[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 498 It seems to us that the claim rejected by the Board of Claims is meritorious and has foundation in law. There is no conflict in the evidence, and all the questions that arise thereon are questions of law.
Before 1840 there was a lawful sewer in John street constructed for the benefit of owners of lots upon that street, and probably at their expense. Such owners had the right to drain their lots into that sewer, and were lawfully doing so when the state, in or about 1840, came there and took up that, sewer and substituted its sewer in the place thereof. There was no other sewer in that street but the state sewer, and it was practically impossible to have any other there; and there was no way to drain the lots upon that street, except into that sewer. If it had been necessary for the purposes of the state that it should have the exclusive right of a sewer in that street and its exclusive use, it would have been necessary for the state to condemn, by the exercise of the power of eminent domain, the interests and easements of the property owners in so much of the street as was needed for the sewer. It could not have taken the land and destroyed the right of *Page 501 drainage without making compensation to the abutting owners. There is no claim that the state took any condemnation proceedings, and it is clear that it did not intend to acquire any exclusive use of a sewer in that street. It constructed the sewer not only for its use, but also for the use of the lot owners. The use of the sewer for draining the adjoining lots was perfectly consistent with the purposes of the state, and it is clear that all it intended to do was to substitute its sewer, a larger one, in the place of the city sewer. It cannot be assumed that it intended to do an unnecessary injury to the property owners. So, finding the drains from the adjoining lots into the city sewer, the agents of the state, in constructing the state sewer, left openings therein for such drains, and, probably, for other drains which had not before existed at such places as the property owners pointed out. These openings were left not merely to give a license to the property owners to drain their lots through them into the sewer, but in recognition of an existing right of drainage, and in the discharge of a duty the state owed to the lot owners. No other view is consistent with the facts. Having thus constructed the sewer with these openings, the state was bound to use reasonable care in keeping the sewer in repair and in its management.
From 1840 to 1876, the claimant suffered no damage from the sewer. In the latter year water came from the sewer into the basement of the claimant's store, and the state had notice of it. The water could be set back through the drain only by some obstruction to the flow of the water in the sewer. The state took no action to repair the sewer or to remove the obstruction. In 1877, the water was again set back through the drain and the obstruction was then discovered by the claimant and removed. Thus the state failed in its duty to the claimant. It cannot be said in answer to the claim of the claimant that he would have suffered no damage if his drain had not been thus connected with the sewer, because he had the right, upon the facts as they now appear, to have his drain there, and it was the duty of the state to keep the water which it discharged *Page 502 into the sewer, from being dammed up therein, and forced back into the drain. It owed the same duty which a city owning a sewer, and charged with the duty of keeping it in repair, owes to abutting owners. (Barton v. City of Syracuse, 36 N.Y. 54;Nims v. City of Troy, 59 id. 500.)
Our conclusion, therefore, is that the award of the Board of Claims should be reversed, and a new hearing ordered, costs to abide event.
All concur.
Award reversed.