New York State Court of Claims

New York State Court of Claims

TOWN OF WATERFORD v. THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and THE NEW YORK STATE CANAL CORPORATION, #2008-015-508, Claim No. 111332


Synopsis


Claim for property damage to town property caused by erosion of the western bank of the Champlain Canal was dismissed after trial. Claimant failed to prove erosion of the bank or negligence in widening the canal in 1885.

Case Information

UID:
2008-015-508
Claimant(s):
TOWN OF WATERFORD, NEW YORK
Claimant short name:
TOWN OF WATERFORD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and THE NEW YORK STATE CANAL CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111332
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Dreyer Boyajian, LLPBy: John B. Casey, Esquire, Craig M. Crist, Esquire and Aaron E. Connor, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 10, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, Town of Waterford (Town), alleges the defendants have failed to properly maintain the western bank of the Champlain Canal resulting in damage to a roadway owned by the Town. The claim alleges:

"8. Defendants have negligently, intentionally or recklessly failed to maintain the Champlain Canal and the embankment below Canal Street in a reasonably safe condition to prevent the total loss of lateral support that occurred and continues to occur and the destruction of Claimant's real property."
The case proceeded to trial on April 23, 2008.

Ronald A. Bova was the first of two witnesses called to testify on the claimant's behalf. Mr. Bova related that he has been a Consulting Engineer for approximately twenty-five years and is a licensed Professional Engineer in both New York and Vermont. His work history includes employment with various engineering consulting firms as well as the New York State Department of Transportation and the New York State Thruway Authority.

Mr. Bova was first consulted regarding Canal Street and the matters at issue herein in 2005. Canal Street is located above the western bank of the Champlain Canal and runs in a northerly direction approximately 1200 feet beginning at the Fulton Street Bridge. It then turns at a "dogleg" and continues in a westerly direction to Route 32 (TR 21) [1]. The Champlain Canal is located at the base of the western bank and runs roughly parallel to Canal Street. A right-of-way owned by the Town of Waterford extends north from the dogleg to the northern limits of what was once a schoolhouse and is now owned by the Northside Fire District. Mr. Bova testified that from his review of the records the State of New York owns the Champlain Canal.

As part of his investigation, Mr. Bova inspected the 1200-foot area of Canal Street from Fulton Street north, took photographs and observed the banks of the canal. He also secured the performance of soil borings, the digging of a test pit, and preparation of a topographical survey. He testified that a topographical survey records elevations used in preparing a cross-section of the western bank slope. The soil boring was performed to determine the depth at which bedrock was encountered. The test pit was dug to determine the nature of the soils (Tr. 25).

According to the witness, the photographs received as claimant's Exhibit 1 depict the top of the western bank of the canal and were taken at various times from the 1990's to 2001. Mr. Bova testified that these photographs reflect both the movement of a fence and guiderail at the top of the slope and cracking of the pavement on Canal Street (Tr. 29-30).

Exhibit 2 is an excerpt of a tax map of the area. The witness indicated that the Town of Waterford's right-of-way extends approximately 125 feet south of the dogleg (just north of the tip of the pie-shaped property denoted as "4" on Exhibit 2) (Tr. 177-178), 275 feet north of the dogleg (Tr. 182), and 350 feet down the western bank of the canal to the blue line (Tr. 176). The blue lines located on the eastern and western banks of the Champlain Canal delineate the boundaries of State- owned property and are reflected on a survey map dated 1929[2] as well as the 2006 topographical survey conducted at the request of Mr. Bova (Exhibits 13 and 13-A).

Referencing Exhibits 3 and 4, Mr. Bova testified that in 1870 the State called for the enlargement of the Champlain Canal. Exhibit 3 states that the enlargement was required to "a six-foot depth, a 58-foot surface width, and a 44-foot bottom width." Although Mr. Bova is unaware of the existence of work orders, contracts, as-built drawings or any other documentation indicating the performance of the enlargement work in the area at issue, he testified that based upon his review of "record mapping", the canal was in fact widened by approximately nine or ten feet (Tr. 46-47). According to the witness, a map pre-dating the enlargement of the canal reflects that Canal Street continued in a northerly direction behind what was then a schoolhouse (now a firehouse). Maps post-dating the enlargement reflect the termination of Canal Street at the dogleg, indicating, according to Mr. Bova, that the northern portion of Canal Street was encroached upon by the canal enlargement thereby necessitating the construction of the dogleg (Tr. 41-42, 47-50). Mr. Bova also referred generally to an annual engineering report for the year 1867 reflecting improvements to be made to the canal system (see Exhibit 5).

Claimant argues that the canal enlargement was significant because it increased the steepness of the western bank of the canal making it more susceptible to erosion (Tr. 42). As will be set forth in more detail below, Mr. Bova testified that the slope of the western bank of the canal in the northernmost section of Canal Street is a one-on-one slope while industry standards permit a slope not exceeding one-on-two.

