New York State Court of Claims

New York State Court of Claims

CORN v. STATE OF NEW YORK, #2004-018-299, Claim No. 103476


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants seek recovery for damage to their real property as a result of the alleged negligence of the State of New York Department of Transportation (hereinafter DOT). Very few facts are in issue.

Claimants purchased the subject real property in the late spring of 1998. The property is located in the Town of Russia in the County of Herkimer. The property purchased consists of approximately 15 acres, five of which contain a residence and lawn area, another five are wooded and another five acres contain what had previously been trout breeding ponds. Some of these pond areas abut State Route 28. Claimant, Michael Corn, described the property affected by this lawsuit as the five acres made up of five separate ponds. He identified these ponds on the survey map entered into evidence (Exhibit 9). The fourth and fifth ponds are nearest to State Route 28 and are larger than the other three. Ponds one, two, and three had been used for breeding trout. Ponds four and five are separated by an earthen berm, and on the eastern most side of pond five, is a concrete weir.

In September of 1999, Robert White, a resident engineer with the New York State Department of Transportation Herkimer Residency went to check two areas where DOT had incurred problems with the unsafe buildup of water near roadways due to the blockage of culverts by beaver dams. One of those areas included claimants' property. At claimants' property, Mr. White observed an unusually high water level close to the road. He exited his vehicle and tried to find the drainage culvert to determine whether or not there was a blockage. The vegetation and water depth prevented him from locating the culvert. Mr. White noted that some remedial work would need to be accomplished before winter to avoid damage to, or a dangerous condition on, State Route 28.

According to highway maintenance reports[1] the Highway Maintenance Division was assigned to clear the culvert on or near claimants' property; this was done in early November 1999. The crew worked at this location on November 5, 8 and 9, 1999, according to the records.

On November 5, 1999, Edward Vogt, Highway Maintenance Supervisor I, went out to the site with a crew and observed the unusual water level on claimants' property and reported it. At that time he, too, attempted to find the culvert and was unable to do so due to the water level and downed trees. He did note that water was not flowing through the culvert pipe, but was instead, seeping underneath the roadbed which, in and of itself, would cause damage to the road as soon as the temperatures dropped below freezing. The culvert had to be cleared first in order to allow the water to drain. To find the culvert, Mr. Vogt had to telephone the local DOT office to obtain a reference point from the map of the area. After finding the head-wall of the culvert, (the concrete wall encasing the inlet pipe) a platform was built for the machinery to sit upon in order to reach the blockage. The water was approximately 13 feet deep from the surface to the bottom of the head-wall. A Gradall, a hydraulic excavator, was used to reach down and loosen a board which had, apparently, been placed across the drainage culvert on the inlet side. This allowed a significant amount of water to drain and it became clear that someone[2] had driven in steel fence posts on either side of the drainage pipe and intentionally attached four 2" x 6" boards to block the water from draining naturally. After the first board was removed with the Gradall, the remaining boards were removed manually.

The ponds of claimants' property were spring fed; and as a result, there was a stream that flowed naturally down to the culvert area. On the eastern side of pond five, near Route 28, there was an extensive beaver dam which also blocked a significant amount of water from draining down through the culvert.

Mr. White testified that the DOT was most concerned with the low point of the road somewhat further west of the beaver dam, since that was where damage or ice was most likely to create problems, if there was significant precipitation during the fall, winter, and again in the spring. In order to alleviate that potential problem, after clearing the culvert and draining a portion of the blocked water, Mr. Vogt and his crew removed a portion of the beaver dam on November 9. The witnesses varied in their opinions of the length of the beaver dam which was removed; the measurements varied from five to ten feet in width. The testimony was consistent, that they removed approximately two feet in depth.

The highway maintenance crew used the Gradall to reach as far into the wetland area as possible to remove the portion of the beaver dam which blocked the natural stream flow. However, given the limitations of the Gradall's length,[3] and the fact it must sit on a solid and relatively level surface, only a small portion of the dam could be removed. That removal, however, drained a significant amount of water, including water from all five ponds, on claimants' property. In addition to the loss of water, the concrete weir was damaged by the drainage. Mr. Corn could not specify the extent of the damage to the weir caused by the drainage of water since the weir had previously been submerged. The morning of November 10, 1999, was the first time claimant, Mr. Corn, noticed the significant water-level drop and contacted the DOT. He met with Mr. White and showed him the result of the DOT's work. Mr. White may have informed claimant that they had small claim forms which he could complete to obtain some remuneration for any damage he believed occurred to his property.

Received into evidence, as Exhibits 1 and 2, were photographs of the ponds and the affected area taken six days after DOT had removed a portion of the beaver dam. They depict a portion of the beaver dam which the beavers had begun to rebuild.[4] Mr. Corn testified that he had assisted the beavers' efforts to rebuild the dam by placing sandbags in the area which had been destroyed by the DOT in an effort to maintain sufficient water for the beavers to survive the winter. Those photographs also show another beaver dam further west of the area the DOT affected. This particular dam was apparently untouched during this procedure. It was Mr. Corn's testimony that since 1999, the water levels in the ponds have been restored or may even be higher than at the time the DOT performed the work at issue.

It is the claimants' position that the State entered upon their property without permission and removed a portion of the existing beaver dam, draining almost all of the water from ponds four and five, and a substantial amount of water from the remaining three ponds. Claimants assert that the State is liable for breaching its duty to them, a duty which they assert arises under two theories. First, Environmental Conservation Law § 11-0505(6) prohibits the disturbance or destruction of a beaver dam without the express permission of the Department of Environmental Conservation (DEC). It is undisputed that DOT did not have DEC permission or approval to remove a portion of the beaver dam, although they had received permission in the past under similar circumstances. Alternatively, claimants argue that the State owes a duty to maintain its roadways without causing damage to abutting landowners' property, even if the work is performed within the State's established right-of-way. Claimants also argue that the State wrongfully appropriated their property without due process and just compensation.

