FOURTH DEPARTMENT, JANUARY TERM, 1875. valley of the said creek, by means of which the plaintiff's lands in the valley, on the east side of said creek, were repeatedly overflowed, and the soil, fences and manures washed away," etc. The judge at the trial in that case, had instructed the jury that "the company was not bound to guard against every possible contingency, but they were bound to see that the openings were sufficient for any freshet that might reasonably be expected to occur in the stream." This, Judge DENIO, delivering the opinion of the court, held to be a statement of the rule with substantial accuracy. In that case, as in this, evidence was given, tending to show that the lands in the neighborhood had been at times of freshet overflowed prior to the erection of the structures of the defendant. And the principle laid down in the case, is, that where one has the sanction of the State for what he does, unless he commits a fault in the manner of doing it, he is completely justified. It seems to be well settled that no action will lie against a party for so using or changing the surface of his own land, as to dam up and obstruct the flow of surface water, or water collected by thaws and freshets, and which had formerly been accustomed to flow over the land upon which the structure has been erected. It is only for interfering with and obstructing a defined water-course, whereby injury is occasioned to another, that the defendant can be held liable.* If therefore, the water which did the damage in question, in the years 1864 and 1865, was not caused to be set back by the defendant's interference with Mead creek, but was occasioned by the overflow of that stream from points above the defendant's bridge; or if the defendant's bridge over the stream was built in a careful and skillful manner, with all necessary openings to discharge all the water flowing down the creek, in any freshet which might reasonably be expected, then, according to Bellinger's case, above referred to, the defendant was not liable. The gravamen of the complaint in this case, is, as in the case of Bellinger, the alleged unskillfulness with which the structures of the defendant were constructed. And the complaint seems to be based upon the theory that the defendant is bound, by means of culverts or otherwise, to afford a passage *See Parks v. The City of Newburyport, 10 Gray, 28; Dickinson v. Worcester 7 Allen, 19; Swett v. Cutts, 50 N. H., 439; Goodale v. Tuttle, 29 N. Y., 466; Angell on Water-courses, § 4. FOURTH DEPARTMENT, JANUARY TERM, 1875. across its land for the escape of water which collected on the surface of the adjacent land, and which had been accustomed to flow over the surface of the defendant's land, whether this collection of water was occasioned by any interference on the part of the defendant, with the defined or recognized stream or not. We think this is a mistake, upon the authorities before cited, and that the real issue between the parties, was, whether sufficient openings had been left to discharge all the water which might have been reasonably expected to flow down Mead's creek, during any high water or freshet to which that creek was ordinarily subject. And we are unable to distinguish this case, upon any clear principle, from that of Bellinger's, in which the Court of Appeals ordered a new trial upon the sole ground, that the opinion of an expert, as to the care and skill with which the structures across West Canada creek had been erected, was excluded. Order denying new trial reversed, and new trial ordered, costs to abide the event. Present- MULLIN, P. J., and TALCOTT, J. Ordered accordingly. THE VILLAGE OF FULTON, APPELLANT, v. JEANETTE Sidewalk-duty of adjacent owner as to- liability of to persons injured by failure to keep in repair. When a person is injured, in consequence of a sidewalk being out of repair, no action can be maintained against the owner of the adjacent premises, to recover damages therefor, unless the duty of keeping the sidewalk in repair has been imposed upon such owner by some statute or contract. Sidewalks are a part of the highway, and the owner of the adjoining land has no greater duty in regard to keeping them in repair, than he has in regard to any other part of the highway. APPEAL from a judgment in favor of the defendant, entered upon the report of a referee. 3 529 123a 411 FOURTH DEPARTMENT, JANUARY TERM, 1875. This action was brought to recover the sum of money which the plaintiff had been compelled to pay to one Mary Carr, for injuries received by her, by reason of a defect in the sidewalk in front of the premises owned by the defendant. The plaintiff was incorporated by chapter 176 of the Laws of 1835, as amended by chapter 33 of the Laws of 1862. · The plaintiff and her husband resided in the premises in front of which the accident occurred, which were situated on the west side of Second street, in the said village of Fulton, and in front of which a plank sidewalk had, for many years, been built and maintained by the owners and occupants of the adjoining property, under the direction of the board of trustees of the village. During the year 1870, the sidewalk in front of and adjoining the defendant's premises became out of repair, of which the defendant had knowledge. On the 14th of October, 