Mr. Bova testified that a soil boring performed in the area of the dogleg where Canal Street turns west toward Route 32 revealed that bedrock was first encountered at a depth of ten feet. It also established that the "overburden" above the bedrock was comprised of silty loam soil (Tr. 55-57, 61-62). The soil boring was performed by Soil & Material Testing, Inc., but the one paragraph report prepared following the test fails to reflect the location at which the test was performed (Exhibit 8). Mr. Bova described the western bank of the canal as composed of outcroppings of undulating soft shale covered by what he described as "Rhinebeck silt loam" overburden (Tr. 55).

A test pit was dug 100 feet south of the soil boring, in the area of Canal Street where there was cracking pavement (Tr. 57). Mr. Bova testified that the test pit revealed no rock within a depth of six feet and determined that the soil at the location was Rhinebeck soil (Tr. 57). In addition to the soil boring test performed at the request of Mr. Bova, soil borings performed on the western bank of the canal in the area of the Fulton Street Bridge by the Department of Transportation in 2004 indicate that rock was encountered at a depth of approximately 13 feet (Tr. 59-61; Exhibit 7).

Mr. Bova was shown a slope inspection report dated March 28, 1995 prepared by the New York State Thruway Authority. He stated that he disagreed with various aspects of the report, including the author's conclusion that the surface of the slope was shale bedrock with "a thin layer of detritus, composed of soil, shale fragments and miscellaneous fill" (Exhibit 9) (Tr. 66-68). The author of the report also concluded that "[a]reas on the slope may experience a one to two feet deep [sic] sliding of the surface material, otherwise the slope is stable" (Exhibit 9).

According to Mr. Bova, evidence of what he described as alligator cracking of the Canal Street pavement is an indication that the western bank of the Canal is unstable and the infrastructure under the roadway is being compromised as a result. The primary cause of the instability, according to Mr. Bova, is erosion at the toe of the slope of the western bank, which he defined as the area where "the slope meets the bottom of the channel. . ." (Tr. 70-71). He described the erosion occurring at the toe of slope, and its effect, in the following manner:
"[T]he movement of the water, just the presence of the water at the toe of that slope in connection with the type of soil that we have . . . as that [current] moves, whether it be wind or the lock itself, . . . it's taking soil with it and that erosion, it cuts into that toe of slope, and over time, we're talking about many years, it continues many years over a 100 years where it's little by little, it continues to do that and then the erosion causes the soil that's above it to slide down. And again, as that continues to slide, the soil that's depending on it is further up on the top of the bank, which is along the roadway, that's moving as well. . ." (Tr. 71).

The western bank of the canal was inspected by Dianne Denniston, a Geotechnical Engineer employed by the State of New York. In a report prepared following her inspection, Ms. Denniston concluded that the slope appears to be internally stable and that "[t]he pavement distress in this area on Canal Street is being caused by erosion due to surface runoff" (Exhibit 12). Ms. Denniston indicates in her report that Canal Street is a low point that naturally collects surface runoff "which runs down the adjacent slope into the canal, eroding the surface of the slope and undermining the pavement in the process." She states in the report that in August 2003 the Town installed a drop inlet connected to a corrugated pipe which runs from the drop inlet down the bank of the canal. A berm was also installed in the area of the dogleg between the drop inlet and the top of the western bank. In addition, concrete blocks were placed on the slope to support the roadway. Ms. Denniston stated in her report that "[u]nfortunately, this installation was not enough to accommodate all the runoff from heavy rain storms [sic], and subsequently, runoff has overtopped the berm and eroded out the fill that was placed around the pipe" (Exhibit 12).

Mr. Bova disagreed with the conclusions in Ms. Denniston's report because, in his opinion, the loss of soil referenced in the report occurred prior to the installation of the drop inlet (Tr. 89, 92). He also opined that based upon the calculations performed by John Masi, P.E., one of defendants’ experts, the drop inlet installed by the Town of Waterford was more than adequate to accommodate a 100-year storm event (Tr. 93-94).

In an attempt to prove that erosion was in fact occurring as the result of slope instability, Mr. Bova first testified regarding his comparison of a 1902 as-built drawing for the Fulton Street Bridge to a current measurement he took in that area. To do this, he selected a structure appearing on the 1902 drawing, a brick house, and computed the distance from the foundation of the house to the top of the western bank of the canal using a scale. According to Mr. Bova, the 1902 map reflects a distance of 26 feet from the foundation of the house to the top of the western bank of the canal. The witness testified that he went to the same location and measured the current distance from the foundation of the house to the top of the bank, a distance he determined was 16 feet. Mr Bova attributed the ten-foot difference to erosion of the bank.

