[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 486 This action was brought to recover the expenses incurred by the plaintiff in removing certain alleged obstructions and deposits from Mill creek where it runs through the lands of the defendants' testator. Mill creek is a non-navigable, natural watercourse, not a public highway, running through the plaintiff's boundaries. On the 16th day of April, 1889, the plaintiff's common council adopted a series of resolutions in and by which they declared that obstructions and deposits existed in Mill creek running through the defendants' testator's lands and that such obstructions and deposits caused large bodies of stagnant water to accumulate detrimental to health, the removal of which was proper and necessary and that such removals should be made at the expense of the owners or occupants of the lots adjoining that portion of the creek. The resolution then proceeded to describe the width and depth of the creek and concluded by adjudging the description so given to constitute the natural and normal channel and grade of the creek, and that all earth and other matter lying in and above such grade and channel, as described, to be obstructions and deposits in the stream. The description, however, does not locate the center line of the stream or the banks thereof farther than to specify the width of the channel. The five days' notice required by the charter of the final adoption of these resolutions was then given and on the 23rd day of April they were ratified and confirmed. Subsequently, and on the 7th day of May, 1889, the common council adopted another resolution amending that adopted on the 16th and confirmed on the 23d, by *Page 487 reducing the width of the stream and changing the slopes of the banks. Thereafter and in August, 1889, the plaintiff's superintendent of streets entered Mill creek where it flows through defendants' premises, cut down banks and widened the natural channel of the stream, excavating the earth therefrom, and in so doing cut several trees growing on the banks thereof and dug out the stumps, making a new channel for the creek. Can the plaintiff recover for the expenses incurred in doing this work?
The trial court has found as a fact that after the adoption of the resolutions alluded to and during the month of July, 1889, and before the plaintiff's superintendent entered upon the excavation of the creek, the defendants' testator cleaned out the creek where it flowed through his lands from bank to bank to the hard pan thereof, and to the natural and normal bed and banks of the stream. These findings are based upon the testimony of the witness McGowan whose statement we do not understand to be controverted. To our minds these findings dispose of the plaintiff's case, for, assuming the resolutions of the plaintiff's common council to be regular, these findings show a compliance therewith on the part of the defendants' testator. He caused the channel of the creek to be cleaned to the natural and normal banks and bed thereof. This is all that the common council had the power to require. If by its resolutions it required more they were unauthorized and void, for the city had no right or power to take and appropriate his lands along the natural and permanent banks of the stream without rendering him compensation therefor either under the Constitution or the statutes. This question was fully discussed by LEARNED, P.J., when this case was first considered in the General Term. (61 Hun, 171.) We fully approve of the views then expressed with reference to this branch of the case.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 488