(dissenting):
This judgment cannot be affirmed except in disregard, of well-settled principles of elemeptary law. The trial court has found no negligence .on the part of defendant in the building of the dike' qr .otherwise, and yet has charged defendant with consequential damages suffered by plaintiff from the exercise by defendant of the right purchased for a valuable consideration. In Radcliff’s Executors v. Mayor, etc., of Brooklyn (4 N. Y. 200), Bronsoh, Ch. J., in writing for the court, says: “ But a man may do many things under a lawful authority or in his own land which may result in an injury to the property of .others without being answerable for the consequences-. Indeed, an act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow.” In Simpson v. Wabash R. R. Co. (145 Mo. 65) the licensor granted a railroad' an easement to úse certain lots for a pond. In flooding those lots for a pond the water flowed over other lands. In reference thereto the head note, in part, reads: *351“ The fact that in the enjoyment by the licensee of an easement of a pond in a dominant estate, water naturally and necessarily flowed onto and stood upon the servient estate, must be regarded as one of the burdens which the serviént estate had to bear resulting from the enjoyment by the licensee of his easement in the dominant estate, and not that the licensee by the fact that his pond extended over a part of such servient estate acquired an adverse possession and claim thereto.” In Selden v. D. & H. Conal Co. (2.9 N. Y. 634) plaintiff brought an action to recover damages for lands alleged to have been taken by defendants in the enlargement of their canal after the year -1846, and for injuries to other lands .belonging to plaintiff .adjoining those thus taken by the water, which soaked through the banks in consequence of raising the banks and increasing the depth of the water in the canal. The answer alleged a right to enlarge the canal both under a license and under the charter. The trial judge charged that if the canal was enlarged under a license from the plaintiff he could not recover. Judgment at the trial court was for the defendants. Upon appeal by plaintiff,. Judge Selden, in discussing an exception to this part of the charge, says: “ It is insisted, on the part of the plaintiff, that a license to enlarge the canal would not justify raising the level of the water and injuring, the plaintiff’s land by the consequent leakage of water through the banks. A license to enlarge the canal would authorize an increase of the depth of the channel as well as of the width, and such increase of depth might be produced by excavations from the bottom, of by raising the banks, or by both, and the license, so long as it remained in force, would not only relieve the licensee from liability for making the enlargement, hut also from liability for any consequences which might naturally flow from such enlargement. (Stevens v. Stevens, 11 Met. 251; 1 Washb. on Real Prop. 398, § 6.) If the injury to the plaintiff’s, land was owing to any want of skill or care in making the enlargement, and was not the natural result of the work, if carefully done, the license would not constitute a defense. A license^ to do an act cannot be held to screen the licensee from the consequences of carelessness or unskillfulness in the performance of the act. This position, however, is not available to the pMintiff, as the attention of the court was not called to it, and no request was made to have that subject presented to the jury, nor am I aware *352that there was any evidence tending to show either negligence or unskillfulness. The charge of the judge, therefore, so far as it was excepted to, "was correct.” Judge Johnson, also writing ■ in that case, takes the position that without a license there was a charter right to enlarge the canal, and in the exercise of this right defendants were not liable for consequential damages which did not result from their negligence or wrong. This rule he based upon - unquestioned authority, and is approved as late as Fries v. New York & Harlem R. R. Co. (169 N. Y. 283).
, This defendant is a qttasi public corporation. It is so made by the statute, creating it,.and it is expressly given the powers incidental to such a corporation. (Laws of 1898, chap. 234.) It has not merely a license but a contracpright to flood the land described. Within the authorities cited it is not liable for the consequential damages in the absence of a finding of wrongful or negligent construction. If plaintiff has, through a mistake as to'the nature of the soil, made an improvident contract, equity may relieve him upon a return of the consideration paid, but that is not his action. With the consideration in his pocket, which lie does not propose to release, he has procured a judgment for damages for the exercise of the very right, for which that consideration was given.
I vote for a reversal of the judgment'.
Parker, P. J., concurred.
Judgment affirmed, with costs.