(dissenting):
The laws of this State permitted the defendant to build and maintain its railroad. ' They did not direct at what particular place or in what particular manner the roadbed should be. constructed ; nor did they require defendant to dam up the canal so that the mountain stream would not have a sufficient outlet, or to take aWay the stone " sustaining'wall of the old-canal.- Any consequential-injury arising to any one from the proper operation of the railroad is- not a subject for, damages'against the company, as it is proceeding under statutory authority.' But' if the defendant, by changing a' waters course or removing the sustaining-wall of the canal, has taken water which otherwise would not come upon the plaintiff’s land, and conducted it thereon to' his injury, it cannot screen itself behind the *803statute which only permitted it. to build and maintain its railroad. “ It is now the settled doctrine in this State that the powers granted to such corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights and under the same responsibility.as though the acts done in execution of such powers were done by an individual. (Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10.)” (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 272; Brown v. Cayuga & Susquehanna R. R. Co., 12 id. 486; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317.)
The BelUnger case cited in the prevailing, opinion does not control . this case, and if standing alone it might seem to announce a new rule, the Booth case above cited seems to weaken its effect.' Bellinger’s injury came, as he alleged,ifrom an embankment and bridge built by defendant across certain low lands which caused an overflow upon his premises.. The defendant attempted, to prove that the embankment and bridge were carefully and skillfully constructed with reference to the creek. The evidence was excluded and the Court of Appeals-reversed the judgment for the plaintiff upon that' ground. That case did not raise a question of pleading; nor did it decide that a company having a right to build a railroad may build it in its own way without regard to consequential injuries to others.
While the defendant owned the bed and towpath of the canal for the purpose of its construction, that right was qualified somewhat by section 4 of chapter 469 of the Laws of 1899 amending the act incorporating the Delaware and Hudson Canal Company,* its predecessor in title. The amendment permitted the company to abandon its canal, but provided,. among other things, that it was the duty of. the company “ to make such provision for the streams now discharging into said canal on that part of it which may be so discontinued as will restore them to their original channels; but where to make sncli restoration has become, or is now, impossible, such provision shall be made for the discharge of the water of such streams from said canal as the existing situation now permits, and as will avoid injury to other property.”
There was some evidence tending to show that the canal had been *804abandoned pursuant to this statute ; that the defendant, as the successor of. the canal company, had dammed up'the canal near the point where a stream flowed into' it, 'and had provided ' no adequate means for its water to' escape from the canal, and thus forced it upon the plaintiff’s premises through a place in the canal bank which it had negligently weakened by the removal of the stone sustaining wa]l. If these. facts were established, it had violated the statutory duty imposed upon it as the successor in title to the canal company, and also the. common-law duty of using due care not to injure the plaintiff by the use which it makes of its property; •
It is unnecessary here to consider whether! or not this statute and . the rule fixing the responsibility of him who changes a natural water-. course applies to this case and requires the defendant to keep this stream within its new channel. In the view most favorable to the defendant it was a question of fact whether it had exercised proper ■ care and precaution to prevent the waters of the mountain stream and the canal from injuring the plaintiff and others. That was the real question litigated upon the trial. Plaintiff alleged a wrongful invasion of his.property fights. If the act of the defendant was the cause of the. overflow, then its only defense, if it had one, was ■ that it was building its track upon its right of way arid property, and that in all its acts it exercised reasonable care for the protection of plaintiff’s property. If it did not allege and prove these things then the plaintiff maintained his claim'that defendant wrongfully caused his loss. .It is not necessary for the defendant to bring liis action' for negligence, but he may allege the waters as wrongfully thrown -upon him-by the defendant, and leave it to justify by showing the "necessity and the propriety of its actions.
... • But there, is no question of pleadings in this .casé.. The facts'were proved without objection as to the form of the complaint. One of -the grounds for. the motion for nonsuit is that “there is rió evidence of'-any negligence on the part of defendant' in such' construction,’’-and “ the case is destitute of any evidence of negligence for •which defendant can be made more responsible.” " So that if the facts are found with the plaintiff he may recover either upon the. ground • of- negligence or trespass. In Sullivan v. Dunham (161 N. Y. 290), by negligently blasting upon his own lands, -the defendant caused a piece of wood to fly into the highway and hit the plaintiff, lawfully *805thereon, and the plaintiff recovered. It was conceded that the defendant was lawfully blasting without negligence or want of skill, but the court held plaintiff was entitled'to recover for the trespass, although the complaint was for negligence, and that any objection to the pleadings in' that respect was waived. Here it is evident the complaint was dismissed, not upon the pleadings, but upon the'ground that there was no evidence tending to show any liability. It is now too late to urge objections to the complaint. They were waived by the manner in which the case was tried. If the complaint had been criticised upon the trial, there was ample power for an amendment. ■
Upon all the evidence it was a question of fact for the jury whether the water which entered upon the plaintiff’s land and injured it came from the canal, and, if so, whether the acts of thé defendant in removing the retaining wall and in' obstructing the canal caused the water to flow from the canal upon the plaintiffs’ premises. If the injury was so caused, the defendant is liable in an • action for trespass. (Wickham v. Lehigh Valley R. R. Co., 85 App. Div. 182, and cases cited ; Sullivan v. Dunham, supra, and cases cited; Wheeler v. Norton, 92 App. Div. 368.) In Wickham v. Lehigh Valley R. R. Co. (supra) the defendant was held liable under circumstances quite similar to the facts here.
In Mairs v. Manhattan Real Estate Assn. (89 N. Y. 498) the defendant, by permission of the municipal authorities, made an excavation upon its own premises. During a severe rainstorm water found its way from this excavation into the plaintiffs’ céllar, and the defendant was held liable for trespass, irrespective of the question of negligence “ upon the principle of Hay v. Cohoes Co., 2 N. Y. 159 ; St. Peter v. Denison, 58 id. 416; 17 Am. Rep. 258; Jutte v. Hughes, 67 N. Y. 267, in which it is held that where one is making improvements on his own premises, or without lawful right, trespasses upon or injures his neighbor’s property by casting material thereon, he is liable absolutely for the damage, irrespective of any question of care or negligence. A license from ■ the municipal authorities cannot affect the question of responsibility in such cases'.”
The action was, therefore, properly brought as one for trespass, and counsel properly insisted that trespass was the ground upon *806which he was entitled to recover. If the defendant was light •tlu."'proving due care proved a defense, it did not change the action into one for negligence; it simply was an attempt by it to excuse act which was proved against it as a trespass. It is unnecessary here to say whether proof of due care was or was not a defense.' Suffice it to say that upon the facts shown, the. plaintiff was entitled to. have his casé considered by the. jury.
Judgment affirmed, with costs.
See Laws of 1823, chap. 238; Laws of 1867, chap. 841, § 4, added by Laws Of 1899, chap. 469.— [Rep.