#### The Deerpark Brew Company, Respondent, *v.*Port Jervis Water Works Company, Appellant.

Second Department,

December 30, 1908.

Watercourses — negligence — discharge of water from storage dam in time of flood — when owner not negligent.

A water company, maintaining a storage dam equipped with a spillway which can be raised or lowered, has a right to maintain the spillway during a rainstorm at a height sufficient to accumulate water up to the reasonable capacity of the dam, and is not bound to anticipate that the rain will continue and be so severe that subsequently the spillway must be lowered to prevent the dam from being washed out.

It is not negligent to equip a dam with a movable spillway in order to regulate the amount of water stored up and to discharge it in case it becomes too high.

Hence, a lower landowner, whose foundations were injured by the lowering of such spillway when a sudden flood which could not have been anticipated made the act necessary in order to preserve the dam itself, cannot recover upon the ground that the owner was negligent.

Appeal by the defendant, the Port Jervis Water Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 19th day of June, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*421
      *C. E. Cuddeback,*for the appellant.

*William A. Parshall,*for the respondent.

Woodward, J.:

The defendant in this action is a domestic corporation, organized for the purpose of supplying pure and wholesome water to the inhabitants of Port Jervis. In the discharge of this duty under its franchise from the State it had, prior to June 12, 1903, constructed certain reservoirs along the line of a brook at a considerable elevation above the city of Port Jervis. The particular reservoir involved in this action was known as Reservoir No. 1, and was constructed by building an earth dam across the valley through which the stream descended into and through the city. This dam was supplied with a spillway for the purpose of regulating the supply of water in the reservoir, and was so arranged that it could be lowered by removing boards from the same, such boards being about three feet long and five and a half inches in width. The plaintiff owned premises lower down the stream, adjoining those of the defendant, and it appears that the plaintiff’s predecessors in title had, under a written agreement with the defendant, changed the original course of the stream and it had been confined between walls, the channel through the defendant’s premises being somewhat wider than through those of the plaintiff. Prior to" the twelfth day of June the locality had been subjected to a severe drought, and the water in the reservoir appears to have been so low that practically no water was passing over the spillway and the stream was to all intents and purposes dry. On the 11th day of June, 1903, rain began falling at about twelve-thirty p. m. and ceased at about eleven-thirty o’clock on the following day, and it appears from the evidence that between the hours of six A. m. and eleven-thirty a. m. of the twelfth day of June the fall of rain was without precedent for a like number of hours in the records of the local weather bureau. The evidence is undisputed that just prior to June twelfth the water stood at nineteen feet and six inches, with the water lacking three inches of overflowing ; that at six p. m. of June twelfth the water had just reached the top of the spillway; that at five o’clock the following morning the water stood at nineteen feet and nine inches, a stream of three inches flowing over the spillway. There is no suggestion in the evidence *422that the defendant was not justified in maintaining the spillway at this height, or that it could have discharged its duty to the public at a less height. The evidence is still without dispute that at eight o’clock in the morning of June twelfth the rainfall continued with great violence, and that at that time the water had reached a height of twenty-two feet and three inches, having increased nearly two feet in two hours, and that the water had at this time reached a point where it seemed likely that it would overflow the earth dam, and thus menace not only the defendant’s dam, but the lives and property of the plaintiff as well as of others who were ■ occupying premises below the dam. With this situation confronting it, and with the president of the defendant and its superintendent present .upon the dam in consultation, it was decided that it was necessary to remove some of the boards from the spillway, not for the purpose of lowering the water in the reservoir, but for the purpose of preventing it rising higher, and the evidence is undisputed that while three of the boards, five and one-half inches wide, were taken from the spillway between eight and eight-thirty a. m. of the twelfth of June, the water at ten o’clock was two inches higher than at eight o’clock, and the danger line being then near, two more boards were removed, with the result that at eleven o’clock the water still stood at twenty-two feet and five inches. The evidence is conclusive that the damage done to the plaintiff in undermining the wall of the stream, destroying bridges, fences, etc., was all done within the half hour between eight and eight-thirty a. m. of the day in question, and it is not to be doubted that the damage was produced immediately by the act of the defendant in taking down the three boards at the spillway.