1870, the board of trustees passed an ordinance of which the following is a copy, and caused a notice of its passage to be left at the residence of the defendant. "Be it ordained, That the sidewalks on both sides of Second street, from Cayuga street to Broadway, be repaired and relaid with sound hemlock plank two inches thick or with pine plank one and one-quarter inches thick, said walk to be six feet in width, the whole to be well graded and completed under the direction of the street commissioner, within ten days from the passage of this ordinance." The defendant did not repair or relay said sidewalk; and, on the 3d day of December, 1870, one Mary Carr, a resident of said village, while passing over the same, without any fault or negligence on her part, but owing entirely to the omission to keep in repair the sidewalk, was thrown down, her wrist was fractured, and she was otherwise greatly injured. Subsequently Mary Carr commenced an action against the plaintiff to recover damages for the injuries sustained by her, and recovered judgment thereon for $313.18 damages and costs, which judgment was subsequently paid by the plaintiff. E. S. Pardee, for the appellant. S. N. Dader, for the respondent. TALCOTT, J.: FOURTH DEPARTMENT, JANUARY TERM, 1875. This action was commenced to charge the defendant with the amount of a recovery which had been had against the plaintiff, in an action against it for negligence, in suffering a sidewalk to be out of repair, by means whereof a party had sustained an injury. The theory of the plaintiff's claim for indemnity, is, that the defendant, as the owner and occupant of the premises adjoining the sidewalk in question, is primarily liable. The referee has dismissed the plaintiff's complaint, upon the ground that the defendant is not liable to indemnify the plaintiff. We think the referee has decided correctly. We know of no principle upon which an action of this character can be maintained, unless the duty of keeping the sidewalk in repair has been imposed upon the adjoining owner by some statute or contract. Certainly no such duty is imposed by the common law. Whether the easement enjoyed by the public has been bestowed by the owner voluntarily, or has been taken from him by proceedings in invitum, the extent of the right which the municipal power acquires, in the absence of express contract or legislation, imposing the duty of keeping a highway in repair, is simply to the enjoyment of the easement. It is true, the authority is usually conferred upon the municipality to assess the expense of the improvement upon adjoining lands. This does not impose the duty of making the repairs and improvements primarily on such owner. On the contrary, the village authorities. in this case are the parties primarily liable to the duty of making the repairs. The provisions of the charter, under which the trustees of the village passed the ordinance to repair the sidewalks on Second street, whereby the owner of the adjoining premises is authorized, within a specified time, to make the repairs at his own expense, simply confer upon such owner the authority, which otherwise, it being a public highway, he would not have, to do the work and thereby save an assessment on his premises. But whether the owner will avail himself of this privilege, is optional with him. It may be conceded that where a party is bound to make certain. repairs by contract, or where he himself has created a nuisance in a public highway, there he is primarily liable. And in case the municipality has been compelled to pay damages in such a case, it FOURTH DEPARTMENT, JANUARY TERM, 1875. would have a remedy over against the party primarily liable. In such case, the party injured has his option to proceed by action against the town or the author of the nuisance.* The cases cited by the plaintiff's counsel may all be referred to the rule, that the party sued as liable to indemnify the municipal corporation, was either bound by contract to do the thing, the omission to do which occasioned the injury, or had himself created the nuisance by which such injury was occasioned. The case of Haskell v. The Village of Penn Yan, † did not involve any such question, and the discussion of it was expressly waived, in that case, as wholly immaterial. Sidewalks are, as has repeatedly been held, a part of the highway. The owner of adjoining territory has no greater duty in regard to keeping sidewalks in repair, than he has in regard to other parts of the highway. The village has a mode pointed out, by which it may be indemnified for the expense of repairs upon its highways; and the method pointed out is to be pursued for that purpose. If it suffers its highways to become out of repair, whereby any person has sustained an injury, for which damages have been recovered against the village, its remedy is upon its contract; or, in case the injury has resulted from any act done by a third party, in the nature of creating a nuisance or obstruction, such party is liable to indemnify the village, upon the principle of the common law. S The judgment must be affirmed upon the opinion of the referee. Present MULLIN, P. J., TALCOTT and SMITH, JJ. Judgment affirmed. * Angell on Highways, SS 298, 300. Wharton on Negligence, § 292. + 5 Lans., 43. § Angell on Highways, § 298. |