#### Meda B. H. Pennock, Respondent, *v.*Central New England Railway Company, Appellant.

Second Department,

December 5, 1913.

Railroad — negligence — liability for collapse of culvert resulting in inundation of adjoining land—consequential damages.

Where a railroad company is authorized to construct its road over a given route which involves the necessity of crossing a stream running through its own property, and its operations are confined to its own land, and there is no trespass, and nothing is disclosed by which it is proved that the injurious result must necessarily have followed the prosecution of the work itself, the inundation of the plaintiff’s land by the backing up of the stream caused by the collapse of the culvert in the course of construction presents a case where the damages are consequential, and are not recoverable unless the injury was caused by misconduct, negligence or unskillfulness.

Hence, in an action against a railroad company to recover damages caused by the collapse of a culvert built by the defendant resulting in the water backing up and inundating plaintiff’s land, it is error to submit the case to the jury upon the assumption that the defendant is absolutely liable.

Appeal by the defendant, Central New England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 25th day of May, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1912, denying defendant’s motion for a new trial made upon the minutes.

*Samuel H. Brown [F. B. Lown*and *Charles M. Sheafe, Jr.,*with him on the brief], for the appellant.

*Morschauser & Mack,*for the respondent.

Stapleton, J.:

The appeal is from a judgment for $9,236.50, entered upon a verdict in favor of the plaintiff, and from an order denying defendant’s motion to set aside the verdict and for a new trial.

The plaintiff is the owner of a brick yard at Poughkeepsie. The defendant, a railroad corporation, acquired by a condemnation proceeding a right of way through what is practically the center of plaintiff’s property. The award was satisfactory to *518the plaintiff and accepted by her, and the order of confirmation was duly entered.

The strip acquired, 150 feet in width, consisted of about six acres. Upon this strip, lawfully authorized by the State so to do, the defendant proceeded to erect a “fill” or embankment, over which, when completed, it was designed to lay railroad tracks. The embankment was 35 or 40 feet in height and 3,800 feet in length.

Through the plaintiff’s and the defendant’s property, in a direction intersecting the proposed embankment, flowed Casperkill, a natural running stream, from one to three feet in depth and varying in width from two to ten feet. It was arranged and stipulated in the condemnation proceeding that in the taking of the land by the defendant was included no right to interfere with this stream. To provide for the free passage of the stream through the embankment the defendant built a culvert in dimension six feet four inches wide and five feet high, giving an opening equivalent in diameter to a five-foot circle. The foundation for the culvert was laid upon hard clay, seven feet or more beneath the surface, the excavation therefor being thirteen feet wide and one hundred and twenty-one feet in length. The culvert itself was strongly built of concrete. Its top or cap was a concrete slab eighteen inches thick, reinforced with seventy-pound rails laid at intervals of less than a foot apart. Upon this slab were piled dirt and rocks to a height estimated variously as twenty-eight and thirty-five feet. At this elevation lay the bed of the railroad.

When the embankment was about completed the culvert collapsed, the whole thing buckled up, and when it sank the bank sagged with it. The creek, thus blocked, backed up and flooded the plaintiff’s land, damaging her real and personal property and interfering with her business of manufacturing brick. The extent of the damage was vigorously disputed.

The complaint was founded upon the theory of negligence, and much evidence was given in proof and disproof of that ground of liability on the part of the defendant in selecting the foundation or bed upon which the culvert eventually rested. The immediate foundation was a very dry, compact yellow clay, underneath which was a stratum of blue clay. It was sought by *519the plaintiff, with some success, to show that clay was a had foundation where it was likely that water would penetrate. On the other hand, the defendant submitted evidence to the effect that careful boring to a depth of twenty feet had been made preparatory to selecting the foundation, that twenty feet of “ reasonably dry clay ” made a good foundation, and that a good foundation could he put on even wet clay.

For a number of years the defendant had run its railroad through another embankment on this property, close to and almost parallel with the new embankment. The old embankment had been settling year by year. From one of the defendant’s expert witnesses the plaintiff elicited the admission that such a condition would have made him suspicious and he “would dig deeper.” The defendant’s contention was that the sinking was due to some unknown action or cause below the' clay, as a quicksand or a muck pocket.

In the record appears this colloquy: “ Mr. Lown: I think Mr. Morschauser, in his complaint, has seen fit to allege that this was built negligently. * * * The Court: I think I will submit the case to the jury on a different theory. * * I think it is a question of a private nuisance.”