Does this constitute actionable negligence under the circumstances of this case? We think not. There is no evidence in this case that the defendant was negligent in the construction of this dam, or in maintaining it, as was done; there is no question that the boards upon the spillway were put there for the very purpose of permitting their use to regulate the supply of water in the reservoir; for the purpose of permitting them to be taken off whenever the water in the same became too high, and we shall get a better view of the question perhaps if we consider the position in which the defendant would have been placed if it had con*423structed a dam without a spillway, and without provision for letting off the water in an emergency. If this dam had been constructed without this spillway, and this deluge of water had come and had washed out the dam, and produced not only the present damages which the plaintiff has sustained, but other and greater damages, does any one question that the defendant would be liable ? Every practical man in the community would have said at once that it was the duty of the defendant to have provided against such a contingency in the construction of the dam. So no negligence is, dr could be, urged against the defendant in so far as the construction or maintenance of the dam is concerned. It was constructed upon its own land in a proper manner, and had appliances designed to meet just such a situation as actually happened. The question is, then, whether there was negligence in making use of this spillway for the very purpose for which it was designed. Undoubtedly if the defendant on the lltli day of June, 1903, with the water standing in the dam at something over nineteen feet, in entirely normal conditions, had suddenly lowered the spillway so that a flood of water was precipitated on the plaintiff’s premises, there would be negligence. But nothing of the kind occurred. The defendant was under an obligation to furnish water for the community. When it began raining on the eleventh day of June the water stood in the dam about two feet and a half below the danger point; below the point where it was likely to overflow the dam and work its destruction as well as the destruction of the property of the plaintiff and others. At six o’clock in the evening there had been a rise of three inches, and by five o’clock the following morning there had been a further rise of three inches. This let a stream of three inches over the spillway. Clearly there was at this time no reason for taking any radical steps; the progress of the storm was being watched, and there was no reason to anticipate that it would continue for any great length of time. But between five and eight o’clock the rain continued very heavy, and at eight o’clock the president of the defendant and the superintendent, being present upon the dam and finding that the water had increased in height nearly two feet in two hours, and that it was fast approaching a point where it would overflow the dam, determined to lower the spillway, and this was done to the extent of about *424sixteen and one-half inches. That there was no excessive removal of the boards of the spillway is shown by the fact that two hours later the water had increased in height by two inches, and that with two more of the boards removed the water stood at the same height an hour later, or at eleven o’clock, at about which time the storm abated. Where is the negligence in this ? It might be said that if the defendant had removed the boards, or a portion of them, before eight o’clock, the water might have been permitted to flow out more gradually, and thus the results to the plaintiff might have been averted. But a very complete answer to this is the fact that the defendant had a, perfect right to accumulate the water up to the fair limits of its dam, and it was not bound to anticipate that a rainstorm, would last for hours and till up the reservoir so suddenly, with the spillway standing at its normal height and taking care of a stream of considerable proportions. A rise of two feet in two hours did not give much time for calculation, and it was reasonable to expect a cessation of the rain at any moment; common experience teaches us that June rains do not often maintain great violence for long periods of time. When, however, the situation became obvious, and the water was advancing rapidly in spite of the relief offered by the spillway at its normal opening, what was there for reasonably prudent men to do except to open the spillway farther, and thus to reduce the danger to a minimum ? Was the defendant, through its officers, to stand up and see the dam washed out without doing anything to prevent it ? They could not control the rain ; the best they could do was to let' off the water. as rapidly as it accumulated, if that were possible, and the evidence shows without dispute that they did this with almost mathematical accuracy, for with the rain still falling, at the end of two hours, the waters had increased in height only about two inches. Clearly under the undisputed evidence in this case, with the waters advancing as they were, it would have been criminal negligence on the part of the defendant not to have relieved the dam of this pressure of water, threatening to overthrow it, to the ruin of all property along the valley beneath and the danger to those living there, and having done this without unnecessarily precipitating the waters of the dam, the defendant cannot be properly charged with the damages. It is to be observed that the defendant was not, as sug*425gested by counsel, selfishly impounding waters at the risk of working damage to the plaintiff; it maintained its spillway at nineteen and one-half feet, a height which no one suggests was improper. When the waters reached that point they began flowing over the spillway, and there is not the slightest evidence that the defendant sought to retain a particle of water above that point. On the contrary, the spillway appears to have been serving its purpose, for at five o’clock on the morning of June twelfth it was flowing a stream of three inches over the board, and this continued apparently with increasing volume until the other three boards were* taken away, when the waters had advanced, in spite of this spilling, two feet in as many hours.

It seems to us that the evidence disclosed a high degree of care on the part of the defendant; that it intelligently and prudently made use of the spillway to prevent a greater disaster to the plaintiff, and that, the flood having carried the water high above the normal point fixed by the spillway, the result to the plaintiff was due to the violence of the storm and not to any neglect of a duty which the defendant owed to it.

Had the case been submitted to the jury to find whether the defendant was negligent for not removing the flash boards earlier, a different question might be presented.

Having reached the conclusion that as a matter of law under the evidence the defendant was not liable, we are' not called upon to consider the alleged error urged.

The judgment and order appealed from should be reversed and a new trial granted.

Jenks, GIaynor, High and Miller, JJ., concurred.

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