#### Emily Clark, Resp’t, *v.*City of Rochester, Appl’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed January 25,*1887.)

1. MUNICIPAL CORPORATION — STREETS — LIABILITY OP CORPORATION POR damages — Nuisance.

The City of Rochester, pursuant to an ordinance of the Common Council, improved Edward street, in said city, by grading it. Before the improvement the surface water from the territory lying easterly of said street, and the drainage from three other streets passed over Edward street to the west and south of plaintiff’s premises. After the improvement of Edward street the surface water from the land east thereof, and the drainage from said three streets were collected in the gutters along Edward street and conducted to the north end thereof and opposite the premises of plaintiff, where they spread out over the surface of the street and there remained, being covered with slime and emitting offensive odors. Heavy showers of-rain flowed this substance over the sidewalk and upon premises of plaintiff, flooding the eellar to her dwelling, washing oiit the bed of the driveway and so polluting the water in .the well thereon as to compel her to discontinue the'use thereof. *Meld,*that the collecting the water from said land and streets, and conducting the same in the gutter upon plaintiff’s premises was an unauthorized invasion of her property. That the collection of a considerable body of stagnant water in front of said premises, preventing the beneficial enjoyment thereof, created a private nuisance. That the failure of the city to provide a drain or sewer' to carry off said water, made the city liable to plaintiff for such, damage as she sustained by reason thereof. *Cases cited and distinguished.*

2. Same — Evidence — What may be proved — Measure op damages.

0. was allowed to introduce evidence tending to show that she and other inmates of her dwelling had suffered illness occasioned by the deposit of unwholesome matter upon the premises by the flood of water complained of. *Held,*competent for the purpose of showing the decrease in the rental value of the premises, which was the true measure of damages.

Appeal from a judgment entered upon tbe verdict of a jury in Monroe county court and from an order denying a motion for a new trial.

IN about tbe month of May, 1882, Edward street in tbe city of -Rochester was improved in pursuance of an ordinance or tbe common council. Tbe grade of tbe street was established, and tbe improvement completed, in all respects, in accordance with such ordinance.

Edward street runs in a northerly direction, and at that time terminated at a high, tight board fence at the north end. Plaintiff is and was at the time of such improvement the owner of the premises No. 37 Edward street situated upon the west side of said street, the northerly line thereof being the north line of end of said street, upon said premises was a dwelling house occupied by plaintiff, also a barn.

Two streets, to wit: Hudson Park and Gilmore street intersect said Edward street upon the east side thereof within the distance of about 400 feet southerly from the north end of Edward street. These streets, Hudson Park and Gilmore street, are not continued west’ of Edward street. The improvement of Ed*457ward street consisted in grading the same and in constructing a plank side-walk on each side thereof. In grading, depressions were filled at some points and at others filling was put in, so that when the work was completed the street from Hudson Park north to the end thereof had a uniform grade, with a gutter upon each side nine inches in depth below the sidewalk and the crown of the street at the center thereof.

Before the improvement of Edward street the surface water from the territory lying easterly of said street, and the drainage from Hudson Park and Gilmore street, passed over Edward street to the west and south of the plaintiff’s premises. After the improvement of Edward street the surface Avater from the lands east thereof and north of the south line of Hudson Park and the drainage from Hudson Park and Gilmore street were collected in the gutters along Edward street and conducted to the north end thereof and opposite the premises of plaintiff, where they spread out over the surface of the street and there remained, being covered with slime, and emitting offensive odors. HeaAry showers of rain flowed this substance over the sidewalk and upon the plaintiff's premises, flooding the cellar to her dwelling, washing out the bed of the driveway, and so polluting the Avater in the well thereon as to compel her to discontinue the use thereof. This action Avas brought to recover damages for these injuries. The plaintiff had a verdict for $300. Defendant’s motion for a new trial Avas denied and from the judgment entered on such verdict and from the order denying- a neAV trial this appeal is taken.

*Daniel Wood,*for resp’t; *Ivan Powers,*for appl’t.

Childs, J.

The defendant by its common council had the power under its charter to inaugurate and carry out this improvement and it having been completed in accordance Avith the plans adopted by such council, it is contended by the defendant that the exercise of such poAver was in its nature judicial or discretionary and therefore the- defendant is not liable in damages for any injury sustained by the plaintiff by reason thereof.

Numerous cases in this and other states have been cited by defendant in support of tins contention. An examination of the leading cases cited, avüI sIioav that while they establish the general rule contended for, that the case at bar is not Avithinthe rule.

