Legal Question in Real Estate Law in New York
We have a small brook, 5' deep and 15' across that runs along our property. We've been here for 16 years. In a June 2006 storm the culvert that services the brook under the road became clogged with debris from upstream. This forced the waters over the sides and through our lawn. Also the large cement blocks(4'x4') that were installed to protect from erosion were tumbled about and the brook filled with debris and stone as high as the sides. We had no personal losses. Within a week the township cobbled together the culvert and ran a bulldozer through the brook to widen it enough to channel any more rains. Two weeks ago we had Tropical storm Lee come through our area. The inadequate culvert again clogged, filled the creek with debris and sent water streaming over the banks. Unfortunately water made it into the basement via an entry door. We ended up with 14 inches of water in a finished basement that night, pumped out by fire dept but as the water streamed across my lawn all night we ended up with 29 inches that was pumped out next day. Some of this was due to a failure of a perimeter sump pump but we had 6 sumps that couldn't keep up. I have gone to the highway and town supervisors seeking help with a bull dozer to alleviate the debris. My pleas have been ignored and a "Private Property" defense stated and I would be responsible. Also I have asked them to walk up the creek alongside my home and don't believe they have. I was also directed to the town board for resolution(meeting was 3 weeks away at time and is two now). As i sit here and it is raining, the brook nearing it's shallow peak, I've had enough. Is there some precedence to force the town to mitigate this issue. I have also been told the know they need to fix the culvert but will wait for Fema monies before doing so. irritating as i know they fixed multiple culverts on the same road over last 5 years.
I don't need to lose another 15 thousand in cabinets, rugs and appliances. More if i hire some one.
1 Answer from Attorneys
Generally, the law is that a municipality "may not be held liable for a mere overflow of the brook, in the absence of conditions enjoining some duty with respect thereto and, ordinarily, no duty would be cast upon [a municipality] to restrain the waters of the brook between its banks, nor was there any duty on the part of the [municipality] to keep the brook free from obstruction, not of its own causing. ... Liability may not be predicated upon failure to provide adequate sewers to carry off the surface water naturally draining into the brook, or for failure to build additional sewers, for in determining what drainage sewer system was necessary or adequate, the [municipality] acted in a governmental capacity and may not be held liable for nonperformance or error in judgment" (McCutchen v. Village of Peekskill, 3 NYS2d 277 [1938]).
Simply put, the village is not responsible unless it caused the obstruction. Based on your question, the village did not cause the obstruction. Rather, the storm caused the obstruction from an inadequate culvert. The village "may not be held liabile for nonperformance or an error in judgment." However, you may have a claim if the village was placed on notice that the culvert (assuming that the culvert is on public property) was failing. If that is case, the village may be responsible for damages. Since you had no problems for 16 years, you might have a problem holding the village responsible.
I would suggest working with the village to fix the problem rather than seeking a judicial resolution.
Mike.
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