Defendants have the right to improve their property by preventing the flow of surface water on their land. ( Barkley v. Wilcox, 86 N.Y. 140.) There is a distinction between casting water on the land of another and the right of that other to prevent the flow of surface water on his land. ( Barkley v. Wilcox, supra.) This case is concerned solely with the rights of the latter.