Opinion
Argued October 5, 1876
Decided November 14, 1876
George W. Wingate for the appellant. Warren G. Brown for the respondent.
Upon the trial of this action, evidence was offered to establish that the plaintiff had lost tenants on account of the water flowing into the plaintiff's cellars and that the cellars had remained unoccupied since the water came in, which testimony was excluded by the court. Proof of the rental value for the purpose of showing the damages done, was also rejected. The questions put in reference to these subjects were objected to generally, and no special ground of objection was stated to the form of any of them. The judge in his charge to the jury also excluded the rental value as an element of damage. To each of these rulings exceptions were taken and they uphold the principle that no damages could be recovered for the loss of rent, or the loss of the use of the cellars, and they may be considered under the same general head. I think that the judge was clearly wrong in the decisions referred to. The complaint was for damages by reason of the failure of the defendant to keep the privies and drains of his buildings in proper repair, thereby causing the water and filth to escape into plaintiff's houses and cellars and rendering the cellars unfit for use, and, among other things, creating such an offensive smell as to interfere with the use of the premises and the letting of the same. The admissibility of evidence of this character in a proper case, is abundantly established by authority. In Francis v. Schoellkopf ( 53 N.Y., 152), which was an action to recover damages for maintaining a nuisance, it was held that the proper measure of damages was the difference between the rental value, free from the effects of the nuisance for which damages were claimed and subject to it. (See also, McKeon v. See, 4 Robt., 450; St. John v. The Mayor, 6 Duer, 315; Ruff v. Rinaldo, 55 N.Y., 664; De Wint v. Wiltse, 9 Wend., 325.) No valid reason exists why the same rule should not prevail in a case like the present one, where it is quite apparent that damages of the same character may follow, as the immediate consequence of the alleged injury. It is said, however, that the evidence was improper, because special damages should have been alleged in order to be proved, and that the complaint should have stated the names of the tenants, the apartments and specific amounts of rent alleged to have been lost, so as to enable the defendant to meet the proof which might establish such an allegation. This doctrine might well apply in actions of slander, and of a kindred class under the common-law practice, which requires that special damages should be specifically alleged. Where, however, the damages necessarily result and naturally flow from the injury complained of, they may be recovered without any special averment. ( Vander slice v. Newton, 4 Comst., 132.) This would seem to follow here. But, be that as it may, the complaint having alleged that the use of the cellars and the letting thereof was prevented by the unlawful act of the defendant, it was quite sufficient to authorize the admission of the evidence. Especially is this the case, as there was no objection to the evidence upon the ground stated, and if this had been interposed, it could have been obviated by an amendment of the complaint. The cases cited to sustain the proposition that the loss of rent is too remote as an item of damages, are clearly distinguishable, and, as this case stands, have no application. The reasons stated are also applicable to the portions of the charge already referred to.
A portion of the charge of the judge, to which exception was taken, was also erroneous in confining the damages to mere injuries done to the walls and cellars, for the reason that it is made to appear that expenses had been incurred by the plaintiff in plumbing and fixing the sewers, and that other expenses would be required in preventing further injury from the flow of the water through the walls, which should have been taken into consideration. There was also error in the charge in limiting the damages without allowing for the injuries which were caused by the stench and smell which necessarily would seriously affect the use of the property and constitute an important item of the damages incurred.
There was also error in that portion of the charge of the judge to the effect, that if the water did come from the defendant's yard and he did every thing which was possible, under the circumstances, and practicable in the way of drainage to carry it off from the premises, he was not liable. The proof showed that the defendant had paved the yard, thus causing the water to accumulate and render the yard less penetrable to the same, and conducted from the roofs of his houses to the privy in leaders and drains an unusual quantity of water beyond the capacity of the drains to carry away. This he had no right to do, and he was bound to take care of such water as fell and accumulated upon his own premises and to prevent its causing any injury to the property of the plaintiff. ( Bellows v. Sackett, 15 Barb., 96; Foot v. Bronson, 4 Lans., 51.) It matters not that the defendant did all that he reasonably could do to take the water off, if he suffered it improperly to increase on his own premises, and so as to flow on the plaintiff's premises. The principle established by the familiar maxim sic utere tuo ut alienum non laedas, is applicable to such a case as is presented by the evidence here. It may be invoked in all cases where the owner of land allows water to flow from his own premises to that of his neighbor's and causes damages; where a man digs on his own land so near to his neighbor as to cause the land of the latter to fall upon his, and he thus transfers a portion of the soil of another to his own. ( Farrand v. Marshall, 21 Barb., 409.) Also, where an injury is caused by the blasting of rocks on the land of the owner, which fall on the land of his neighbor ( Hay v. The Cohoes Co., 2 Comst., 159), as well as in other cases of a similar character. For the same reason where, by an imperfect system of drainage, or a failure to keep drains in proper repair, water is diverted and an injury committed, the law holds the delinquent amenable. The exception to the portion of the charge last considered was accompanied with a request to charge that the defendant was bound absolutely to carry off the surface water from his premises, which request was refused, the court holding substantially as charged, and no exception appears to have been taken to the refusal to charge. I think the exception raises the question as to the correctness of the charge as made, and hence is a proper subject for consideration upon this appeal. It by no means follows that because the jury brought in a verdict for the defendant that the defendant was not responsible for the loss of rent. Nor is it to be assumed that the result would not have been changed had the judge given proper instructions on the subject of damages and the extent of the defendant's liability.
For the errors discussed the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur; ALLEN and FOLGER, JJ., on the ground of the exclusion of evidence; ANDREWS, J., in result.
Judgment reversed.