To further confirm erosion of the western bank, Mr. Bova compared measurements taken from the 1929[3] survey map of the canal to the topographical survey map created in 2006. Mr. Bova testified that the "blue lines" delineate the boundaries of State-owned property and do not change (Tr. 96). One blue line is located on the western bank of the canal and one blue line is located on the eastern bank of the canal. Both blue lines are indicated on the maps by dashed lines (Tr. 111; Exhibits 13, 13-A, 13-B). Using the blue line on the eastern side of the canal as a fixed point of reference, Mr. Bova measured the distance (i) from the eastern blue line to the western blue line and (ii) from the eastern blue line to the toe of the slope of the western bank of the canal at seven specific points common to both the 1929 map and the 2006 topographical survey map (Exhibits 13-A and 13-B; see also Exhibit 13; Tr. 111-122). At point "1" (denominated as such on Exhibit 13-B), the distance from the eastern blue line to the toe of the slope of the western bank was 111.25 feet in 2006 and 106.75 feet in 1929. According to Mr. Bova, this data reflects a loss of 4.5 feet at this location due to erosion. At point "2", the distance from the eastern blue line to the toe of the slope of the western bank was 108.75 feet in 2006 and 101.25 feet in 1929, indicating a loss of 7.5 feet at this location due to erosion. At point "3", the distance from the eastern blue line to the toe of the slope of the western bank was 106.00 feet in 2006 and 100.00 feet in 1929, indicating a loss of 6 feet at this location due to erosion. At point "4", the distance from the eastern blue line to the toe of the slope of the western bank was 100.00 feet in 2006 and 100.00 feet in 1929, indicating no erosion had occurred at this location. At point "5", the distance from the eastern blue line to the toe of the slope of the western bank was 97.5 feet in 2006 and 93.75 feet in 1929, indicating a loss of 3.75 feet at this location due to erosion. At point "6", the distance from the eastern blue line to the toe of the slope was 98.75 feet in 2006 and 100.00 feet in 1929, indicating an accretion of 1.25 feet at this location. At point "7", the distance from the eastern blue line to the toe of the slope of the western bank was 96.25 feet in 2006 and 100.00 feet in 1929, indicating an accretion of 3.75 feet at this location.

Based upon Mr. Bova's investigation and measurements he opined with a reasonable degree of engineering certainty that the Town of Waterford's property on Canal Street adjacent to the slope was being damaged because the western bank of the canal is too steep and is unstable due to erosion at the toe of the slope (Tr. 129). He summarized his findings as follows:
"The erosion at the toe of that western bank in this area near the dogleg, and then further north - there's actually sloughing that's taking place. So, it's instability due to the movement of water and that's causing that earth to move downwards towards the channel, and then that movement along the edge of the channel is reflecting upwards into the slope and along the edge of the roadway causing movement along the edge of roadway as well. Movement of guiderail posts, fence posts and also the pavement itself, and the concern is also eventually movement of that water main" (Tr. 129-130).
He opined that the alligator cracking he observed in a 600-foot portion of Canal Street was caused by movement of the asphalt surface of the roadway due to erosion of the western bank of the canal. He also opined that the Town of Waterford can do nothing to correct the problem in the area above the blue line of the western bank because the erosion is occurring below the blue line at the toe of the slope which is "Canal property" (Tr. 131). He stated that his investigation revealed no evidence the defendants had taken remedial measures to maintain the stability of this 600-foot section of the western bank of the canal (Tr. 132).

Mr. Bova denied that water runoff from Canal Street could be a contributing factor to slope instability at this location. Instead, he propounded the following theory:
"The cause of this particular failure, that 600-foot section, that is caused from the erosion that's taking place, subsurface ground water that's percolating out through the slope that's identified in the soil surveys. That's there. I witnessed seeing that percolate through the slope. That is rendering the overburden instable [sic]" (Tr. 139).

Mr. Bova testified that he was aware of an event that occurred in September 2003 (Tr. 148-149) in which a "sheer failure down below the surface [of the western bank] . . . caused the entire area then to let go down into the channel" (Tr. 49). He opined that the sheer failure or landslide as he called it was not due to surface water runoff but to "a combination of subsurface ground water and the nature of the steepness of that slope at that location prior to the '03 incident" (Tr. 151). Following this sheer failure, the Town of Waterford made emergency repairs on the bank of the slope in the area of the dogleg (Tr. 150-151).

In Mr. Bova's opinion, the only acceptable method of stabilizing the slope of the canal's western bank is to install two sections of pilings - one at the toe of the slope, and one approximately midway up the slope. In this way, according to the expert, a one-on-two slope can be established by using riprap or a reinforced type of earth material (Tr. 133-134). He estimated the cost of repairs at $2,000,000 (Tr. 136).

On cross-examination Mr. Bova indicated that the eastern edge of Canal Street forms the eastern boundary of property owned by the Town of Waterford (Tr. 169, 173-174). The town also holds a right-of-way which extends down to the blueline on the western bank of the canal and runs approximately 275 feet north of the dogleg and 125 feet south of the dogleg (Tr. 176-182). He testified that approximately 600 feet of Canal Street has been damaged due to the instability of the western slope of the Canal (Tr. 183-184, 188; Exhibit 2).

Mr. Bova testified that there were no swales or drainage structures on Canal Street other than the drop inlet installed at the dogleg in 2003 (Tr. 187-188). Although he testified on direct examination that the capacity of the drop inlet was more than sufficient to accommodate the flow of water from a 100-year storm event, he admittedly based this opinion on a mistaken understanding of statements contained in defendants' expert disclosure regarding a Mr. Masi (Tr. 193-194). Mr. Bova conceded in this regard that water does not flow from Route 32 to Canal Street (Tr. 194)[4]. Although Mr. Bova did not know the rate of water flow directed to the drop inlet installed on Canal Street, he opined that it was no more than the rate of water flow on Fulton Street, although he admitted he did not know the rate of flow at that location either (Tr. 200). He also testified that he was aware that water runoff flows to the drop inlet from "impervious" areas including the parking lot of the tire store (north of the dogleg) and the crest(s) of Canal Street itself (Tr. 201).