In *Wilson v. The Mayor,*etc., 1 Den, 595, the damages were occasioned by surface water naturally falling upon the plaintiff’s premises, but prevented from floAving off by the changes made, in grading its streets by the city ; it Avas held to OAve no duty to its citizen to furnish drainage for the Avater naturally collected *458on bis premises, and that no liability resulted from the change in the street made tinder

In *Radcliff’s Executors v. The*Mayor, etc., 4 Com, 195, the city regularly laid out and opened a street, afterwards they proceeded to grade the street, in order to bring it into public use, and in so doing remoyed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion qí his land fell; there was no allegation of malice, or want of care or skill. It was held that the adjacent owner could not maintain an action on the case for the damages sustained by him, there being no want of care or skill in the execution of the work. BboNSON, Ch. J., in the opinion in this case says :• — ■

> “As a general rule, a man who exercises proper care and skill,' may do what he will with his own property, he may not, however, under color of enjoying his own, set up a nuisance which deprives another of the enjoyment of his property. Nor can he rightfully enter or cast anything on the land of another, unless he have license from the owner, or an authority in law for do ing the act. And the absence of a bad motive will not save him from an action.” .

After further illustrating this proposition the learned judge continues : “ The case before us seems to fall within the principle that a man may enjoy his land in the way such property is usually enjoyed, without being answerable for the indirect or consequential damages which may be sustained by an adjoining land-owner.. But if that be a doubtful position, there is a class of cases directly on the point in judgment, which hold that persons acting under an authority conferred by the legislature, to grade, level, and improve streets and highways, if they *exercise proper care and*shill, are not answerable for the consequential damages which may be sustained by those ' who own lands bounded by the street or highway.”

In *Mills v. City of*Brooklyn, 32 N. Y., 489, Judge DeNIO, says (page' 495): “The grievance of which the plaintiffs complain, is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of a certain capacity was built, but it was insufficient to carry off all the water which, came down in a rain storm,, and the plaintiff’s premises were, to a certain extent, unprotected. Their., condition was certainly no worse than it would have been if no sewer at all had been constructed ; so far as the one laid down operated it relieved the plaintiff’s lot, but the relief was.not adequate,” and it was held that the corporation was not liable.

The case of Smith, *v. The*Mayor, 66 N. Y., 295, related to a sewer. There was no proof of any defect in the sewer as originally constructed. After a heavy shower, the sewer overflowed, and. flooded plaintiff’s premises. It appeared that the overflow was caused by astoppage of the sewer with sand, etc., washed in *459from tbe streets. It was beld that tbe corporation could only be made liable for damages upon proof of some fault or neglect upon its part'either in tbe construction of tbe sewer or in keeping it in proper repair.

Tbe case of *Lynch*v. *The*Mayor, 76 N. Y. 60, was a Gase where, as stated by Earl, J., “ The defendant caused tbe grade of tbe avenue to be raised twenty feet above tbe surface of the adjoining lands; that they failed and neglected to provide any means' of carrying off tbe rain water, which fell upon tbe avenue, or to prevent such water from draining upon tbe adjoining lands. There is no allegation that defendants, by this work upon tbe avenue, diverted any stream of Avater upon plaintiff’s lot, or that they *collected surface water into a channel and thus threw it wpon* such*lot, or that they caused any more water to flow upon the lot than would have flowed there if the avenue had not been raised.”

The judgment of the general term affirming the judgment for defendant entered on the dismissal of the complaint at the circuit was affirmed.

It will be obserAed from this examination of the cases, relied upon by the defendant, in support of his claim, that they contain no warrant or authority for a corporation to invade the property of a citizen or by the failure to exercise proper care and skill, to' create a nuisance public or private, to the damage of another.

That the act of defendant in collecting the Avater from the territory easterly of EdAvard street and from Hudson Park and Gilmore street, and conducting the same in a channel or gutter upon the premises of plaintiff, was an unauthorized invasion of the property is beyond doubt, and it is equally clear that the collection of a considerable body of stagnant water in front of plaintiff’s premises preventing the beneficial enjoyment thereof, as disclosed by the evidence, created a private nuisance.

