| OCR Text |
Show NEW YORK 557 improvements shall be made, and that towns and cities shall be built. To adopt the principle that the law of nature must be observed in respect to surface drainage, would, we think, place undue restriction upon industry, and enter- prise, and the control by an owner of his property . . . Which rule will on the whole, best subserve the public interests, and is most reasonable in practice? For the reasons stated, we think the rule of the civil law should not be adopted in this State.199 The court noted that the common law rule which it embraced, and which allowed reasonable development and improvement of land at the expense of alteration of natural drainage flows, was not with- out limitations: The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels, and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law.200 The courts have adhered to the rule in cases subsequently decided, without any major modification of the doctrine. Thus, a municipal corporation is not liable when it erects buildings, grades streets, and otherwise improves property with the resultant effect that the surface water drainage therefrom into a creek is increased, thus increasing the natural streamflow to the complaint of a lower riparian;201 but it is unlawful for a sewer district to install drains which collect enormous amounts of surface waters and then discharge them into a city's drainage conduit, causing overflowing and damage to the city.202 As between adjoining landowners, the court has point- edly noted that neither the upper nor lower owner enjoys any ad- vantage over the other, and that either may improve his property: Under the common law adopted in this State, either proprietor can improve his land according to his own desire in any manner to which the land is suited, without being liable to the abutting owner for change of the flowage of the surface water provided that he does not resort to drains, pipes or ditches.** When an association of landowners removed sand from its property and excavated for a short distance onto plaintiffs' property, causing flooding and damage when a torrential rainstorm occurred, the association was held liable-not because it had improved its own property, but because it had negligently constructed what was, in practical effect, a channel to direct the surface waters onto plaintiffs' lands.204 4. Ground Water New York case law distinguishes between underground streams and percolating water, with the former being governed by the law applicable to surface watercourses and the latter being governed by rather unclear rules. Percolating water was deemed to be part iM Id. at 148. 200 Id. at 147. ™-Foa> v. City of Rochelle, 240 N.Y. 109, 147 N.B. 544 (1925). »>» Buffalo Sewer Authority v. Town of Oheektowaga, 281 N.T.S. 2d 326, 20 N.Y. 2d 47, 228 N.E. 2d 386 (1967). However, the court noted "it is permissible-in the cultivation and improvement of premises-to obstruct and prevent the running off of surface waters even if, in so doing, there is injury to the estate of an upper pro- PT^^osaoff v. Rathgeb-Walah, Inc., 170 N.Y.S. 2d, 3 N.Y. 2d 583, 148 N.B. 2d 132 (1958). **Seifert v. Sound Beaeh Property Owners Ass'n, 60 Misc. 2d 300, 303 N.Y.S. 2d 85 (1969). |
