Penfield v. New York & Mt. Vernon Water Co. , 2 Silv. Sup. 495 ( 1889 )

Barnard, P. J.

The defendant had a pond of water, with a dam of about six feet high. The stream which filled the pond was along the plaintiff’s land, and the old dam backed the water up to the plaintiff’s land to a very small extent. The defendant raised this dam three feet, and, of course, flooded the plaintiff’s land to an extent of three feet perpendicular rise beyond the old overflow. Before doing this the parties entered into an agreement that the defendant should have the right to enter upon the plaintiff’s land, and to fill in- and grade the same, so as to prevent the water from overflowing the same, and for that purpose the defendant was permitted to use the old retaining wall of plaintiff’s along the creek. The rise in the dam injured the plaintiff by casting water on her lot, and she sued to recover her damages. The jury has found a quite severe injury. The complaint is formed as for a negligent construction of the dam. The answer is a general denial in this respect. The defendant offered the agreement in evidence, and it was rejected under the pleadings, so that the case was tried as an unpermitted construction of a dam beyond its proper height. The paper, if admitted, did not change the relation of the parties. Assuming that the paper is a license, the defendant was to make an embankment so as to confine the pond to its old position as respects the plaintiff, except that her bank was to be raised, and the water was to rise perpendicularly. The defendant failed to do this, and the agreement would be no excuse for the omission. A charge for negligently building the dam would be supported, even if the dam proper was well constructed. The defendant agreed to make a good dam along plaintiff’s land. The evidence on the fact of this injury was conflicting, and the jury have found upon the issue. The plaintiff was not, as written of her, guilty of contributory negligence. She only objected to destroying her retaining wall. The difficulty was from the lack of filling behind it. The judgment should be affirmed, with costs.