With regard to the alligator cracking on Canal Street, Mr. Bova testified that he undertook no studies to determine whether there was a roadbed underlying the street or the thickness of the pavement (Tr. 216-217). He also admitted that he never inquired of the Town of Waterford when it had last paved Canal Street prior to 2003 (Tr. 188).

Mr. Bova was unable to confirm the amount of erosion which allegedly occurred on the western bank of the canal near the Fulton Street Bridge by reference to his field notes. Although he testified on direct examination that the area now measured only 16 feet from the foundation of the house to the top of the western bank of the canal (whereas by scaling the 1902 map he testified the distance was 26 feet in 1902), Mr. Bova stated that his field notes contained no record of this measurement (Tr. 247).

With respect to the measurements taken at the seven designated points along the eastern blue line, Mr. Bova explained at trial that he selected seven points common to both the 1929 and 2006 topographical maps and determined at each point, using the respective scales, the distance between the eastern blue line and what he contended was the toe of the slope of the western bank as indicated on the respective maps. Mr. Bova stated that both maps depict the toe of the western slope and not the waterline of the canal at the time the respective maps were prepared. His testimony regarding what constitutes the toe of the slope was somewhat inconsistent.

Although the locations of the blue lines are static and have not changed since the 1929 map was created, the measurements Mr. Bova calculated from scaling both the 1929 and 2006 topographical map to confirm the distance between the eastern and western blue lines (as indicated on Exhibit 13-B) were different at five of the seven points chosen by the witness[5]. The witness described points 1 and 7[6] on Exhibit 13-B as "survey points" identified on the 1929 map. The blue line to blue line distances scaled from the 1929 and 2006 maps were identical at these two points. At point 2 Mr. Bova determined the distance between blue lines on the 1929 map was 126.25 feet whereas the distance between blue lines on the 2006 map at this location was 130.00 feet. Mr. Bova conceded that the discrepancy between blue lines was sufficiently significant to render his measurements from the eastern blue line to the toe of the western slope inconclusive as to the extent of erosion at this location (Tr. 462, 464). At point 3, the distance between the eastern and western blue lines using the 1929 map was 121.88 feet and the distance measured using the 2006 map was 122.25 feet , a difference of .37 inches which the witness described as insignificant. At point 4 the distance between blue lines on the 1929 map was 112.50 feet whereas the distance between blue lines on the 2006 map at this location was 113.75 feet. Although Mr. Bova testified that this discrepancy was insignificant (Tr. 464), the measurements from the eastern blue line to the toe of the western slope at this location on the 1929 map as compared to the 2006 map were the same, i.e., no erosion was identified at that location. At point 5, the distance between blue lines on the 1929 map was 106.25 feet whereas the distance between blue lines on the 2006 map at this location was 110.00 feet. Mr. Bova conceded that the discrepancy between blue lines was sufficiently significant to render his measurements from the eastern blue line to the toe of the western slope at this location inconclusive (Tr. 463). At point 6, the distance between blue lines on the 1929 map was 106.25 feet whereas the scaled distance between the blue lines on the 2006 map at this location was 110.00 feet. Mr. Bova conceded that the discrepancy between the scaled blue line distances at this location was sufficiently significant to render his measurements from the eastern blue line to the toe of the western slope inconclusive with regard to the existence of erosion (Tr. 463).

The witness testified that despite the aforementioned inaccuracies in the scaled distances between the eastern and western blue lines derived from the 1929 and 2006 maps, the data still supported the conclusion that erosion had occurred at the toe of the western slope. For example, at point 2 on Exhibit 13-B there was an admitted variation of 3.75 feet between the blue line to blue line measurement taken from the 1929 and 2006 maps. Nevertheless, Mr. Bova concluded that the 7.50-foot increase in the distance between the eastern blue line and western toe of slope from 1929 (101.25 feet) to 2006 (108.75 feet) indicates erosion at the toe of slope of the western bank of at least 3.75 feet (Tr. 381). He testified that for those points where there was a significant discrepancy in the distance between blue lines, determining the extent of erosion by measuring from the eastern blue line to the western toe of the slope would produce an inaccurate result (Tr. 402). Mr. Bova stated that for those points where the distance between blue lines appeared generally accurate, however, the concomitant measurements from the eastern blue line to the toe of the western slope confirmed erosion of the western bank at those locations. According to the witness, the existence of erosion was also confirmed by his personal observations and, at certain of these points, through comparison of the distance between the western blue line and the western toe of the slope.