In its charge to the jury the court said: “ If the defendant, the railroad company, in the course of its work, closed up this natural water course by any obstruction or permitted it t<¡ become closed—if, in other words, the culvert, which it constructed upon this property collapsed and fell into this stream and closed it up, and thereby caused the waters to back up over the plaintiff’s property, the defendant in that event is liable to the plaintiff for her actual money damages. If, in other words, the culvert gave way and collapsed and fell into and filled up this passageway; this water course that had been provided for this stream, and thereby overflowed the plaintiff’s premises, and caused her damage, the railroad company is liable to the plaintiff, no matter whether the defendant’s work was negligently done or not, no matter how much care was used or skill exercised in the construction of this culvert. If it did give way and fill up this water course and obstruct the same and cause the water to overflow the plaintiff’s property, the railroad company is liable.”

Again, in its opinion on the motion for a new trial, the court *520said: “Since the verdict was rendered by the jury, I have carefully considered the briefs submitted by the defendant’s counsel in support of the motion to set aside the verdict, and have examined all of the authorities cited, but I am not persuaded that I erred in charging the jury as I did. I am convinced that the stopping of the natural flow of the stream by the defendant, thereby flooding the plaintiff’s brick yard, makes the defendant liable to the plaintiff for his actual damage, regardless of the question of negligence. If that is not the law, I think it ought to be.”

Efficient exceptions to these rulings were interposed and, as has been stated, an appeal is taken from the order denying the motion to set aside the verdict and for a new trial.

Liability has been imposed upon the defendant for consequences irrespective of any considerations of care and skill, upon the theory that the rightful possession of the plaintiff was wrongfully disturbed and that direct, necessary and immediate injury was caused to her property. The defendant contends that error was thus committed, as the correct rule is that if one do a lawful act on his own premises he cannot he held liable for consequential injuries that may result unless it was so done as to constitute actionable negligence.

The law of nuisance is not involved. *(Uline*v. *N. Y. C. & H. R. R. R. Co.,*101 N. Y. 98, 107.)

The distinction in the application of the rules of liability is clearly pointed out in the leading cases.

In *Hay*v. *Cohoes Co.*(2 N. Y. 159) a canal company was authorized to dig a canal. In so doing it was necessary to blast rocks with gunpowder, and fragments of rocks were thrown against and injured plaintiff’s adjoining lands and dwelling. The defendants were held liable for the injury, although no negligence or want of skill in executing the work was alleged or proved. A long line of cases, including *St. Peter*v. *Denison*(58 N. Y. 416), *Noonan*v. *City of Albany*(79 id. 470) and *Huffmire*v. *City of Brooklyn*(162 id. 584), in which the facts disclosed that there was a physical invasion of the lands damaged, or that the injury was the direct, immediate and necessary result of the act of the wrongdoer, followed the principle announced in *Hay*v. *Cohoes Co. (supra).*

*521In *Bellinger*v. *New York Central Railroad*(23 N. Y. 42) a railroad company was authorized to build a railroad across a creek adjoining plaintiff’s land. It bridged the creek. On occasions of freshets the land of the plaintiff was covered with ice and strewn with flood wood and rubbish, his soil was washed off and his fences were carried away. These effects were attributed by witnesses to the construction of the bridge and the embankment. , It was held that the property injured was not thereby taken, as the railroad company was acting with lawful authority under the sanction of the State; that the damages were consequential; and that unless the railroad company committed or omitted some act which constituted actionable negligence there could be no recovery. The rule there announced has been followed in *Atwater*v. *Trustees, etc.*(124 N. Y. 602), *Moyer*v. *N. Y. C. & H. R. R. R. Co.*(88 id. 351) and *Gordon v. Ellenville & Kingston R. R. Co.*(195 id. 137).

The law is, that where a railroad company is authorized to construct its road over a given route, which involves the necessity of crossing a stream running through its own property, and its operations are confined to its own land, and there is no trespass and nothing is disclosed by which it is proved that the injurious result must necessarily have followed the prosecution of the work itself, the inundation of the plaintiff’s land by the blocking up of the stream, caused by a collapse of the work in the course of construction, presents a case where the damages are consequential and are not recoverable unless the injury was caused by misconduct, negligence or unskiflfulness. (Go*rdon*v. *Ellenville & Kingston R. R. Co., supra; Prime*v. *City of Yonkers,*192 N. Y. 105; *Booth*v. *R., W. & O. T. R. R. Co.,*140 id. 267.)

This case was submitted to the jury upon the assumption that the defendant was absolutely liable, and the judgment entered upon the verdict against the defendant must be reversed.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.