#### GILLETT v. TRUSTEES OF VILLAGE OF KINDERHOOK.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

1. Municipal Corporations—Torts—Discharge of Sewage.

A village is liable for injury to land caused by discharging a sewer on it.

3. Appeal—Review—Failure to Except.

Where a case is submitted to the jury on an erroneous rule of damages, the general term may reverse the judgment, though no exception was taken.

8. Measure of Damages—Flooding Land.

The measure of damages caused by flooding land is not the difference in value of the land before the flooding and at the time of the trial, but is the loss of the rental value up to the commencement of che action, the value of property destroyed by the flooding, and any permanent injury to the land.

Appeal from circuit court, Columbia county.

Action by Asa Gillett against the trustees of the village of Kinder-hook to recover damages for injuries to plaintiff's land caused by the improper construction of a sewer. From a judgment entered on a verdict in favor of plaintiff for $2,700.75, and from an order denying a motion for a new trial, and refusing to set aside the verdict on the ground that it was contrary to evidence and contrary to law, defendant appeals. Reversed ■

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Parker & Fiero (J. Newton Fiero, of counsel), for appellant.

A. H. Farrar, for respondent.

PUTNAM, J.

We are of opinion that, on the testimony in this case, the jury could properly have rendered a verdict for the plaintiff for whatever damage he was shown to have sustained by reason of defendant's wrongful act in collecting and throwing on his premises the sewage and surface water from its streets. The principle decided in Urquhart v. City of Ogdensburg, 91 N. Y. 67, does not apply to such a case as this. The liability of the defendant is not so much on account of the grade of its streets, and its sewers therein, as of its negligent act in failing to provide a proper outlet for the discharge of the sewage. The doctrine held in Noonan v. City of Albany, 79 N. Y. 470; Chapin v. City of Rochester, 110 N. Y. 273, 18 N. E. 88; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261—268, 27 N. E. 1030; and Schriver v. Village of Johnstown, 71 Hun, 232, 24 N. Y. Supp. 1083—applies to this case. Without attempting to discuss the • evidence, the jury could very well find therefrom a failure on the part of defendant to take proper measures to discharge the surface water and sewage from its streets into the creek. But we have reluctantly come to the conclusion that a new trial should be granted, for the reason that during the trial, and on the submission of the case to the jury, an improper rule of damages was adopted. In the court below, no exceptions were taken by defendant that require discussion, and no objections appear to have been made to the rule of damages adopted. There are cases, however, holding “that, when a case has been submitted at a circuit to the jury upon a theory which is wholly . *1045erroneous, the general term has power, and it is its duty, to grant a new trial because of the erroneous instruction, though an exception was not taken.” Whittaker v. Canal Co., 49 Hun, 400-405, 3 N. Y. Supp. 576; Mandeville v. Marvin, 30 Hun, 282; Lattimer v. Hill, 8 Hun, 171, 172; Hamilton v. Railroad Co., 53 N. Y. 25-27.

The rule of damage adopted on the trial was the difference in value of the plaintiff’s premises before the flooding and at the time of the trial. ' It is true that there was some evidence given showing the destruction in several years of a quantity of hay on the plaintiff’s farm, in consequence of the same being flooded, but the evidence in this regard was not sufficient to sustain the verdict of the jury. The case was evidently tried and submitted on the theory that plaintiff was entitled to recover the difference in value of his farm before it was flooded by defendant’s sewer in 1884 and the value at the time of the trial. This theory was clearly not correct. Plaintiff was entitled to recover the loss in the rental value of his premises up to the time of the commencement of the action; or he could have recovered the value of the hay destroyed, and, had it been made to appear that any permanent injury to the premises was occasioned by the flooding, he could have recovered for that injury. As suggested in Hartman v. Line Co., 71 Hun, 367, 368, 25 N. Y. Supp. 24, the case was tried on the theory that the flooding of plaintiff’s premises would last forever,, and that hence plaintiff in this action could recover the total and permanent depreciation which it caused in the market value of his land. But the plaintiff, after collecting the judgment in this action, might commence another one against defendant, and obtain a perpetual injunction; or he could, in a subsequent action, recover damages since the date of the commencement of the first action. And, if the rule of damage adopted on the trial was correct, he could again recover in such subsequent action the same damages,—the difference in value between the plaintiff’s premises before being flooded and at the time of the trial. It is evident that the rule of damage adopted on the trial was not the proper one. Hartman v. Line Co., 71 Hun, 367, 25 N. Y. Supp. 24; Reichert v. Backenstross, 71 Hun, 516, 24 N. Y. Supp. 1009; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Duryea v. Mayor, 26 Hun, 120; Uline v. Railroad Co., 101 N. Y. 98-116, 4 N. E. 536; Covert v. Valentine (Sup.) 21 N. Y. Supp. 219. It seems, therefore, that the special term should have granted defendant’s motion for a new trial. The judgment was unsupported by any legitimate evidence. As above stated, it could not be sustained for the amount rendered, on the testimony produced by plaintiff showing the destruction of a quantity of hay in consequence of the premises being flooded, and the jury could not properly base a verdict on the testimony produced as to the difference in value between the plaintiff’s farm in 1884 and at the time of the trial. Judgment reversed, and a new trial granted; costs to abide the event. All concur.