Stanley W. Dziarcak was claimant's next witness. Mr. Dziarcak lives at 18 Canal Street in the Town of Waterford, a pie-shaped parcel denominated on the tax map (Exhibit 2) as property number "4" (Tr. 472). The witness testified that he has lived at this location since the date of his birth in 1956. His property is located 363 feet north of the Fulton Street bridge and is bordered on the west by Canal Street and on the east by the canal. Mr. Dziarcak testified that a portion of his property has been eroded over time as evidenced by a comparison of photographs taken in 1991 to photographs taken more recently (see e.g. Exhibits 1 and 18). He testified that neither he nor his family has dumped debris on the bank of the canal and that he has never observed surface water collect on Canal Street or flow over the western bank of the canal. As the result of damage allegedly occurring to his property from the effects of erosion, Mr. Dziarcak commenced an action against the State of New York in the 1990's.

On cross-examination, Mr. Dziarcak testified that his claim against the State was discontinued at trial upon the advice of counsel (Tr. 519). This concluded claimant's case in chief.

Defendants read portions of the examination before trial testimony of Michael Rougia and Joseph Rougia, employees of the Town of Waterford, into the record. Michael Rougia is an equipment operator in the Town Highway Department and has been employed in that capacity for approximately 16 years. He testified that he participated in the installation of the drop inlet at the low point of the dogleg on Canal Street (Tr. 546, 548). According to the witness the purpose of the drop inlet was to capture surface water and channel it over the side of the western bank of the canal (Tr. 546, 547). The drop inlet according to this witness was the only drainage structure on Canal Street (Tr. 549).

At his examination before trial Joseph Rougia testified that he too is employed by the Town of Waterford as an equipment operator and has been so employed for 32 years. Mr. Rougia recalled performing routine maintenance work on Canal Street, such as brush removal and plowing since as early as 1972. He also recalled repairing potholes and installing sanitary sewers on Canal Street in 1975. Other than repaving the area where the sewer trench had been dug in the roadway, Mr. Rougia recalled no other significant repaving of Canal Street. Mr. Rougia testified that he was "on the job" when the drop inlet was installed and that the purpose of the drop inlet was to "catch" surface water runoff (Tr. 558). He was unaware of any other drainage structures on Canal Street (Tr. 559).

The defendants called Thomas H. McCartney to testify at trial. Mr. McCartney is a licensed surveyor employed by the New York State Thruway Authority. He testified that the map referred to at trial as the 1929 map was actually created in 1925 for the purpose of establishing the blue lines on the eastern and western banks of the canal. The map does not reflect elevations because it is a property line map, nor does it depict the toe of the slope (Tr. 595). According to this witness, to the extent the map reflects the edge of the water, this is a "very indefinite line" (Tr. 594). Not only does the water level fluctuate but the contours of the bank along the canal change so that obtaining an accurate survey of the water's edge would require taking a "shot" about every foot (Tr. 594).

Mr. McCartney stated that use of a scale is an imprecise method for determining distances (Tr. 576). According to the witness "[W]e don't use scaling for anything that needs to be accurate at all" (Tr. 576). He also testified that the blue lines on Exhibit P are drawn with a thick pen representing approximately three to four feet (according to scale) and to measure from the blue line with use of a scale would be inaccurate for this reason as well (Tr. 583-584). Mr. McCartney testified regarding a survey performed in 1997 and updated in 2006 which identified the blue lines on the canal in the area of Canal Street. He calculated that the edge of the pavement of Canal Street is 14 feet from the blue line in the area where the drop inlet was installed (Tr. 591).

Kenneth C. Murray, P.E. was the defendants' next witness. Mr. Murray is a licensed Professional Engineer and has been employed as a Construction Supervisor for the New York State Thruway Authority since 2007. Prior to his appointment as Construction Supervisor he was an Assistant Division Canal Engineer for the New York State Canal Corporation where he oversaw various maintenance projects. Before joining the Canal Corporation, Mr. Murray was employed as a Geotechnical Engineer for the New York State Department of Transportation. The witness testified that he was informed of a "pavement collapse" on Canal Street and performed an inspection of the site on August 21, 2003 (Tr. 640). When he arrived at the Canal Street location he was met by a Town employee who pointed out the area of the washout, which had occurred on the edge of the pavement (Tr. 641). The witness observed that at some point water had actually undermined the edge of the pavement (Tr. 646). He also observed that hay bales had been placed on the slope in addition to various debris which had been thrown over the bank (Tr. 646). He and the unidentified town employee discussed various options to prevent future undermining of the pavement. Mr. Murray informed the town employee that pile driving to support the roadway would not be an option because of the existence of shallow bedrock at that location. Shortly thereafter, the Town installed a drop inlet which was connected to a drainage pipe leading from the inlet down the western bank of the canal. On September 8, 2003 the witness received notification that another washout had occurred at Canal Street. An "asphalt kick-up gutter" and material used to secure the pipe which led from the drop inlet had washed out along with approximately one foot of pavement (Tr. 654-655). Thereafter concrete blocks were placed on the western bank below the area of the washout as a means to secure the slope below the drop inlet. Mr. Murray stated that he has received no complaints regarding Canal Street since that time (Tr. 663).

