Lefurgy v. New York & N. R. Co.
(Supreme Cowt, General Term, Second Deportment.
December 13,1888.)
'1. Railroad Companies—Diversion op Water- Course—Liability op Successor.
A railroad company which has succeeded to the rights and property of another company maybe compelled by mandamus to restore to the original channel waters of a stream diverted by that company for purposes of construction.
-2. Same—Limitation op Action.
The action for such diversion is not barred by the lapse of six years, especially where it does not appear that the change in the bed of the stream took place as soon as the new channel was excavated, the old channel having been left to fill up in the course of time.
Appeal from circuit court, Westchester county.
Application by Isaac B. Lefurgy for a mandamus to compel the New York As Northern Railroad Company to restore the waters of the Sawmill river to their ancient channel at, through, and along relator’s farm in the town of Greepburgh. An alternative writ was issued January 25, 1888, to which defendant made return setting up the general issue, and alleging, among other things,' that the acts complained of were not done by defendant, but by another corporation, and that the cause was barred by the statute of limitations. It was shown by the evidence that the ancient bed of the river ran along the .eastern boundary of relator’s farm, there making a curve or bend towards the west; that for ten years prior to 1880 a railroad had crossed this bend in the river by two bridges within a short distance of each other, on relator’s land, leaving the water free to flow in its ancient bed; that in 1880 the New York Gity & Northern Railroad .Company dug a ditch along the east side of its track .on the land of one Odell, so that the waters of the river flowed through it on *303"that side of the track,—the ancient channel under the bridges being left open, -and the water flowing there when the river was at high water. The defendant corporation, the successor of the New York City & Northern Railroad 'Company, was organized October 10, 1887, by persons who had bought the road under a foreclosure sale. The jury rendered a verdict for the relator, by direction of the court, upon which a judgment was entered directing the issuance of a peremptory writ of mandamus. From this judgment defendant -appeals.
Argued before Dykman and Pratt, JJ.
Holmes & Adams, (George H. Adams, of counsel,) for appellant. Henderson cf- Treadwell, (L. B. Treadwell, of counsel,) for respondent.
Pratt, J.
We regard Brown v. Railroad Co., 12 N. Y. 486, as an authority that defendants may be held responsible for injuries now taking place, 'though the original acts from which these injuries spring were performed by " their predecessors in title. If the duty which devolves upon a railroad company to restore and maintain a stream in its original bed, after it has been -'temporarily diverted for purposes of construction, could be avoided by a transfer of ownership, the rights of land-owners would he much imperiled. We • think the duty is transferred with the property. The statute of limitations is ¡invoked by defendants. It is argued that as the digging which at last re•sulled in changing the river bed was done in 1880, more than six years before ¡this action was begun, the cause of action arose in 1880, and is barred by the •statute. It appears that the change in the bed of the stream did not take place -at once, upon the excavation of the new channel. The filling up and final obliteration of the ancient channel was a work of time, and is not shown to ¡have taken place more than six years before action brought. Even did that fact appear, it may well be doubted whether the statute would apply, but that question need not be determined. Judgment affirmed, with costs.
Dykman, J., concurring.