#### ISAAC D. SLEIGHT, Respondent, *v.*THE CITY OF KINGSTON, Appellant.

*Municipal corporation*— *sewers*— *liability for dischm'ge of contents of, into a fm'ry slip.*

Tlie plaintiff, for more than forty years, ran a ferry across the Rondout creek from the village of Rondout to Sleightsburgh, and had the right to enter into a slip in Rondout to receive and discharge passengers. In 1867, the said village, for the necessary drainage thereof, caused a new sewer to he constructed, by which they diverted an old water-course from its former channel and discharged the same, together with surface water and sewage, just above the said slip, whereby they filled the same with sand and dirt and prevented him from (Entering the same.

In an action by him to recover damages therefor, *held,*that he was entitled to recover.

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis aetion by tbe court without a jury.

Tbis action was commenced against tbe village of Eondout, on *595tbe 19tb day of October, 1871, by tbe plaintiff, wbo, for more than forty years, bad run a ferry-boat from tbe Tillage of Bondout across tbe Bondout creek to Sleightsburgh, and was subsequently continued against tbe city of Kingston, wbicb, in 1872, succeeded to all tbe rights and liabikties of said Tillage. Tbe action was brought to recoTer damages occasioned by tbe wrongful act of tbe defendant in constructing a sewer, by which an ancient water-course was direrted from its former channel and discharged, together with surface water and drainage, just aboTe a ferry slip wbicb tbe plaintiff was entitled to enter to receire and discharge passengers, whereby tbe same was filled up and obstructed by sand and dirt.

*S. L.*Stebbms, for tbe appellant.

*M. SúIioonmaJcer,*for tbe respondent.

Bockes, J.:

That tbe plaintiff bad tbe right to use tbe slip or landing-place described in tbe complaint for tbe purposes of bis ferry cannot be denied, and it is also indisputable that be was in such use at tbe time and times bis right was interfered with and injuriously affected by tbe opening of tbe new sewer. Tbe learned judge before whom tbe case was tried finds, upon sufficient evidence, that a great quantity of dirt, sand and graTel was carried down in tbe new sewer just aboTe tbe plaintiff’s slip, and, by tbe natural action of tbe water thereon, created a bar or obstruction across its entrance, wbicb hindered and preTented him at times from entering it with .bis-ferry boat for tbe reception and discharge of freight and passengers according to bis custom. His right to ferry at this place was sufficiently proTed. He was in tbe actual and undisputed exercise of such right, and bad so exercised it uninterruptedly for a great number of years. Tbe fact that tbe stream crossed by bis ferry was a public highway raised no presumption against bis right to ferry, for be was entitled to use this highway in common with all others for all public and lawful purposes. He might run bis boat on tbe stream, and, with tbe privilege to land, bis right to ferry became complete, on compliance, of course, with tbe law as to license. Actual occupation of the banks of the stream raised a presumption *596of right to use them for the purpose of the ferry. No attempt was made on the trial to overcome this presumption. But superadded to sucb presumption of right, the plaintiff established his title to the slip alleged to have been injuriously affected by the defendant’s acts by positive grant. The plaintiff’s right to maintain his ferry, and to make landings at the point in controversy, seem well established.

Thé question then is, whether the defendant unlawfully interfered with the plaintiff’s property and rights.

There was, as it seems, a diversion of the water from its natural current into and through the new sewer; and there was also a collection of the surface water to some extent, which was turned into it and somewhat increased the volume of its discharge. The waters so gathered were conducted through the sewer and discharged into the creek at a point just above, and in close proximity to, the plaintiff’s slip. Those waters carried down with them great quantities of dirt, sand and gravel, which, from natural causes, were deposited at and across the entrance to the slip, to an extent which at times prevented the plaintiff from entering with his ferry boat to receive and land passengers and freight. Thus were his rights impaired by a serious interruption of his business.

The city authorities, in the exercise of municipal power could not divert from its natural channel and turn a stream of water upon the plaintiff’s land with impunity. *(Bradt*v. *City of Albany,*12 N. Y. Sup. Ct. Rep. [5 Hun], 592; *Thompson*v. *Allen,*7 Lans., 459 ; *Byrnes*v. *City of Cohoes,*12 N. Y., Sup. Ct. Rep. [5 Hun], 602.) In the last case cited, it was laid down that although public officers should be fully protected in the proper discharge of their' duties, yet when they go so far as to create a nuisance on the land of another, they stand in the same position as private individuals, and it was there further said that if the effect of turning the water on another’s lands, was to destroy his cultivated fields, then it created a private nuisance.

The same rule of liability would obtain in case surface water arising from rains and snows, was collected into a single channel and cast in large volume upon the premises of another. *(Bastable*v. *City of Syracuse,*15 N. Y., Sup. Ct. Rep. [8 Hun], 581.) The law applicable to misfeasance and non-feasance of municipal corpo*597rations and to public officers who may exercise both judicial and ministerial powers, was well considered in this case, and need not be bere further considered. (See *Rochester White Lead Co.*v. *City of*Rochester, 3 N. Y., 463 ; *Conrad*v. *Village of Ithaca,*16 id., 158; *Richardson*v. *City of*Boston, 19 How. [U. S.], Rep., 263 ; *Barton*v. *City of*Syracuse, 37 Barb., 292 ; in Ct. of App., 36 N. Y., 54.) In the case in 3 Comstock, it was said, in substance, that it was tbe duty of a municipal corporation to construct its sewers so that they should not become nuisances ; and in *West*v. *Village of Brockport*(16 N. Y., 161, note) the same doctrine is fully enunciated. So, too, Judge Grier says, in *Richardson*v. *City of Boston (supra),*that it may be the duty of the city to make drains along or under the streets, but they cannot be so constructed as to create nuisances to the adjoining owners. Within the authorities cited, and there are others of the same import, the learned judge was well authorized to hold the defendant liable on the facts found in this case.

We are of the opinion that the record discloses no error of which the defendant can justly complain. Judgment affirmed, with costs.

LeaeNed, P. J., concurred ; BoardmaN, J., taking no part.

Judgment affirmed, with costs.