George E. Corwin, Respondent, v. Erie Railroad Company, Appellant

George E. Corwin, Respondent, v. Erie Railroad Company, Appellant. Negligence — duty of a railroad company to prevent a culvert from sinking and causing the water to flow on the land of an adjacent owner— damages and injunction granted. A prescriptive right acquired by a railroad company to maintain an embankment and culvert on its right of way is not a defense to an action brought by an owner of land adjacent to the embankment and culvert to recover damages resulting from the negligence of the railroad company in allowing the culvert to sink, thus obstructing the natural flow of water through it, and causing such water to overflow the adjacent owner’s property and destroy his crops; in such a case the railroad company may, in addition to being required to pay for the crops destroyed, be enjoined “from causing or negligently permitting” the culvert to be obstructed. Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of March, 1902, upon the decision of the court, rendered after a trial at the Orange Special Term, enjoining the defendant from the maintenance of a culvert, except upon certain conditions. ' Henry Bacon [ John J. Beattie and Joseph Merritt with him on the brief], for the appellant. John G. It. Taylor, for the respondent. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: In 1844 the railroad corporation which was the defendant’s predecessor in title built an embankment and culvert on its-right of way in the neighborhood of land now owned by the plaintiff. The culvert was constructed over a watercourse, and the gist of- the plaintiff’s cause of action in the present suit is the negligence of the defendant in allowing the culvert to sink and thus obstruct the natural flow of the stream so that it flooded the plaintiff’s property and destroyed his crops. The judgment forbids the further maintenance of the embankment and culvert except upon condition that they be altered so as to permit the free passage of the water, .and also awards the ■ plaintiff $400 damages for the destruction of his crops. The appellant asserts a prescriptive right to maintain the culvert in its location and dimensions as existing at the time when the action was brought. Certainly, there would be much force in this position if the culvert had remained unchanged since 1844. The proof is ampié, however, to show that if has sunk from time to time since then, so as to impede the flow of water. The right to maintain the culvert as originally constructed did not include the right to maintain it as it was after the subsidence' occurred. The prescriptive right set up here by the appellant is a right to do less than that of which the respondent complains, and it is, therefore^ of no ayail. (American Bank Note Co. v. N. Y. Elevated R. R. Co., 129 N. Y. 252.) The injunction granted by the judgment forbids the defendant “from causing or negligently permitting” the' culvert td be obstructed. The appellant objects to this clause as imposing upon the Erie Railroad Company a liability for the acts of others as well as for its. own acts; but we agree with the learned counsel for the respondent that this portion of the decree has no application to the conduct of any other party. The evidence sufficed to warrant the learned trial judge in finding that the plaintiffs crops were injured in consequence of the sunken condition of the culvert to the extent of the amount awarded-as damages; the result reached on each branch of the case appears to be correct, and the judgment should, therefore, be affirmed. Goodrich, P. J., Jerks and Hooker, JJ., concurred. Judgment affirmed, with costs.