[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 604 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 607 It was within the power of the defendants to construct the bridge and bulk-heads with gates at the place where the work was located and performed. The trustees of the village of Canandaigua were commissioners of highways in and for the village, having the powers of such commissioners (L. 1854, ch. 352, § 1), and in the construction of the bridge they were proceeding pursuant to authority, and in the performance of their duty. The coffer-dam placed in the channel was necessary to the construction of the bridge. It had the effect to stop the flow of water from the lake through the channel known as the feeder, and the only outlet for it during the time the dam remained there was through the DuBois channel. There was evidence tending to prove that from the time of the removal or opening in February, 1888, of the Chapinville dam (located about four miles from the lake) the DuBois outlet had the capacity to take from the lake, and did carry off as much water or more than previously flowed through both channels. This fact was controverted, and the conclusion was warranted that the coffer-dam had the effect to obstruct the discharge to some extent of the quantity of water, when high in the lake, which the two channels had been accustomed to carry off before the removal of the dam, and that the continuance of water on the plaintiff's land longer than it otherwise would have remained there was attributable to the coffer-dam. While the water was no higher and covered *Page 608 no more of this land that spring than it had years before, and was not so high as in the spring of 1887, it remained on the plaintiff's pasture field longer, and it was the continuance of it there which impaired the usefulness of the land and substantially deprived him of the beneficial use of it that season. The question, therefore, is whether or not the alleged justification is a defense against liability of the defendants for injury suffered by the plaintiff. The Hydraulic Company took, by statute (L. 1885, ch. 234), the right to maintain bulk-head and gates in the channel subject to "liability for all damages occasioned thereby actually sustained by any person whatsoever." The mere acquirement of the rights of that company afforded no means of protection of the defendants against liability for injury occasioned by the use of the privileges to which they succeeded. Nor can they be relieved unless their rights were superior to those of persons engaged in work private in character. The doctrine, however, is well established in this state, that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized by law, are not liable for consequential damages occasioned by it to others unless caused by misconduct, negligence or unskillfulness. (Radcliff's Executors v. Mayor, etc., 4 N.Y. 195; Bellinger v. N.Y.C.R.R. Co., 23 id. 42; Moyer v. N.Y.C. H.R.R.R. Co., 88 id. 351; Uline v. N.Y.C. H.R.R.R. Co., 101 id. 98.) And such is the weight of authority elsewhere. (Transportation Co. v. Chicago,99 U.S. 635, 641.)
By virtue of these lawful powers the trustees, as commissioners of highways, were authorized to construct the bridge, and the power was conferred upon them by statute to erect bulk-heads and gates to regulate the flow of water in the channel, which the municipal corporation had appropriated for the purposes of sewerage and drainage. (Laws 1886, ch. 658.) And they had the lawful authority to do whatever was essential to the proper performance of the work of making the improvement. It was for that purpose only that the coffer-dam was erected. The necessity for it made it lawful, and its *Page 609 usefulness was dependent upon the obstruction by it of the flow of water in the channel at the place where the improvement was made. The necessary consequence was to hold back the water which would otherwise have gone through this one in excess of that which passed down the other channel during the time the coffer-dam was there.
