The complaint shows that a dry creek, flowing in times of freshet, passed through a culvert under the surface of the highway. The culvert had sufficient capacity to take care of the water and prevent any injury to the plaintiff. We must infer that the watercourse was there before the highway, and it was the duty of the town to carry its highway over the creek in such a way that it would not dam up the creek and cause it to flood the adjoining property owners. It is alleged that the town negligently replaced the wooden culvert with a steel culvert of smaller capacity, improperly constructed, and placed so that it was not capable of discharging the water during a freshet, with the result that the highway dammed up the creek and caused it to overflow the plaintiff's land, to her damage. It also appears that the town, prior to the year 1917, had cleaned out the culvert twice a year, removing the stone, gravel and dirt which accumulated therein, in order to give more space for the water to pass, but that it had neglected to clean the culvert for many months prior to June 6, 1917, the time in question, and permitted an accumu*476lation of stone, gravel and dirt to impede the free passage of the water. In my judgment the complaint alleged a cause of action. (Ashberry v. Town of West Seneca, 33 N. Y. St. Repr. 431; Dye v. Town of Cherry Creek, 87 Misc. Rep. 207.)
Woodward, J., concurred.