Mr. Murray testified that wheel rutting is caused by vehicular traffic and alligator cracking may occur when the asphalt pavement becomes old and brittle. In his opinion, rendered with a reasonable degree of engineering certainty, the alligator cracking on Canal Street was caused not by slope failure but by the aging of the pavement and the effects of vehicular traffic (Tr. 674). He opined that the pavement failure at the dogleg of Canal Street was caused by surface water runoff which undermined the pavement at that location (Tr. 678). The washout that occurred in August 2003 could have been prevented had the Town installed a closed drainage system to control surface water runoff (Tr. 678-679). The washout which occurred in September, 2003, after the drop inlet had been installed, was also due to surface water runoff which overtopped the asphalt berm installed between the drop inlet and the top of the western bank of the canal (Tr. 681). When he viewed the slope after the September incident, he observed a clearly defined channel formed by water flowing over the slope (Tr. 685).

On cross-examination Mr. Murray stated that the old Champlain Canal in this area has not been used for navigation since 1925. It currently functions as a reservoir for the Barge Canal between Locks 2 and 3. Although the Champlain Canal is approximately 60 miles long, the section of the old Champlain Canal used as a reservoir is only approximately 2½ and 3 miles in length. A slope stability analysis was never performed on this slope because it was not needed, according to this witness. Although the western bank of the canal was close to a one-on-one slope (Tr. 696), it was not a steep slope because the bank was a rock slope and not a "soil slope" (Tr. 697). Mr. Murray reiterated that at the location of the washout, erosion was caused by "water running over the edge of pavement and down the slope . . ." (Tr. 704).

Mr. Murray agreed that in 1885 the canal was widened, at least in part, by cutting the rock slope (Tr. 712). While the eastern embankment was manmade, defined by the witness as "a mound of earth built by man", the western bank was a cut rock slope (Tr. 713-714). Thus, whereas the tow path on the eastern side of the canal was inspected every five years, the rock slope on the western side of the canal was not (Tr. 715).

On cross-examination Mr. Murray testified that it was not uncommon for trees to grow initially on an angle toward the sun and then vertically (Tr. 722). He stated that he never observed bowing of the trees caused by movement of the overburden on the western slope.

Finally, Mr. Murray testified that when the drop inlet was first installed the drainage pipe was stabilized by crushed stone. After the second washout occurred in September, concrete blocks were installed to stabilize the road and the repairs that had been made (Tr. 738).

On redirect, Mr. Murray testified that if the pavement on Canal Street failed due to slope instability, there would be a well-defined crack in the pavement, not the alligator cracking that exists currently (Tr. 739-740).

Dianne C. Denniston was the defendants' next witness. Ms. Denniston is a New York State licensed Professional Engineer employed by the New York State Thruway Authority as a Geotechnical Engineer. She has been employed in this capacity for eight years. Prior to her employment with the New York State Thruway Authority she was employed by the New York State Department of Transportation for approximately eleven 11½ years. Her duties as a Geotechnical Engineer include overseeing geotechnical issues for both the Thruway Authority and the Canal Corporation in addition to performing design work on bridge foundations, walls, and other structures. For canal work involving geotechnical work, she acts as project manager as well.

Ms. Denniston testified that in preparation for her testimony in this case, she performed several site visits, walking on Canal Street, Fulton Street, Route 32, the western bank of the canal, the tow path on the eastern bank of the canal, and the immediate vicinity of the dogleg on Canal Street (Tr. 747-748). She examined the 1885 plans for the canal enlargement, various surveys of the area and consulted with a Geologist and a Surveyor. She testified that the western bank of the canal from Fulton Street north to the firehouse is essentially composed of rock. She determined by reference to a geological survey map (Exhibit X) and through consultation with a geologist that the type of rock on the western bank of the canal is greywacky, a mixture of sandstone and hard shale - "almost a slate" (Tr. 753, 757). Through the process of weathering over a period of 10,000 years, a maximum of five feet of material was placed on top of the rock slope.

According to this witness, rock slopes may be cut "almost vertical", depending upon the type of rock (Tr. 760). "[A] one vertical on one horizontal is a relatively flat slope for a rock cut. They can - they can go steeper than that" (Tr. 760). The acceptable inclination for a soil slope is generally one vertical on two horizontal, or flatter depending upon the type of soil (Tr. 760-761). According to the plans for the enlargement of the canal at this location, the canal was going to be widened "a little bit" (Tr. 761). After the rock slope was cut, it would have been a "bare rock face" (Tr. 770). Ms. Denniston also observed the western bank of the canal in the area where Canal Street meets Fulton Street, specifically the area of the brick house where Mr. Bova testified there had been ten feet of erosion since 1902. She physically measured the distance from the foundation of this house to the bank of the canal. While Mr. Bova testified that he measured this distance to be sixteen feet, Ms. Denniston testified she measured the distance to be 24 feet (Tr. 777).

The witness testified at length regarding the photographs she took at the western bank of the canal. She testified that photographs numbered 3, 5, 8, 9 and 20 of Exhibit G reflect the extensive filling and dumping that has occurred at this site (Tr. 778-780). Photographs 14, 16, and 44 of Exhibit G show the rock outcroppings on the slope, some of which are visible at the north end of the bank near the Dziarcak property. She also observed and photographed the sediment fan at the base of the Town's drainage pipe (Tr. 781; Exhibit G-23; G-24).

