Citation Numbers: 144 Misc. 718
Judges: Foster
Filed Date: 7/15/1932
Status: Precedential
Modified Date: 1/12/2023
The plaintiff seeks to enjoin the defendant from maintaining an alleged nuisance, which it claims the defendant created in connection with the operation of one of its hydroelectric developments situated- on the Mongaup river in Sullivan county, and known as the Swinging Bridge dam and reservoir. It also seeks a money judgment for damages alleged to have been sustained as a result of such nuisance.
The reservoir mentioned extends in a northerly direction from the Swinging Bridge dam to a point near the hamlet of Mongaup Valley, a distance of several miles. Although designed as a combination power and storage reservoir, its primary function is that of storage, and the waters impounded are released, as the occasion requires, to augment the supply contained in reservoirs below.
The plaintiff owns a tract of land, between 3,000 and 4,000 acres
In general the whole territory south of the hamlet of Mongaup Valley for a distance of several miles on both sides of what is now the defendant’s reservoir is sparsely settled. It is a section which has been largely devoted to recreational uses, such as hunting and fishing, and several hunting clubs were formerly located in and about these environs. On the east side of the reservoir the plaintiff’s property may be reached by a public highway which branches off the main highway a short distance east from Mongaup Valley, and runs southerly along the easterly side of the reservoir, at varying distances therefrom, through the property of the plaintiff and ultimately connects with the highway near Port Jervis. The condition of this road beyond the buildings on the plaintiff’s property would not indicate that it was frequently traveled.
The construction of the dam and reservoir was commenced in 1929, and completed in the early part of 1930. The dam was then closed and the waters of the Mongaup river were backed up and impounded over the bed of the reservoir. This flooding continued until July thirtieth of the same year, and thereafter the waters were withdrawn gradually until at about November thirtieth they had been drawn down to the bed of the river. The plaintiff claims that as the waters were withdrawn, and large areas of land previously flooded were uncovered, extremely obnoxious odors emanated from the bed of the reservoir and created a nuisance which materially injured its property. The cause of the odors, according to the plaintiff, was the decomposition of vegetation which had been left on the bed of the reservoir.
On the trial the plaintiff took the position that the defendant’s failure to remove vegetation, such as grass, weeds and small bushes,
The defendant urges first, and without regard to the existence of odors on the theory of either negligence or nuisance, that the plaintiff has released it from any claim for damages arising out of the filling of the reservoir or the withdrawal of waters therefrom. This claim is based upon the language of stipulations contained in written instruments by which the plaintiff conveyed certain lands to the defendant, and in which an easement was reserved to the plaintiff; and also upon stipulations contained in the grant of the easement from the defendant to the plaintiff. By deed dated August 10, 1929, the plaintiff conveyed 180 acres of land to the defendant for the sum of $47,500, and in this deed the plaintiff reserved the privileges of boating, bathing, hunting and fishing, etc., over and upon any waters which might thereafter cover said lands, subject to the rights of the defendant to overflow the same and withdraw the waters at any time, or otherwise use the lands for hydroelectric purposes. The exercise of any of these privileges connected with the easement so reserved to the plaintiff is to be at its sole risk and without any liability on the part of the defendant for any personal injuries, for property damage or otherwise, the plaintiff expressly assuming all such liability. On May 6, 1930, the plaintiff executed to the defendant a general release. On. the same date it also executed to the defendant another deed, by which it quit-claimed, among others, the same lands as were conveyed by the deed of August 10, 1929. No specific mention is made in this deed of any right on the part of the defendant to withdraw waters, although the same easement to the plaintiff is identified by reference to the previous deed. Again on May 6, 1930, the defendant executed to the plaintiff a written instrument which is a grant of an easement, similar to the easement reserved in the previous deeds, over any part of the premises described therein, the flooding of which • was contemplated. This easement was made “ subject, however, to the right of the party of the first part, its successors and /or assigns to at any time or times withdraw any or all of said waters from said lands and/or overflow, submerge, or inundate, cover with water, or keep under water at any time or times any or all of said lands or otherwise use or affect the lands herein described and other lands owned by first party for hydroelectric purposes, and without any liability upon the part of the first party, its successors or assigns for any claims or damages by reason of or
The plaintiff now contends that the release clauses in these instruments operate merely as a limitation of liability for the possible destruction by the withdrawal of waters from the reservoir of the easement reserved to the plaintiff. This construction seems plausible and reasonable as applied to the deed of August 10, 1929. It is not so plausible as applied to the grant of May 6, 1930, a portion of which has been quoted verbatim. However, I take the view that it was not the intention of the parties to include, and that the stipulations releasing the defendant from liability do not cover, either a claim of negligence or nuisance against the defendant in connection with the preparation of the reservoir bed.
