#### Antonio Laduca, Respondent, *v.*Henry Draves, Appellant.

Fourth Department,

May 3, 1911.

Water and watercourses — surface water — ditches casting water on highway — duty of highway commissioner — obstruction of ditch — damages. , .

While a landowner has the right to drain his land and make ditches to protect his crops from injury, he has no right to collect drainage water and cast it upon the highway in a volume in excess of the natural flow at that point to the detriment of the roadbed; and if a landowner do so, the highway commissioner may do what is reasonably necessary to protect the highway and may go upon the owner’s land and close the ditch.

Where a landowner collected the surface water from a large part of his farm in a ditch so as to protect his vineyard and east the waters so collected upon the highway in excess of the natural volume at that point so that the roadbed was injured, he cannot recover damages from the highway commissioner who, for the purpose of protecting the highway, went upon his land and by closing the ditch turned the water back on the fields so that the plaintiff’s vineyard and crops were injured.

Appeal by the defendant, Henry Draves, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 24th day of January, 1910, upon the verdict of a jury for $175; also from an order entered in said clerk’s office on the 3d day of February, 1910, denying the defendant’s motion for a *160new trial made upon the minutes, and also from an order entered on the 24th day of January, 1910, permitting plaintiff to amend his complaint and to file the same *nunc pro tunc*as of the date of the trial.

*William S.*Stearns, for the. appellant.

*George J.*Dikeman,'for the respondent.

Kruse, J.:

The judgment from which the defendant appeals is for damages sustained by flooding th¿ plaintiff’s land and injuring his vineyard .and crops, wrongfully, caused by the defendant, as the plaintiff contends.

The controversy is between the defendant, a highway commissioner, and the plaintiff, the owner of a farm adjoining the highway. A ditch on the plaintiff’s farm.discharged its waters into the highway. The defendant, for the purpose of protecting the highway, obstructed the ditch, and turned the water back on the plaintiff’s land, causing the damage.

The primary; question presented by this appeal is whether. the defendant could rightfully do so. He was beaten in.the court below and now appeals. ■ '

The plaintiff’s farm is situate on the east side of the highway. The general slope of his farm and the one immediately north is toward the northwest, so that the surface waters naturally flow in that direction. There is a ditch extending east and west. on the plaintiff’s farm, near the line between the two farms. The west end of the ditch terminates within the bounds of the highway and connects with the highway ditch on the east side thereof, which runs north and south. Immediately north.of the ditch and east of the highway the plaintiff has a vineyard, one row of which seems to be within the' bounds of the highway.- Plaintiff claims to own the fee of the east half of the highway adjoining his farm, and I think we may fairly assume that to be a fact. The ditch has- been there for many years. It catches the waters from the adjoining farm and prevents then flow over the plaintiff’s land beyond the ditch. The waters so collected flow westerly in the' ditch to the highway. The waters of the ditch come into the highway in such volume *161and force as to wash, out and make a hole in the roadbed several feet deep. Eocks had been rolled into the hóle to protect the road, but the washing and impairment of the road continued. Thereupon the defendant caused the ditch to be obstructed, with the result that the waters were turned back onto the plaintiff’s land, as has been stated.

There can be no question but that the ditch was maintained for the purpose of protecting the land to the north of it, over which the waters would naturally flow but for the ditch. The plaintiff in his complaint alleges that the purpose of the ditch was to protect his vineyards and orchard from the surface waters, which would otherwise wash through the vineyards and orchard and injure them, and the testimony of the former owners of the farm is to the same effect. The plaintiff frankly admits that the reason he keeps the ditch open is to prevent the water from running onto the grapes, and adds: “I thought I would send it down onto the highway.”

The judge charged the jury, in substance, that the plaintiff had no right to collect the waters from a large area and bring them to one point and cast them upon the highway, but refused to charge that the plaintiff had done so, leaving that a question of fact for the jury, to which the defendant excepted.

That, as it seems 3⁄8> me, is precisely what the plaintiff did. He had the right to drain his land and to make ditches to protect his vineyards and crops from injury, but in doing that he could not collect the waters in the ditch and cast them upon the highway in quantity or volume in excess of the natural, drainage, to the detriment of the highway. *(Foot*v. *Bronson,*4 Lans. 47; *White*v. *Sheldon,*35 Hun, 193; S. C., 8 N. Y. Supp. 212; *Tremblay*v. *Harmony Mills,*171 N. Y. 598, 601; *Branson*v. *N. Y. C. & H. R. R. R. Co.,*111 App. Div. 737.)

There are other circumstances which deserve some attention. The plaintiff contends that the defendant went beyond the highway upon his farm and opened the ditch, and the jury was instructed at the request of the plaintiff’s counsel that if he did so he was liable for damages naturally resulting therefrom, to which the defendant excepted. I do not think that necessarily follows. If the plaintiff gathered together the surface waters *162in the ditch and wrongfully cast them upon the.highway to the detriment thereof, as has been'stated, the defendant in the exercise of his duties as highway commissioner had a right to do what was reasonably necessary to protect the highway, and if it was necessary to go upon the plaintiff’s adjoining farm and open the ditch there, I think he could do so without subjecting himself to the damages resulting therefrom. It was his duty to protect the highway, and if he did no more than was necessary to that end, the plaintiff, who wrongfully caused the condition, cannot justly complain of the consequences resulting therefrom to his harm. *(Cook*v. *Harris,*61 N. Y. 448; *Kellogg*v. *Thompson,*66 id. 88; *Driggs*v. *Phillips,*103 id. 77; *White*v. *Sheldon, supra.)*

The plaintiff also contends that the highway ditch itself was dammed up, resulting in overflowing his lands; but it is not very clear that any but the waters which had been collected in the east and west ditch on the plaintiff’s farm and thrown upon the highway, were set back. The defendant highway commissioner would have no more right to collect the waters in the. highway ditch and cast them upon the plaintiff’s- adjoining land than the plaintiff would have to collect the surface waters on his farm and throw them into the highway. *(Moran*v. *McClearns,*63 Barb. 185; *Tremblay*v. *Harmony Mills, supra.)*

As regards the order allowing the amendment -to the complaint, it may be proper to suggest that since a new trial is to be had, the plaintiff, if he desires to amend his complaint by increasing the damages or otherwise, should do so before trial, upon a proper application therefor.

The judgment and orders appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and orders reversed and new trial ordered, with sosts to appellant to abide event. -