dissents upon the ground that the uncontradicted evidence establishes that the damages sustained by the plaintiff resulted from the negligence of the defendant’s highway commissioner, for which it was responsible under the provisions of section 16 of the Highway Law (Laws of 1890, chap. 568). Concededly, the commissioner of the defendant constructed a sluiceway or culvert across and under the highway at the point in question, for the purpose of taking care of the water which *346might accumulate at that point and caiise injury to the highway in that locality. It must be conclusively presumed that such culvert or sluiceway was madeand constructed because the exigencies of the traveling public upon the highway required' its construction. It seems to me. wholly illogical to say that a town is liable for the negligence of its commissioner of highways because of his neglect, for injury resulting from his failure to provide a reasonably safe roadbed-,, arid that it is not liable for the acts of such commissioner in providing such safe roadbed, and we think no authority can be found which supports such contention. To illustrate, a commissioner may conclude.that to raise an established highway ten feet will increase its safety so far as the traveling public is concerned, If the grade.at a particular point is thus raised negligently, and as a rqsult the property of an abutting owner is injured because of water, the flow of which might have been cared for in the' exercise of ordinary care and prudence, we think the commissioner, prior to the former statute of 1881 (Chap. 700), and the town, under that act and the present statute would be liable. Any construction of the statute is altogether too restricted which confines the liability of a town to the negligence of its commissioner in failing to provide a safe roadbed or highway for the public to travel upon, and which would relieve the- town from liability for damages sustained by an. abutting property owner occasioned by the acts' of -the- highway commissioner in making, such “ safe roadbed or highway.” Concededly in the case,.' at bar the commissioner of the defendant constructed, and for years maintained, the sluiceway or culvert in question for the .purpose of preventing the accumulation of. water upon or against the-highway,-constructed and ihaintained it for the purpose of making the highway suitable, or at least more suitable, for public travel Because of the highway commissioner’s neglect in maintaining a structure which had been erected and was necessary for the proper preservation of the highway the damages complained of resulted. The sole answer to plaintiff’s claim made in that regard is' that the defendant is not liable because the damages did not result to a traveler upon the highway, for which only it is urged the defendant is liable. We think such is not the proper interpretation of the statute imposing 'liability Upon .towns for the -negligence of their highway commisr siorier. resulting in injury. We may assume .that if the town Or *347its highway commissioner in the construction of a highway did not make provision for carrying off water of an abutting owner, that it would not be liable under the provisions of the statute, but we think it' clear that where the highway commissioner undertakes to make such provision, upon and under which all parties-have acted, he may not. arbitrarily discontinue the provision thus made and thereby cause injury to an abutting owner. I can hardly conceive it possible that under the acts referred to the Legislature intended to provide that a town should be liable to a person traveling upon its highway for the negligence of its highway commissioner in permitting such highway to become defective and out of repair, and.that such town would not be liable for the negligence of such commissioner done to keep such highway in repair, and which resulted in inj nry to an abutting owner. As we have seen, in the case at bar the defendant’s highway commissioner constructed the sluice-way or culvert in question for the purposes and convenience of the traveling public upon the highway, of which concededly he had charge. He negligently, as the evidence shows and as is practically conceded, permitted such sluiceway or culvert to become .obstructed and remain so after notice given" to him, with the result that the plaintiff sustained the damages complained for.
We may assume the correctness of the decisions cited in the' prevailing opinion, to the effect that a highway commissioner is not: required by law to provide for taking care of the water coming from premises adjacent to such highway, but we think no case can be found which holds that where such commissioner has made provision he can at will discontinue it and thus cause damage without incurring liability. In the case of Ashberry v. Town of West Seneca (33 N. Y. St. Hepr. 431), a case decided in the General Term, fifth department, it was hdld that the highway commissioner (of a town) had no right to put an obstruction in the ditch, the immediate effect of which would be to precipitate the waters of the creek in times.of freshet on plaintiff’s land,.and that it (the town) was liable therefbr.
It seems to me hardly useful to cite or to seek authority in support of the judgment in this case. The defendant’s highway commissioner, for the sole purpose of ' making a suitable highway, constructed a culvert under it to take the water flowing from the *348adjacent, premises* Such commissioner negligently permitted sticli culvert under the highway, of which. he had exclusive control, to become so filled up and obstructed that the waters, which except for such obstruction would have passed through it, set back Upon the premises of the -plaintiff and caused the damages for which he - complains. Tt seems tó me clear that' for such damages resulting through the negligence of the commissioner of highways, the defendant is liable precisely as if an injury Bad.resulted to a traveler because of his failure to construct such sluiceway or culvert.
I think it is -Of no importance in this case that the learned county judge and the. respective counsel, during'the course of the trial, spoke of. the negligence, of the defendant" town rather than the negligence of the highway commissioner, as strictly should have been ; done. The statute. imposing liability upon the town for the negligence of the commissioner was read to the- , jury and no exception was taken by either party to- tlie, circumstance that- -the-learned . county judge spoke of the negligence- of the town when strictly he should have denominated, the acts complained of as" the negligence . of the highway commissioner.
We conclude that upon the conceded facts established by the evidence in this case the highway commissioner of" the defendant -was guilty-of negligence which resulted .in injury to the plaintiff, and that it, the.defendanff was liable for such -negligence;"that iio" error was committed by the county judge, or at least such as should be regarded as sufficient to call for a reversal' of the judgment. Our conclusion is. that the judgment is right.; that no error affecting the merits, was committed in the- course of. the trial, and -that it should be'affirmed, with, costs. • 1
Swung, J., concurred.
Judgment and order reversed and new trial ordered, with costs to tho appellant to abide'event, upon questions Of law only, the facts having been examined and ño error found therein.