There are very definite reasons, however, why the plaintiff’s case must be determined upon the principles of negligence, rather than upon the more simple rules of the law of nuisance. The most impelling reason for this conclusion is the fact that there was and is a privity of estate between the parties. In the absence of such relationship, and assuming the presence of obnoxious odors emanating from defendant’s premises, there would be no reason for inquiry as to the cause. The mere proof of their existence would be sufficient to establish liability, and it would not be a good defense to show that such odors resulted despite the careful operation of a lawful trade or business. (Bohan v. Port Jervis Gas-Light Co., 122 N. Y. 18.) The situation between these parties is entirely different. As already indicated, the plaintiff not only sold to the defendant the lands to be used for reservoir purposes, but actually retained an interest in such property in the form of an easement over the flooded areas. These factors, coupled with the fact that the Legislature, acting through its duly constituted agencies, has authorized the construction and operation of the reservoir, prevent the application of the principles of nuisance as defined in the Bohan case, and it follows that the plaintiff may not justly complain of any consequence resulting from the construction of the reservoir, the flooding thereof, or the withdrawal of waters therefrom, unless negligence is shown. (Bennett v. L. I. R. R. Co., 181 N. Y. 431; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 id. 474.) Since the case is to be considered from this viewpoint, it is unnecessary to discuss the defense of statutory sanction. .
To succeed upon the theory that it has been injured through the defendant’s negligence, the plaintiff had the burden to establish these propositions: First, that odors, offensive to a person of ordinary sensibilities, emanated from the bed of the defendant’s reser
However, as to the elements of negligence I think the plaintiff has failed to sustain the burden of proof. Several experts on both sides testified as to the methods used in the preparation of reservoir beds. They differed somewhat with relation to the removal of vegetation, but their testimony taken as a whole clearly indicates that there is no fixed and invariable standard, and that methods are very largely determined by the circumstances of the particular case. The method actually used in the majority of instances cited was to cut the larger growth of wood, and burn the same in piles. By this method a portion of the grass surrounding each pile would be burned off. The defendant followed substantially this method. The plaintiff’s insistence that all of the grass ought to have been removed, and that every bush ought to have been cut, is without merit. Even if all the grass' had been cut or burned in the fall of 1929, there undoubtedly would have been a new growth over a
It may not be material to discuss the alleged cause of the odors since the charge of negligence has not been sustained, but in view of the fact that the parties have stipulated the testimony in this action to apply to another case, and that such issue is important in both cases, I think it proper to deal briefly with that subject. The plaintiff stood squarely upon the proposition that decomposition of vegetation was the cause of such odors. I do not find that the weight of testimony supports this theory. Only one witness, Dr. Rudolfs, was competent, or had made the necessary investigation, to determine whether decomposition had actually taken place. Other witnesses, although competent to testify as to their observation of reservoir conditions and odors in connection therewith, were not qualified to give testimony of much value as to the cause of odors. Certainly, at least, their testimony cannot be said to establish a preponderance of proof. If decomposition had taken place it is obvious that it would have been general over the area in question and not confined to any one particular place. The witness, Dr. Rudolfs, took several samples in different sections and subjected them to laboratory tests. This, of course, was the only method by which the question of decomposition could be ascertained with any fair degree of certainty. Such tests show that the vegetation had not decayed. This testimony cannot be
For the reasons indicated the complaint will be dismissed. The matter of costs may be taken up on the presentation of findings. Proposed findings may be submitted within twenty days after the receipt of this memorandum.