Ms. Denniston testified that she observed "overburden" on the face of the slope, which she defined to include both organic and inorganic material (Tr. 792). Extremely high fill stores had been placed at the northern end of the slope and she rendered the opinion that "the slope is internally stable with the exception of the fill" (Tr. 793). She testified that the overburden or fill, as she referred to it alternatively, was not stable and could slide down the rock face into the canal and cause a loss of support for the firehouse parking lot at the northern end of Canal Street (Tr. 794).

On cross-examination Ms. Denniston stated that at the time of her first inspection of the area, which was memorialized in her report of April 17, 2006, she performed no soil borings or test pits and had no survey maps or topographical maps in her possession. She was, however, accompanied by a geologist, although no reference to that fact is contained in her report (Tr. 796). Ms. Denniston testified that neither a soil boring nor a test pit could be performed on the slope (Tr. 804, 806). She was also examined with respect to her statement in the report that the trees on the slope do not appear to be leaning. Upon review of a photograph depicting leaning trees on the bank (Exhibit 12), she stated that what she meant was that the trees were not "leaning back". She explained that if there was slope instability "[a] deep seat itself would take the root mass and tilt the tree back" (Tr. 798). She stated that she does not always perform soil borings and that she was able to determine through her observation of the outcroppings of rock throughout the entire western bank of the canal that it was a rock slope (Tr. 800). She reiterated that the slope was internally stable with only superficial shallow movements (Tr. 802). Ms. Denniston disagreed with Mr. Bova's conclusion that the overburden of the western bank is composed of Rhinebeck soil which she described as deep clay soil deposited by water. According to Ms. Denniston, the geologic history of the area proves that such soil was swept away and replaced by other soil (Tr. 810). On redirect, the witness testified that the soil on this slope was shallow based upon the fact that she observed rock both on top of the slope and throughout the face of the slope (Tr. 813).

Mr. Bova testified on rebuttal regarding the process utilized to scale the 1925 map.

With the enactment of Section 120 of the Canal Law[7], the State waived its immunity for tortious conduct arising out of the use or management of its canals provided that an individual or entity would be liable upon the same facts (Naramore v State of New York, 285 NY 80, 84 [1941]; Reed v State of New York, 108 NY 407).[8] Thus, the State intended to assume the same measure of liability in the use and management of its canals as that "incurred by individuals or corporations engaged in similar enterprises, and to afford to parties injured the same redress which they would have against individuals and corporations for similar injuries" (Sipple v State of New York, 99 NY 284, 288 [1885]). The sole inquiry therefore is "whether the facts proved would render an individual liable if established against him" (Reed v State of New York, 108 NY at 411; see also Mohawk Carpet Mills, Inc. v State of New York, 267 App Div 707 [1944], affd 296 NY 609 [1944]). This the claimant failed to do.

With reference to the first cause of action for negligence, claimant failed to establish that the defendants were negligent or that any such negligence was a proximate cause of its damages. First, the Court is unpersuaded that either the 1929 map or the 2006 topographical map actually depict the location of the toe of slope of the western bank. Under the facts and testimony presented, it is as likely the lines to which Mr. Bova measured in an effort to establish erosion represent the waterline and not the toe of the slope of the western bank of the canal. Neither map specifically identifies a line as representing the toe of the slope and Mr. Bova's testimony on this issue was conclusory at best.

Second, the Court is also unpersuaded that the proof submitted at trial supports the central premise advanced by Mr. Bova, and hence the claimant, that erosion at the toe of the slope of the western bank between 1929 and 2006 caused a cascading effect by which the overburden, deprived of support, slid down the western bank of the canal. It is alleged that the consequent loss of support to Canal Street resulted in damage to the roadway which continues and will continue into the future, if not abated.

To demonstrate the occurrence of erosion at the toe of the slope claimant's expert measured like distances from defined points on the 1929 map and the 2006 topographical map. Mr. Bova measured the distances between the eastern blue line and the toe of the slope of the western bank at each of the designated points using the scales for the 1929 and 2006 maps. Any enlargement, over time, of the distance between the eastern blue line and the toe of the slope of the western bank as shown on the 1929 and 2006 maps was said to be evidence of erosion along the western bank of the canal.

Using the same scaling process, Mr. Bova also measured the distance between the eastern and western blue lines which he described as static and unchanging over time. According to claimant's expert the scaled measurements between the eastern and western blue lines on the maps should be identical. As was brought out on cross-examination, however, Mr. Bova's measurements of the distance between the static, unchanging eastern and western blue lines were admittedly inaccurate for four of the seven points selected for comparison. Why these distances, which remained constant between 1929 and 2006, were not identical was never explained at trial.

The mere fact that the blue line to blue line measurements differed when they should have been the same calls into question the entire process by which claimant's expert purported to determine the extent of erosion along the western bank of the canal, i.e., through comparison of the distances between the eastern blue line and the toe of the slope of the western bank as scaled from the 1929 and 2006 maps. Presumably, Mr. Bova used the same data and processes to produce the inaccurate blue line to blue line measurements as he did to produce the eastern blue line to western toe of slope measurements. It must be remembered that these distances were originally identified very precisely by Mr. Bova, in several instances to the hundredth of an inch using, in the case of the 1929 map, a scale in which one inch equals 100 feet. The lack of precision in evidence the expert originally presented in such precise terms, when combined with the unexplained nature of the admitted inaccuracies in the blue line to blue line measurements, renders the proof offered by the claimant in this regard both unreliable and unconvincing.

