Wallace v. Drew
New York Supreme Court
APPEAL from a judgment entered upon the report of a referee. The action was brought to recover damages for, and to restrain, the obstruction of a water course running through the lands of the defendant Haney Drew.
Read the full summary
APPEAL from a judgment entered upon the report of a referee. The action was brought to recover damages for, and to restrain, the obstruction of a water course running through the lands of the defendant Haney Drew. On the trial before the referee, when the plaintiff rested, the defendant Clark Drew, moved for a dismissal of the complaint as against him, on the following grounds: 1st. That the plaintiff has failed to prov.e a cause of action against the defendant Clark Drew. 2d. That the evidence shows that the defendant Clark Drew, had no proprietary interest whatever in the premises in…
1Opinion of the Court
By the Court, Johnson, J.
It is well settled, that every person through whose land a stream of water flows, may construct embankments and other guards on the bank to prevent the stream washing the bank away and overflowing and injuring his land. But in doing this, he must be careful so to construct them as not to throw the water upon his neighbor’s lands, where it would not otherwise go, in ordinary floods. If he does, he will be liable for the injury. This is upon the familiar principle that a person must so use his own as not to injure another. But this rule does not apply to floods…
2Cases cited3 opinions
- Auchmuty v. HamCourt for the Trial of Impeachments and Correction of Errors · 1845
- Van Steenburgh v. TobiasNew York Supreme Court · 1837
- Partenheimer v. Van OrderNew York Supreme Court · 1855
3Cited by5 opinions
- Chipman v. . PalmerNew York Court of Appeals · 1879
- O'Connell v. East Tenn., Va. & Ga. Railway Co.Supreme Court of Georgia · 1891
- Cairo, V. & C. Ry. Co. v. BrevoortU.S. Circuit Court for the District of Indiana · 1894
- Carhart v. StateAppellate Division of the Supreme Court of the State of New York · 1906
- Chipman v. PalmerNew York Supreme Court · 1877