Sullivan County NyArchives Court.....McKee, Daniel Vs. Delaware & Hudson Canal Co 1889
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Source: Reports Of Cases - N Y
Written: 1889

DANIEL B. McKEE, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE 
DELAWARE AND HUDSON CANAL COMPANY, Appellant.

Construction by a corporation, under authority of its charter, of a dam upon its 
own premises—when it is liable for discharging the water upon the lands of an 
adjoining owner — remedy, other than one specially provided by the statute. 

The plaintiff, who had been the owner of a farm since 1851, widened a small 
brook which ran through it and deepened the channel thereof, and thereby drained 
certain of the flat land of the farm, which had been boggy and useless land, and 
made it valuable meadow land. Thereafter, in 1871, the defendant constructed on 
its own land a dam on this stream above the plaintiff's land, which held back 
the water, and in dry seasons the defendant let the water run through the brook 
to its canal, using the brook as a feeder. By doing this the defendant caused 
the water, when it was allowed to escape from the dam, to back up upon the 
plaintiff's flat land and injured it; this result being caused, in part, by a 
gravel bar below the flat land which held the water back and thus turned it on 
to the plaintiff's land.

Upon the trial of an action, brought to restrain such action on the part of the 
defendant, the court charged that there was no evidence of neglect or want of 
care on the defendant's part, and that the plaintiff's recovery did not depend 
upon willful malice or negligent acts of the defendant.

Upon an appeal from a judgment granting a perpetual injunction and a judgment 
for past damages, entered upon the verdict of a jury:

Held, that the provision contained in section 10 of the charter of the defendant 
(chap. 238, Laws of 1823), which gave the right to a summary application for a 
jury to assess damages, did not take away the plaintiff's common-law right of 
action or his right to an action in equity.

Upon the trial of the action it was not claimed that there was any defect in the 
construction of the dam or in its maintenance, and it was shown that the 
defendant only discharged the water at times and in amounts necessary for the 
use of its canal.

Held, that the plaintiff's damages did not arise incidentally from the 
construction of the defendant's dam, but arose from the intentional act of the 
defendant in discharging through an insufficient channel a large body of water 
without providing a sufficient outlet below plaintiff's land.

A right given by the legislature to dam a stream may excuse a person, who 
constructs the dam in a proper manner, from liability arising from great 
freshets or from ordinary percolation of water, but it does not authorize the 
person to pour the water thus accumulated upon the land of other persons; nor 
can he do this by pouring it through the original channel of the stream in such 
large quantities that the channel cannot carry it off.

Appeal by the defendant from a judgment, entered upon the verdict of a jury, in 
favor of the plaintiff, rendered at the Sullivan Circuit, in the Sullivan county 
clerk's office, October 16, 1888. 

The plaintiff has been the owner of a farm since 1851. Through this ran a small 
brook. He widened and deepened the channel, and drained his flat land into it. 
So that the flat, which had been boggy and useless land, has become valuable 
meadow land. In 1871 defendant constructed, on its own land, a dam on this 
stream above plaintiff's land. This dam held back the water; and in dry seasons 
the defendant let the water run through the brook to its canal, using the brook 
as a feeder. By doing this the defendant threw the water upon the plaintiff's 
flat land and injured it. This result appeared to be owing in part to a gravel 
bar below the flat land which held the water back, and thus turned it on 
plaintiff's land.

This action was brought in equity to restrain these acts of the defendant, and 
was tried before the court and a jury. The court charged that there was no 
evidence of neglect or want of care on defendant's part; that plaintiff's 
recovery did not depend on willful malice or negligent act of defendant. The 
jury found a verdict for plaintiff. The court approved the verdict and made 
several findings of fact and law. The court made no finding on the question of 
negligence; but found that defendant had not acquired a right to discharge water 
upon plaintiff's land, and that it had at all times been practicable for 
defendant to cut down and lower the channel of the stream so as to convey the 
water in as large quantities as necessary without injuring plaintiff's land. The 
court granted a perpetual injunction, and a judgment for past damages found by 
the jury. 
From this the defendant appealed.

Thornton A. Niven, for the appellant.

Timothy F. Bush, for the respondent.

Learned, P. J:

We do not think that the provision in the charter (chap. 238, Laws 1823, § 10), 
which gives the right to a summary application for a jury to assess damages, 
takes away plaintiff's common law right of action, or his right to an action in 
equity. (Selden v. Delaware and Hudson Canal Co., 24 Barb., 362; Crittenden v. 
Wilson, 5 Cow. 165.) The important question here is whether defendant is liable 
for the injury caused, without proof of some negligence on its part. It is not 
claimed that there was defect in the construction of the dam, or in its 
maintenance; and the defendant only discharges the water at times and in amounts 
necessary for the use of its canal.

The case of Bellinger v. New York Central (23 N. Y., 42), held that where, in 
pursuance of legislative authority, a person interferes with a running stream by 
obstructing its flow, he will not be liable for overflows caused, unless on 
proof of want of due skill. Probably this case states the doctrine claimed by 
the defendant. Similar is the case of Cuddeback v. Delaware and Hudson Canal 
Company (20 Weekly Dig., 454), where damage was claimed to arise by percolation 
from defendant's canal.

If this action were for damages, occasioned by a break of the dam, the decision 
in Losee v. Buchanan (51 N. Y., 476, 487) would probably apply. But there is a 
difference in the present case. The plaintiff's damages do not arise 
incidentally from the construction of defendant's dam; they arise from the 
intentional act of defendant in discharging through an insufficient channel a 
large body of water, without providing sufficient outlet below plaintiff's land. 
The defendant having a supply of water obtained by its dam, desires to send that 
water down into its canal. It does this without regard to the fact (of which it 
has been notified) that the channel of the stream will not carry so large an 
amount, and, therefore, the defendant is really pouring this water upon 
plaintiff's land, with knowledge that it is so doing. While, of course, the 
defendant has, we suppose, no wish to injure plaintiff, yet it does acts which 
it knows will directly injure him, and this it should not be allowed to do. The 
right to dam a stream, given by the legislature, may excuse the person, who 
constructs the dam in a proper manner, from liability arising from great 
freshets or from ordinary percolation of water. But we think that such right 
does not authorize the person intentionally to pour the water thus accumulated 
upon the land of other persons. Nor may he do this by pouring it through the 
original channel of the stream in such large quantities that the channel cannot 
convey it.

We are of the opinion that the decision of the learned justice was correct and 
that the judgment should be affirmed, with costs.

Landon and Ingalls, JJ., concurred. 

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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