Selden v. Delaware & Hudson Canal Co. , 24 Barb. 362 ( 1855 )

By the Court, Harris, J.

I have no doubt of the power of the defendants, under their charter, to construct the enlargement of their canal. My reasons for this opinion I had occasion to state in Bruce v. the same defendants, (19 Barb. 371.) But I think the plaintiff ought not to have been nonsuited. Though the defendants had the right to enlarge their canal, and upon making compensation therefor, to take private property for that purpose, they would still be liable to remunerate the plaintiff in damages for any injury he might sustain as the consequence of their improvement. If, by means of the enlargement—a lawful act in itself—the lands of the plaintiff have been inundated, even though the work may have been performed with all reasonable care and skill, it is a legal injury, for which the plaintiff is entitled to redress. This doctrine, which I regard as elementary in its character, is distinctly and broadly asserted in Hay v. The Cohoes Company, (2 Comst. 159.) In that case the defendants dug a canal upon their own land, as they were expressly authorized to do. They were not chargeable with negligence or want of skill in the manner of executing the work; yet it was held that they were liable for an injury upon adjoining premises. (See also Bradley v. The N. Y. and, New Haven R. R. Co. 21 Conn. Rep. 294.)

But it is said that though the plaintiff may be entitled to compensation for any injury he may have sustained, he is confined to the remedy provided in the 9th section of the defendants’ charter. It is true that the legislature has, in this section, provided a new and summary mode of proceeding, where a person owning land which has been injured by the necessary operations of the defendants is entitled to remuneration in damages. Either party may in such a case institute proceedings for the purpose of having the amount of the damages ascertained. But if the party injured should choose to resort to his common law remedy by action, there is nothing in the act which indicates any intention, on the part of the legislature, to deny him this choice. Had either party proceeded to have the damages ascertained in the manner provided in the charter, such a proceeding would, undoubtedly, have been a bar to this action. But as neither has seen fit to resort to the legislative mode of determining the damages, there is nothing in the terms of the act itself which can be construed to deprive the plaintiff of his remedy by action. (See Crittenden v. Wilson, 5 Cowen, 165.) I am of opinion, therefore, that the nonsuit should be set aside and a new trial awarded.

[Albany General Term, December 3, 1855.

Wright, Harris and Watson, Justices.]