Opinion
Argued April 9, 1946
Decided May 29, 1946
Appeal from the Supreme Court, Appellate Division, Fourth Department, BARRETT, P.J.
Nathaniel L. Goldstein, Attorney-General ( Orrin G. Judd, Irving Galt and Harold S. Coyne of counsel), for appellant.
Charles G. Signor for respondent.
This action was instituted in the Court of Claims to recover from the State, pursuant to section 120 of the Canal Law (L. 1939, ch. 542), damages to claimant's stone quarry situated in the town of Murray, county of Orleans, caused by leakage from the Barge Canal from April 15, 1940, to November 15, 1940, by reason of negligence in the construction and maintenance of the banks and bottom thereof. The Appellate Division has affirmed a judgment of the Court of Claims awarding to the claimant $6,110.94 for damages representing the cost of pumping operations necessary to eliminate the water from claimant's quarry and also representing decreased production and increased cost of operation caused by the presence of the water.
Claimant's quarry, known as the Hill quarry, was adjoined on the west by a quarry known as the Otto Squires quarry. The leakage from the canal which was complained of was onto the Otto Squires quarry which was owned by claimant's wife, subject, however, to an easement, created by appropriation, in favor of the State to overflow and flood the lands of this quarry, the wife's title having been taken subject to this easement with the claimant's knowledge. Claimant had also been in possession of this quarry under a lease for about a year before his wife's purchase in 1938.
When claimant began to work the Otto Squires quarry in 1937 his removal of the stone extended the face of that quarry toward the east and continued in this direction after his wife acquired title thereto until he had brought it close to the common boundary separating it from the Hill quarry, when in 1939 he purchased the Hill quarry and continued his operations from the Otto Squires quarry into the Hill quarry. The rock formation composing the boundary line between the Otto Squires quarry and the Hill quarry was removed in these operations and claimant continued to extend the face of the quarry toward the east. The unavoidable result of these operations was that the water accumulated upon the Otto Squires quarry also gathered upon the Hill quarry, and the only damages claimed in this case are damages from water on the Hill quarry during a period of seven months resulting from these operations of the claimant himself.
We need not pause to speculate whether this case is governed by the doctrine of contributory negligence or ruled by the maxim, volenti non fit injuria. Principles may vary in different situations but, where damage results to the claimant from his own voluntary and deliberate act in the face of known dangers having obvious and inevitable consequences, it matters not which principle is applied ( McFarlane v. City of Niagara Falls, 247 N.Y. 340, 349; Zurich G.A. L. Ins. Co. v. Childs Co., 253 N.Y. 324, 327). As was said in Lanigan v. New York Gas-Light Co. ( 71 N.Y. 29), the maxim volenti non fit injuria applies with all its force to one who heedlessly and voluntarily exposes his property to apparent danger or peril. In that case, although the gas company had been negligent in installing its apparatus in the plaintiff's cellar and the apparatus was thus caused to leak, the plaintiff, having sent his servants into the cellar with a light which caused the gas to ignite and explode, was held to have no right to recover because the explosion was caused by his voluntary act and the danger was so obvious that the maxim applied with all its force. Here the consequences of the claimant's act were even more obvious for he voluntarily and deliberately destroyed the barrier of rock between the two quarries, letting the water in one flow into the other. With knowledge of the unavoidable danger, he tore down the rock and voluntarily accepted the consequences, and may not recover damages which he deliberately caused to his own property.
The judgments should be reversed and the claim dismissed, with costs in all courts.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and DYE, JJ., concur.
Judgments reversed, etc.