(dissenting.) Canandaigua lake is a body of fresh water, about 16 miles long and 1£ miles wide. This action was brought to recover damages for wrongfully and negligently causing the waters of said lake to be set back and kept upon the plaintiff’s farm, which consists of about 78 acres of land, bounded by the lake on the easterly side. The lake, at its foot, had two outlets, one known as the old one, or the feeder, and the other as the Dubois outlet. The waters of the lake had flowed through the old outlet for 80 years. In 1856 it was closed 30 rods from its mouth, and a new channel constructed from that point. Since then the waters of the lake have flowed through the 30 rods of the old channel, and thence through the new. The defendants built a coffer-dam across the old channel in March, 1888. It was six feet high, water-tight, and prevented the water which had accumulated during the floods on the plaintiff’s land from flowing as usual through the channel. The waters, by this dam, were raised five feet. Before its erection there would be floods, especially in the spring, which would cause the waters of the lake to set back and cover portions of plaintiff’s land; but it would remain upon it but a short time, inflicting no special damage. Soon after the erection of the coffer-dam the plaintiff’s pasture land was flooded and kept covered by the waters of the lake, the dam preventing its escape, the effect of which was to destroy the pasturage on a large portion of the plaintiff’s farm in the season of 1888, and inflicting upon the plaintiff much damage, as his evidence tended to show. The lands flooded did not adjoin the outlet, but were one-quarter of a mile away, up the lake shore in an opposite direction from the outlet. The defense was that the legislature authorized the construction of the dam by chapter 658 of the Daws of 1886; also that they had a right to make the dam by virtue of chapter 234 of the Laws of 1855, entitled “An act to incorporate the Ontario Hydraulic Company of the County of Ontario.” The defendants claimed to have succeeded to rights of that company. In the winter of 1888 it became necessary to construct a new bridge over the channel in the lake-shore road, and the coffer-dam was constructed mainly for the purpose of keeping the waters out of the channel, so that the new bridge could be more conveniently constructed. A canal could have been dug, by which the waters which would otherwise flow through the channel would be carried around the bridge and emptied into the feeder below; but it would have involved much expense. The defendants were the highway commissioners of the village of Canandaigua, and in that capacity were making these improvements for the village. The action was tried before a justice and jury in May, 1889. At the close of the evidence defendant’s counsel asked the court to nonsuit the plaintiff. The plaintiff’s counsel asked that the case be submitted to the jury on the evidence generally, and also “that it be submitted to the jury on the subject of negligence of the defendants in building the coffer-dam at the time they did build it, to-wit, at an unseasonable period of the year, before the spring floods, and also upon the evidence as to there being a way whereby the water could have been carried off without being kept back by this dam.” The court directed the jury to find a verdict for the defendants. The plaintiff’s counsel excepted, and the exceptions were ordered to be heard here. The evidence, as a whole, tended to show that the erection of the coffer-dam kept water upon the plaintiff’s farm during the agricultural season of 1888 to such an extent as to destroy *562the value of a large portion of it for pasturage or other purposes. Unless the defendants proved a right to so appropriate the plaintiff’s lands he has an undoubted remedy, and can recover all damages sustained. Brown v. Bowen, 30 N. Y. 537; Radcliff’s Ex’rs v. Mayor, 4 N. Y. 195; Mahon v. Railroad Co., 24 N. Y. 658; Story v. Railroad Co., 90 N. Y. 122; Mahady v. Railroad Co., 91 N. Y. 148; Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. Rep. 537; Scriver v. Smith, 100 N. Y. 471, 3 N. E. Rep. 675,—where the court held that the keeping of water upon land by means of a dam, to the extent it is flooded, amounts to an actual eviction. It cannot be said that this appropriation of the plaintiff’s property was casual and temporary. The value of a large portion of the plaintiff’s farm was destroyed for a whole season.
In Transportation Co. v. City of Chicago, 99 U. S. 636, the defendant had erected a coffer-dam in the Chicago river to enable it to make a tunnel under the river along the line of La Salle street. During the making of the tunnel the plaintiff could not use its property for any beneficial purposes. The court held that the legislature may rightfully authorize the construction of railroad or other works of a public nature, without requiring compensation to be made to persons whose property has not actually been taken or appropriated for the use thereof, but who may nevertheless suffer indirect or consequential damages by the construction of such works. It was held that the action could not be maintained, because there was no physical invasion of the property. The decision comes within the principle that a man may do what he chooses upon his own land in the exercise of legal rights, without being liable to an action by an adjoining owner in the absence of a physical invasion or actual taking. In the case at bar the'plaintiff’s land was actually taken, so that the case above cited has no application. In Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536, upon the authority of which the learned trial justice directed a verdict for the defendants, it was held that the rights of private owners in public highways must be obtained by compensation before a railroad could be constructed, but that when the right was acquired, and it was built with proper care and skill, the owners of the road are not responsible for damage to private property adjacent or near the road, necessarily resulting from its construction or operation. It appeared in that case that the railroad had acquired, by paying compensation, the right to construct its road through the plaintiff’s property in the highway, and that the balance of her land adjoined. The complaint in this case alleged in substance that the defendant entered her property, (meaning what she owned in the street,) and tore up the pavement, raised the street sidewalks and gutters, and so shaped the street and gutters as to pour the water therefrom down over the sidewalk into the basement of her houses, by means of which her premises were made liable to be flooded with water, and had been flooded with water and rendered damp, unhealthy, inconvenient of access, and her property thereby had been injured, and the rental value and value thereof greatly depreciated. The judge, in delivering the opinion, stated in substance that if the plaintiff did not receive compensation for her property the company would be liable. He also stated that the damage sustained by the plaintiff necessarily resulted from the building and operation of the railroad. A large portion of the opinion is devoted to showing that an improper rule of damages has been adopted; but the court nowhere indicates an intention to question the authority of the cases above cited. The decision is based upon the proposition that a person whose land has been taken, if paid for, cannot recover for injuries inflicted upon the balance not taken, if they were the necessary results of the construction and operation of the road. That case has no application to the one at bar. Here the land covered by water was one-fourth of a mile away. Ho compensation had been paid for it; it was not a part of any land taken or proximate to it; nor was it necessary to flood it, as the evidence tends to show. Damnum absque injuria cannot be invoked as a defense here. In Arkell v. Insurance *563Co., 69 N. Y. 191, it was held that 50 feet from a building was not contiguous thereto. The expense would have been increased to avoid the flooding, but no case has been cited showing that an individual or corporation is justified in destroying a stranger’s land for the purpose of reducing expense in the construction of lawful or commendable improvements. The rule adopted by the learned trial justice might destroy the value of private property without compensation. The dam was built before the coming of the spring floods, for the purpose, as the plaintiff claims, of preventing an accumulation of water which would interfere with the construction of the bridge. The effect of such early building was to keep the water upon the plaintiff’s premises, and secure profit to the defendants. The evidence required that the case should have been submitted to the jury. A new trial should be granted, with costs to abide the ■event.