It is unequivocal, that for an action sounding in negligence to stand, there must be a duty owing to the claimants (Darby v Compagnie Natl. Air France, 96 NY2d 343, 346). No duty arises for the benefit of the claimants from Environmental Conservation Law § 11-0505(6). That section provides: "Except as permitted by the department [of Environmental Conservation], no person shall at any time disturb a beaver dam, house or den or a muskrat house or den or any structure constructed by a muskrat in which it can take shelter" The term "person" does not generally include the State. (General Construction Law § 37; Saranac Land & Timber Co. v Roberts, 195 NY 303, 320-321; Towner v Jimerson, 67 AD2d 817; 230 Park Ave. Assoc. v State of New York, 165 Misc 2d 920, 928). "A statute does not apply to the State where its sovereign rights, prerogatives or interests are involved unless, it is specifically mentioned therein or included by necessary implication" (Towner v Jimerson, supra at 817). The ownership of wild animals, such as the beavers, is in the State, as sovereign, for the benefit of all the people (Barrett v State of New York, 220 NY 423, 426-429 [discussing chapter 20 of the Laws of 1900 and chapter 674, § 1 of the Laws of 1904, the predecessor statute to ECL § 11-0505(6)]). The purpose of ECL § 11-0505(6) is clear from reading it: to protect the Sate's beaver population. It does not provide a private cause of action, and does not prevent the State from taking actions to remove a beaver lodge, where acting in its sovereign capacity it determines such removal is necessary to prevent harm to people or infrastructure.

The State does owe a duty to act reasonably to not cause damage to a landowner's property when maintaining its roadways whether the State is entering upon privately owned lands or is performing work within an established right of way.

Highway Law § 45(2) authorizes the State to enter upon lands, streams or creeks adjacent to State highways for purposes of maintenance in order to keep the waters of such streams or creeks within their proper channels and to prevent their encroachment upon State highways. This statute provides the State with the authority to come upon claimants' land to perform work necessary to keep the water from causing damage to Route 28.

In this case, however, based upon testimony of the DOT workers as well as the exhibits in evidence, the work the State performed in removing a portion of the beaver dam was within its right-of-way. Exhibit 9, which is a survey of the relevant portion of claimants' property, shows that approximately 25 feet of the beaver dam is on the State's right-of-way. Therefore, the Court finds that the State's work in removing between five and ten feet of the dam was also within the State's right-of-way.

The question then turns to whether the State's actions in removing a portion of the beaver dam, thereby draining claimants' ponds, breached a duty of care owed to claimants. There were no cases found on point. There are many cases addressing a municipality's liability for casting water upon the property of an adjacent owner by means of ditches, pipes, or channels in the building or maintenance of public roadways or sewers. These cases impose liability upon a municipality only when the volume of water flowing onto the land of an adjacent property owner is increased or changed by the municipality's actions in artificially altering the natural flow of water, by pipes, drains, ditches or channels, redirecting the surface water onto another's property (see Musumeci v State of New York, 43 AD2d 288; Kerhonkson Lodge v State of New York, 4 AD2d 575; LaRose v State of New York, 199 Misc 317; cf Fox v City of New Rochelle, 240 NY 109; Stewart v State of New York, 248 AD2d 761; Alley v State of New York, 28 AD2d 1147; Bull v State of New York, 231 AD 313; Randle v City of Rome, 23 Misc 2d 436; Scamp v State of New York, 189 Misc 802).

Here, claimants argue that the State's actions improperly removed or drained water from their property. In Friedland v State of New York, 35 AD2d 755, the appellate division reversed a decision finding the State liable for its actions in constructing a highway. In Friedland, supra, all work performed by the State was conducted on its own property. Nonetheless, the claimants therein contended that by the State's construction of the highway, the rate of surface water discharged had increased and its absorption by the soil had decreased. As a result, the stream leading to claimants' pond had insufficient water during dry periods causing the pond to develop algae and during heavy rainfall the water in the stream flowed much faster, flushed through the pond and over the dam causing the pond to become stagnant. The appellate court held that, "[r]iparian owners above or below have equal rights to improve their properties, come what may to the surface waters, so long as the improvements are made in good faith to fit a rational use for which it is adopted and provided the water is not cast by means of drains or ditches upon adjoining premises" (Friedland v State of New York, supra at 756). "As to the use of percolating waters, a land owner has the right upon its own lands to make use of them as he reasonably can, even though he drain the spring upon his neighbor's premises" (Friedland v State of New York, supra at 756).

The State, in removing a portion of the beaver dam, acted reasonably for the purpose of alleviating the encroaching water upon Route 28 and the potential damage to the roadway. The State performed the work within its established right-of-way. There was no rechanneling, or re-directing of the water, there was no interference with the natural flow of the springs which supply claimants' ponds. The State removed an obstruction which was creating a potentially dangerous and damaging condition. Claimants' argument for imposing liability is not more persuasive because the obstruction removed was a portion of a beaver dam. Claimants had no inherent right to the maintenance of the beaver dam.

Claimants also have no cause of action for the appropriation, de facto taking, of their property. First no physical invasion of their property occurred. However, even without a physical invasion, a de facto taking can occur where the State's actions affect the free use and enjoyment of the property or restrain the use of the property to the extent that its value is affected (City of Buffalo v Clement Co., 28 NY2d 241, 253; Ullrich v State of New York, 178 Misc 2d 194). There is no proof before the Court which would support such a finding here.


March 30, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit 7.
[2]It was never determined who did this.
[3]It had a 17' reach.
[4]The Court made a site visit, at the request of both parties, on August 19, 2003.