It is urged on the part of the plaintiff that the damages were incurred by the direct and physical invasion of his land by the defendants in the construction of the dam, and that it constituted a taking of his property within the meaning of the provision of the Constitution, that private property shall not be taken for public use without compensation. This subject has had much discussion and judicial consideration, and that consequential damages to property of others occasioned by the performance of public work are not treated as the taking of it within the meaning of the Constitution, is not an open question in this state, as will appear by reference to the cases before cited. The dam did not, nor did any of the work, encroach upon the plaintiff's premises. The right to construct this dam and thus obstruct the flow of water in that channel to the prejudice of owners of property affected by it, depended upon its necessity for the purpose of the work of the public improvement according to the plan devised for the structures to be erected. And, assuming as we do, for the purpose of the question now under consideration, that it was such, and that they properly and expeditiously performed the work, it is not seen within the doctrine before stated how the defendants can be held liable for the consequences resulting from it to others. Within this rule serious injury to property may be occasioned by the lawful exercise of powers of public character pursuant to law, and if the work is carefully and skillfully performed, the consequences may be damnum absque injuria when the legislature has provided for no compensation. In such case the protection of the owner of property not taken or appropriated, which may be subjected to hazard of injury, is in the care and skill to be observed by those engaged in the execution of the work. If they fail to do that, they are liable for the consequences of such failure. *Page 610 In the present case the action of the defendants in the performance of the work was confined within the limits where they had the right to execute it, and the effect upon property beyond those bounds resulting in damages was the consequence of such performance of the work, and not the direct act of its execution by them. In that respect this case is distinguishable from that of St. Peter v. Denison (58 N.Y. 416). There the defendant was held liable because, by casting stone upon the premises, he committed a trespass; and the fact that he was engaged in the performance of a public work and the fragment of rock was in the process of blasting thrown upon the land of another, was no justification. Here the injury to the plaintiff's premises was not done directly by any act of the defendants, but it was the consequence following and tracable to the work as the cause. In the one case the act of the party was, and in the other not, a direct invasion of the premises of the plaintiff. The distinction between the principle of the Radcliff and Bellinger cases and the St. Peter case is recognized by Judge FOLGER in the latter. The dam was but a temporary structure, essential to make the public improvement, and was removed when that was accomplished. The damages so resulting from such cause have quite uniformly been treated as furnishing no common-law remedy. (Plant v.L.I.R.R. Co., 10 Barb. 26; Matter of Squire, 34 N.Y. St. R. 722.)
In Pumpelly v. Green Bay Co. (13 Wall. 166), the defendant not only by its dam raised the water in Fox river above the height authorized by the statute, but the dam and its consequences of flooding the plaintiff's land was permanent. And in Transportation Co. v. Chicago, the Pumpelly case and another are mentioned as those in which the extremest qualification of the doctrine is to be found in support of an action for damages sustained in consequence of the performance of a public work. But added that "in those cases it was held that apermanent flooding of private property may be regarded as a taking." And in that case the court held that "acts done in the proper exercise of governmental powers and *Page 611 not directly encroaching upon private property, though their consequences may impair its use are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority." In order to have protection against liability, the work must not only be done for the purposes of the public and by authority of law, but it must be done in manner and method reasonable with a view to as little injury to others as practicable, and with reasonable care, skill and dispatch.
It may be observed that the plaintiff does not allege delay on the part of the defendants in the commencement or prosecution of the work of construction of the bridge. The further question is whether the inference from the evidence was fairly permitted that the defendants were chargeable with any want of care which caused the injurious consequences suffered by the plaintiff. The propositions which the court was specifically requested to submit to the jury in that respect were whether the defendants constructed the dam at an unreasonable time, being shortly before the spring floods; also whether they should not have taken the water around the place of the work rather than hold it back from the channel by the dam. The time and the necessity for the construction of it were matters to be determined by the trustees, upon whom was imposed the duty in that respect. And assuming, as we must upon the evidence, that they acted in good faith, their exercise of discretion in those respects is not the subject of review. (Talcott v. City of Buffalo, 125 N.Y. 280.)
It appears that it was necessary to put in the dam when the water in the channel was low, and that it could not be properly done in the spring during high water which usually came in April and May, and sometimes later. While it may be that they could with propriety have, without serious prejudice to the use of the highway by the public, have delayed the work until low water in the summer, there is no support for the imputation of bad faith on the part of the defendants in erecting *Page 612 the dam at the time they did. If the municipal corporation had owned the adjacent land it may at the requisite expense, which it seems would have been large, have dug a channel of sufficient width and depth around the place where the work was done; but it does not appear that this could have been accomplished by any reasonable means. The circumstances of this case are not such that the omission of the defendants to resort to all possible means to overcome the obstruction by the dam to the flow of water into and through this channel during the time reasonably necessary for the work, rendered them chargeable with negligence in the performance of their duty, although the consequence was that water remained on the plaintiff's premises longer that season than usual.
These views lead to the conclusion that the evidence was not such as to support a verdict for the plaintiff.
The judgment should be affirmed.
All concur.
Judgment affirmed.