That the exercise of an ordinary degree of care and' skill in the performance of this Avorlc would have avoided the damage to' plaintiff is apparent. Edward street was a *cul du sac,*across the north end thereof was a high tight board fence cutting off all opportunity for drainage over the surface in that direction; under these circumstances it manifestly became the duty of the defendant, if it saAV fit, to collect and .conduct a body of water to this point in the street, to provide some manner for disposing of it other than to turn it upon the lands of the plaintiff, or to allow it to spread over the surface of the soil and there stagnate until it soaked into the ground or evaporated. It is undoubtedly true that before this improvement of Edward street, Avas undertaken the defendant could not have been required to construct a sewer or drain for the purpose of carrying aAvay any of the surface Avater of this locality, but here they created the necessity for such relief by the failure to exercise such a care and skill in *460tbe completion of sucli improvement as was required and hence it became its duty to provide such relief in some manner, and for the failure to do so it is liable to the plaintiff for such damage as she has sustained by reason thereof.

The case shows that it was entirely practicable to dispose of this water in such a manner as to avoid the injury complained of, and that the difficulty has been remedied, since the commencement of this action, by the extension of Edward street to Yose street on the north, a distance of about one hundred feet. This precise question was considered by the court of appeals in *Byrnes*v. *City of*Cohoes, 67 N. Y., 204, and it was there held, Rapallo, J., delivering the opinion of the court, that “ Diverting the water from its natural course so as to throw it upon the plaintiff’s premises, without providing .any outlet, and thus injuring his building, was a wrong for which he was entitled to redress. The cases cited on the part of the appellant (the defendant) to the effect that a municipal corporation is not liable for an omission to supply drainage or sewerage, do not apply to a case where the necessity for the drainage or outlet is caused by the corporation itself.”

The question wás again considered by the same court in *Noonan*v. Albany, 79 N. Y., 470, and it was held that a municipal corporation has no greater right than an individual to collect the surface water from its lands and streets into an artificial channel, and to discharge them upon the lands of another. To the same effect is *Bastable*v. Syracuse, 8 Hun, 587.

The latest exposition of the law on'this subject, by the court of appeals, is to be found in *Seifert*v. *City of Brooklyn,*101 N. Y., 136. This was an action brought to recover damages caused to plaintiff’s premises by defendant’s negligence in the construction óf a sewer.

The defendant invoked the principle, exempting municipal corporations from liability for damages, occasioned through the exercise of judicial functions, by its officers, as a defense to the action. Rtjger, Ch. J., in an able and exhaustive opinion in which the authorities are extensively reviewed, says: “ Municipal corporations have quite invariably been held liable for damages occasioned by acts, resulting in the creation of public or private nuisances, or for an unlawful entry upon the premises of another. whereby injury to his property had been occasioned. This principle has been uniformly applied to the act of such corporations in constructing streets, sewers, drains, and gutters, whereby the surface water of a large territory, which did. not naturally flow in that direction, was gathered into a body and then precipitated upon the premises of an individual occasioning damage thereto.” The cases heréin before cited, with others, are cited in support of this proposition.

Further quotations in support of the rule contended for by the *461plaintiff, might be made from the opinion in this case, but sufficient reference has been made thereto, to show that the rule established is decisive of the case at bar, and that for the act complained of, the plaintiff had a remedy in the action for damages, notwithstanding the general rule exempting municipal corporations, invoked by the defendant.

Upon the trial testimony was offered by the plaintiff, and received under the objection and exception of defendant, tending to show that the plaintiff and other inmates of her dwelling, had suffered illness, occasioned by the deposit of unwholesome matter upon her premises by the flood of water complained of.

This testimony was received as bearing on the question of the rental value of the plaintiff's premises, and not for the purpose of founding any claim for damages by reason of such illness, such was the statement of the judge made in ruling upon the defendant’s objection, and that this was the sole purpose for which the testimony was .admitted is made clear by the charge of the judge, who said to the jury : “ The only element of damages that you can take into consideration in this action is the difference in the rental value of the premises between the time of the creation of the nuisance and the time it was abated,” and again : “ The other matters that have been suggested to you, for instance, the injury to the health of the plaintiff’s family, are not to be taken into consideration by you; except as bearing on the general question, as to what is the rental value of the premises.” It further satisfactorily appears from the amount of the verdict rendered that the jury followed the instructions of the court and considered only the question of the difference in rental value of the premises, which was the true measure of damages (67 N. Y., 267). We are of the opinion that the testimony objected to was competent and properly received for the purpose indicated, but if this were not so, the defendant has not been injured thereby and therefore no error was committed requiring a reversal of the judgment.

Other exceptions were taken by the defendant to the refusal of the court to direct a verdict for the defendant, and to the refusal of the court to charge certain requests, made by defendant, and to certain portions of the charge as made.

We have examined the rulings complained of and find no error in either.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed.

Haight and Bradley, JJ., concur.