McKee v. Delaware & H. Canal Co.
New York Supreme Court
Appeal from circuit court, Albany county. The plaintiff has been the owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel, and drained his flat land into it, so that the flat, which had been boggy and useless land, has become valuable meadow land. In 1871 defendant constructed quits own land a dam on this stream above plaintiff’s land.
Read the full summary
Appeal from circuit court, Albany county. The plaintiff has been the owner of a farm since 1851. Through this ran a small brook. He widened and deepened the channel, and drained his flat land into it, so that the flat, which had been boggy and useless land, has become valuable meadow land. In 1871 defendant constructed quits own land a dam on this stream above plaintiff’s land. This dam holds back the water; and in dry seasons the defendant lets the water run through the brook to its canal, using the brook as a feeder. By doing this the defendant throws the water upon the plaintiff’s flat…
1Opinion of the CourtLearned, P. J.
We do not think that the provision in the charter, c. 238, (Laws 1823, § 10,) which gives the right to a summary application fora jury to assess damages, takes away plaintiff’s common-law right of action, or his right to an action in equity. Selden v. Canal Co., 24 Barb. 362; Crittenden v. Wilson, 5 Cow. 165. The important question here is whether defendant is liable for the injury caused, without proof of some negligence on its part. It is not claimed that there was defect in the construction of the dam or in its maintenance; and the defendant only discharges the water at times, and in…
2Cases cited4 opinions
- Losee v. . BuchananNew York Court of Appeals · 1873
- Bellinger v. . the New York Central RailroadNew York Court of Appeals · 1861
- Crittenden v. WilsonNew York Supreme Court · 1825
- Selden v. Delaware & Hudson Canal Co.New York Supreme Court · 1855
3Cited by1 opinion
- Booth v. Rome, Watertown & Ogdensburgh Terminal RailroadNew York Supreme Court · 1892