This action was brought iii Justice’s Court to recover damages for an alleged trespass. It was alleged in the complaint that the defendant wrongfully and unlawfully diverted and changed the course of a stream of water and turned the same on and over plaintiff’s land to his damage in the sum of $200'. The answer of the defendant put in issue these allegations. The defendant did not defend in Justice’s Court and the plaintiff recovered a judgment. The defendant appealed for a new trial in the County Court where a nonsuit was granted.
*798It appeared by the evidence that,the defendant was constructing ■ a railroad within the limits of a right of way it had purchased through plaintiff’s farm and along or near the Delaware and Hudson canal, which it then owned; that it tore down the towpath for a distance of 100 feet or more and used the material to construct an embankment'for'the railroad ; • that the embankment fille.d up or harrowed the bed' or trunk of the- canal a short distance from where a small mountain stream discharged into it; -that pro vision.for the water of this stream was made by closing the canal east of ft-he point of discharge soas to cause the water to flow westerly along the newly constructed embankment for the road to a culvert through which it flowed into tile Ttondout creek ; that a very heavy ■ rainfall and freshet occurred while the defendant was constructing the embankment; that it gave way and the plaintiff’s lands were ' flooded and damaged.
It appeared that all the.acts of the defendant were confined to its own lands or within the limits where it had the right to work, and that the injury to -the plaintiff’s -premises-was tlie consequence ■ following and traceable to the -unfinished condition of the road embankment or to its recent or defective construction.
It was assumed at the trial that the defendant was authorized to construct the road and that the use of the canal, made by. the defendant, was necessary and proper in the .execution of the work.' -It was not claimed that by such use the defendant had wrongfully diverted or discharged the water of the stream upon the plaintiff’s premises or that any act of the defendant was directly or immediately injurious to it;
This is clearly a case of incidental or consequential injury, which resulted to the plaintiff from the exercise of a legal right on the part of the defendant, as were the cases of Radcliff's Executors v. Mayor, etc,, of Brooklyn (4 N. Y. 195); Uline v. N. Y. C. & H. R. R. R. Co. (101 id. 98); Atwater v. Trustees, etc., (124 id. 602); Booth v. R., W. & O. T. R. R. Co. (140 id. 267), and Holland House Co. v. Baird (169 id. 136).
It is distinguishable from. Hay v. Cohoes Co. (2 N. Y. 159); St. Peter v. Denison (58 id. 416); Noonan v. City of Albany (79 id. 470); Cogswell v. N. Y., N. H. & H. R. R. Co. (103 id. 10); McKee v. D. & H. C. Co. (125 id. 353); Sullivan v. Dunham, (161 *799id. 290), where there was a physical invasion of the plaintiff’s land, or the injury was done directly by the acts of the defendant. The distinction between direct and consequential injury to private lands, in the prosecution of public work performed under legislati ve authority, was fully considered and pointed out by Judge Werner in Huffmire v. City of Brooklyn (162 N. Y. 584).
There are many decisions in this State to the effect that where a railroad' company is constructing its road under authority of law, it is not liable for mere consequential damages, and that the only ground of liability in such a case is either bad faith or want of due care or skill in the execution of the work. ■
In Bellinger v. New York Central Railroad (23 N. Y. 42) it was held that where one interferes with the current of a running stream, in pursuance of legislative authority granted for the purpose of constructing a work of public utility, he is only responsible for such injury as results from the want of proper care and skill.
In Atwater v. Trustees, etc., Judge Bradley said: “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. unskillful-' ness,” and cited Radcliff's Executors v. Mayor, etc., of Brooklyn (4 N. Y. 195); Bellinger v. New York Central Railroad (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).
While there is an abundance of authority for this doctrine, there are decisions in which it is limited to cases where the statutory sanction is express or given by clear and unequivocal implication • from the powers expressly conferred, so that it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Hill v. Mayor, etc., of N. Y, 139 id. 495; Booth v. R., W. & O. T. R. R. Co., 140 id. 272.)
