Bellinger v. The New York Central Railroad. ever might have been our conclusions as an original question, I do not now think we should depart from the course of decision referred to. Therefore, without discussing the question, as an original one, upon its merits, I think we should regard it as settled in this State that such a note, under the circumstances disclosed in this case, should be deemed dishonored long before the time it was protested, and the indorser discharged. The judgment should be affirmed. BELLINGER V. THE NEW YORK CENTRAL RAILROAD. One who, without legislative authority, interferes with the current of a The APPEAL from a judgment of the Supreme Court. action was commenced in May, 1855, to recover damages against the defendant for "negligently, wrongfully and improperly" constructing its road across the West Canada creek, and across the lowlands forming the valley of said creek, in the town of Herkimer, by means of which the plaintiff's lands in the valley on the east side of the creek were repeatedly overflowed, the soil, fences and manure washed away, and large quantities of rubbish left upon the ground, &c. The defendant's corporation was created in 1853, pursuant to an act of the Bellinger v. The New York Central Railroad. legislature consolidating certain railroad companies into one company, and subjecting it to all the liabilities attaching to the companies embraced in the consolidation. Among these companies was the Utica and Schenectady Railroad Company, a corporation created by act of the legislature, whose road, as it was alleged, caused the injury, prior to the consolidation. The West Canada creek runs in a southerly direction, discharging its waters into the Mohawk river in the town of Herkimer. The Utica and Schenectady railroad was constructed in 1835. Its general direction is east and west, and it crosses the creek in that town at a place easterly of the village of Herkimer, and runs on an embankment over the low land between the creek and the village, about one hundred and fifty rods. The bridge on which the track runs over the creek is nearly five hundred feet long. It replaces a former bridge of the company, which was carried off in 1851. There is a space of eighty-two feet wide in the embankment, for water to pass in the time of flood, over which space the track passes on what is called a flood bridge. In other parts the embankment is from four to twelve feet high, and there is a culvert four or five feet high near the west end of the embankment. The plaintiff's land, which was alleged to have been injured, is on the east side of the creek, below the railroad track, and between it and the Mohawk river. It was shown that the railroad company had acquired title to the land occupied by the track of its road, and that the plaintiff had received payment for the value of his portion of that land, and for his damages in consequence of the road having been laid out through it. The plaintiff's land was not overflowed periodically, but only in times of unusual freshets, occurring in the winter and spring, when the flow of water is obstructed by the ice which has broken up and lodged in the channel and openings. Such a freshet occurred in the winter of 1842-3, carrying off the flood bridge, and in 1851 when the turnpike and railroad bridges, spanning the creek, were carried off, and again in 1853. On each of these occasions the plaintiff's land was covered with ice and strewed with flood wood and rubbish; the soil was Bellinger v. The New York Central Railroad. washed off in places, and the fences carried away. Several of the plaintiff's witnesses attributed this effect to the railroad embankment, west of the creek. They testified (in effect) that if such an obstruction had not existed, the water which came out of the channel on the west side of the creek, above the railroad, would have spread out and passed off on the low lands on that side; but that, owing to the embankment, and to the ice filling up and obstructing the space at the flood bridge, the water turned and ran east into the channel, broke up the ice in it, which was again obstructed by the fixed ice in the channel below the railroad bridge, and the whole was thrown upon the plaintiff's land east of the creek. On the other hand, the defendant's engineer, in charge of that part of the road, testified that upon these occasions the space at the flood bridge was not clogged by the ice, but passed off the water freely. It was shown by an aged witness that he had seen the ice and water overflow and run upon the plaintiff's land on the occasion of the breaking-up of the spring of 1799, and another witness saw the water on his land in 1813 or 1814. It appeared that, in both the freshets of 1842 and 1851, the ice in the creek was raised and thrown upon the banks a considerable distance above the place in question, and that several bridges and dams situated on the creek, above and not within the influence of the railroad embankment, were carried off. These were sudden and violent floods occurring after a rain, while the earth was frozen and covered with snow and the stream was frozen over. The West Canada creek was shown to be a violent stream, especially when breaking up in the spring. The defendant's counsel moved for a nonsuit, on the ground that it had not been shown that there was any want of care of skill in the construction of the railroad or bridges, or that the injury to the plaintiff's land was owing to any such want of care or skill on the part of the railroad company. The motion was denied, and the defendant's counsel excepted. The defendant's counsel called as a witness one Gilbert, who testified that he was an engineer, and had been engaged in that Belling er v. The New York Central Railroad. pursuit for twenty-five years, and had been in the employment of the Utica and Schenectady Railroad Company for a time in 1847 and 1848, and in charge of the portion of their road embracing the place in question, and was familiarly acquainted with the embankment across the valley of the creek, of which and of the bridges he exhibited a map, which he swore was accurately drawn. The defendant's counsel, among other questions, asked him the following: "Were the embankment and the bridges carefully and skillfully constructed, with reference to this creek?" The plaintiff's counsel objected to the question as incompetent, and it was excluded by the judge, and the defendant's counsel excepted. The judge charged, among other things, "that the railroad company had a legal right to build its road in its present location, but, in building it, was bound to exercise due care. If it became necessary to pass over streams, sufficient openings should be left for the water to pass through in high as well as low water. The company is not bound (he said) to insure against any possible contin gency, but it is bound to see that the openings are sufficient for any freshet which might reasonably be expected to occur in the stream for which it was made." The defendant's counsel excepted to this part of the charge. Verdict for the plaintiff, $525.75, for which judgment was entered, which was affirmed at a general term. The defendant appealed. Sidney T. Fairchild, for the appellant. Robert Earl, for the respondent. DENIO, J. The defendants had a right to construct their railroad across the creek and the low lands on each side of its channel, at the place where it was built; but they were bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable. This was the substance of the charge of the judge. Bellinger v. The New York Central Railroad. He told the jury that the company was not bound to guard against every possible contingency, but that they were bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur in the stream. In this, I think, he stated the rule with substantial accuracy; though I am of opinion that the principles of the action were not as fully explained as was desirable. But no request to supply the deficiency was made by the defendant's counsel. The exceptions to the charge cannot be sustained. I am of opinion, though not without some hesitation, that there was evidence enough to submit the case to the jury upon the question whether the road and its embankments and bridges were constructed with suitable care and skill. There was no evidence directly bearing upon the point, by any witnesses of competent knowledge and experience. But the fact that, on three several occasions between the time of the construction of the road, in 1835, to the trial, in 1856, the water and ice had been forced out of the stream upon the plaintiff's land; and that, in the judgment of witnesses who had seen the breaking up of the ice, the diversion of the flood from its natural course on the west side, where it would have been harmless, to the creek and on to the land on the other side, was caused by the embankment, and the want of sufficient apertures for the passage of the water, afforded some evidence that the structures referred to were faulty. When the character of the stream, the peculiar suddenness and violence of the freshets which caused the injury, and their infrequency, are taken into consideration, it is evident that the plaintiff's case was not a strong one; but I think it was one to be determined by the jury. I am, therefore, in favor of sustaining the ruling of the court, in denying the motion for a nonsuit. But the judge refused to allow the inquiry to be made of a witness, who was an engineer by profession, and who was familiar with the locality and with the defendant's structures, whether the embankment and the bridges were carefully and skillfully constructed with reference to the creek. It does not appear upon what ground the question was rejected by the |