It is unnecessary to consider whether, in doing the acts complained of, the defendant acted in the performance of a public duty or in the exercise of a right or power expressly .conferred, for if we assume that the liability of the defendant' depends upon the same *800rule as would govern an individual, its acts were not a trespass for which the plaintiff has a right of action. The test of the permissible use of one’s own land is not whether the use or the act causes injury to a neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the' owner of property has by virtue of his ownership over the property, having regard to all interests affected. (Tucker v. Mack Paving Co., 61 App. Div. 521.)
In Booth v. R., W. & O. T. R. R. Co. the plaintiff’s house was seriously injured■ by blasting; the foundations were cracked, the beams and joists pulled apart and the plaster loosened. The'court said: “ But. mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant in using explosives violated a duty owing by him to the plaintiff in respect of her property, ¿r failed to exercise due care. Wrong and damage must concur' to create a cause of action.”
This doctrine was also fully sanctioned and applied in Holland House Co. v. Baird (169 N. Y. 136), where the plaintiff’s vault was injured by. a blast while the defendant was engaged in excavating a trench in the street in front of. the plaintiff’s building. Judge Gray in that case said: “ This was not a case of a. technical trespass upon the property of another, where proof of negligence in the defendant is unnecessary (Hay v. Cohoes Co., 2 N. Y. 159 ; St. Peter v. Denison, 58 ib. 416), but one of consequential injury, where proof of negligence in performance is essential to a cause of action for damages,” and cited Benner v. A. D. Co. (134 id. 156); Booth v. R., W. & O. T. R. R. Co. (140 id. 267). In distinguishing that ■case from Sullivan v. Dunham (161 N. Y. 290), where the injury was direct and not consequential, the judge said: “ The rule of law must, therefore, be considered as well settled in this court that negligence is essential to be proved in such a case as this of consequential injury, in order to create any liability in the defendant.”
The defendant here was engaged in a lawful act. It was constructing its road upon its own land' and, for all th^t appears, where public necessity required. It was not an act which was certain to produce injury to the plaintiff, ánd if the work was done with proper care and skill there was no nuisance.
*801Under these circumstances I think it is entirely clear that the plaintiff failed upon the trial to establish by proof the cause of action alleged in the complaint, and that the trial, judge did not err in refusing to submit the question of the defendant’s negligence to the jury.
The complaint is not sufficient in form to'comprehend a charge of negligence. There is no allegation that it was not necessary and proper to build the road when it did or as it did, and there is no allegation that the Work was unskillfully or improperly done. The plaintiff’s -counsel insisted that the cause of action set up in the complaint was for a direct trespass and -the case was tried without regard to any question of .negligence or want of care. The authorities establish a distinction between an action for a Wrong and an'action for negligence. (Dickinson v. Mayor, etc., of N. Y., 92 N. Y. 584.) One cannot declare on a pure trespass and a direct injury from the wrongful act. and recover for negligence. (Fisher v. Rankin, 27 N. Y. St. Repr. 582; Caven v. City of Troy, 15 App. Div. 163; Kipp v. N. Y. C. & H. R. R. R. Co., 89 id. 392; Wittman v. City of New York, 80 id. 585.)
While the Code is liberal in disregarding technical defects and omissions in pleadings, it does not permit a cause of action to be changed because the plaintiff fails to.prove facts necessary to sustain it, or because he has mistaken his remedy and the force and effect of the allegations of his complaint. “ The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundaméntal in the administration of justice.” (Wright v. Delafield, 25 N. Y. 266 ; Southwick v. First Nat. Bank of Memphis, 84 id. 420.) It was said with much force in Brightson v. Claflin Co. (180 N. Y. 81) that pleadings and a distinct issue-are essential in every system of jurisprudence and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.
This is not a case of mere omission, but a case of failure to prove . the cause of action alleged in the complaint, and to permit a recovery would be to allow the plaintiff to allege- one cause of action and *802recover upon another. The effect would be not'only to change the action from one cause to another and different ground of action, but it would' authorize a recovery upon eyidence which disproves the cause of action alleged in the complaint.
Our conclusion, therefore, is that the judgment should be affirmed," with costs. •
Chester and Cochrane, JJ., concurred; Smith, P. J.,concurred in memorandum; Kellogg, J., dissented'in opinion.