Defendant's expert surveyor, Mr. McCartney, testified persuasively that using the scale on a map, as the claimant's expert did here, is an imprecise method for determining distance. While the scaling technique utilized by Mr. Bova was arguably necessary in measuring distances relative to the 1929 survey map, it is unclear why no field measurements were taken in preparing the 2006 topographical map. Having decided to map the area in question, the recording of distance measurements as part of the mapping process would seem a simple and utilitarian step. However, instead of recording actual measurements in the field, the topographical map was prepared by Chazen Engineering and submitted to Mr. Bova who then added "[t]he annotations with numbering and dimensioning" (Tr. 107). Reliance upon the scaling technique to determine the distance between points on the 2006 topographical map is inherently less reliable than distances determined in the field. Why the relevant measurements were not recorded as part of preparing the 2006 map was also not explained at trial.

In addition to the above, although Mr. Bova explained that movement of water was a catalyst for the erosion occurring at the toe of the western slope, he never measured the speed of the water in the canal. Nor can claimant's expert's conclusion that erosion was occurring on the western bank be supported by reference to the present distance from the house foundation near Fulton Street to the top of the western bank as compared to the distance scaled from the 1902 map. While Mr. Bova testified that there had been ten feet of erosion at this location, he failed to record the present distance from the foundation to the bank in his field notes. Ms. Denniston, on the other hand, testified that the distance is 24 feet, which the Court finds more compatible with the distance reflected in the photograph received as defendants' Exhibit G-1. Furthermore, the expert's contention that the one-on-one slope of the western bank was too steep given the composition of the overburden present was unsupported by testimony regarding the standards in effect in 1885, the time the canal was widened. Ms. Denniston, a Geotechnologist, testified in this regard that the slope was comprised of rock and that after it was cut for the canal enlargement, it was a "bare rock face" (Tr. 770). It was her opinion that a rock slope can be much steeper than the one-on-one slope found on the western bank of the canal. In any event, the Court finds that claimant failed to establish, in the absence of credible proof of erosion at the toe of the slope, that the one-on-one slope configuration was a proximate cause of any damages sustained by the claimant.

The Court credits defendants' experts' explanation for how and why the pavement on Canal Street was washed out. Ms. Denniston explained that extremely large amounts of fill had been added to the northern section of the western bank. It was the absence of drainage structures on Canal Street combined with the natural topography of the area which caused surface water to flow to the low point of Canal Street and overflow the bank of the canal, according to both Ms. Denniston and Mr. Murray. In fact, Mr. Murray testified that following the September 2003 washout of Canal Street, he observed a clearly defined channel created from water flowing over the slope. Although the September 2003 washout of Canal Street occurred after the drop inlet on Canal Street was installed, claimant's expert's opinion that the drop inlet was more than sufficient to withstand a 100-year storm event was undermined on cross-examination by reference to the fact that in reaching this conclusion he relied on defendants' expert's report regarding the rate of water flow onto Route 32, not Canal Street where the drop inlet was located. Additionally it appears that the drainage pipe to the drop inlet which was installed by the claimant was improperly supported, a fact which has since been remedied by the installation of cement blocks. While, Mr. Bova testified that the presence of alligator cracking on the surface of Canal Street indicates a loss of lateral support for the roadway, his opinion is less than persuasive on this point in that he failed to determine the composition of the roadbed underlying Canal Street, the thickness of the pavement or the date Canal Street had last been paved prior to 2003.

Based on the foregoing the Court finds claimant failed to establish by a preponderance of the credible evidence that the defendants were negligent in the ownership or operation of the canal or that any such negligence was a proximate cause of its damages.

As the result of this determination, claimant’s remaining causes of action must fail. Claimant's second cause of action for loss of lateral support is based on the common-law doctrine that generally requires an adjacent landowner to preserve the lateral support of the adjoining property (New York Steam Co. v Foundation Co., 195 NY 43 [1909]; Radcliff’s Ex’rs v Mayor of City of Brooklyn, 4 NY 195 [1850]).[9] As set forth above, claimant failed to establish that the loss of lateral support to Canal Street was proximately caused by defendants’ negligence in the ownership or operation of the canal.

Claimants third and fourth causes of action for nuisance and trespass must fail for the same reason. A claim for nuisance requires an interference with the right to use and enjoy property (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564 [1977]; Chenango, Inc. v County of Chenango, 256 AD2d 793 [1998]). Likewise, a trespass is defined as "the invasion of a person's interest in the exclusive possession of land" (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see also Congregation B'nai Jehuda v Hiyee Realty Corp,, 35 AD3d 311 [2006]). Claimant failed to establish any act by the defendants which interfered with the right to use and enjoy its property or otherwise constituted an intrusion upon its interest in exclusive possession. Lastly, claimant’s fifth cause of action for breach of the public trust must fail as the claimant failed to establish that the defendants caused an interference with any public right (Matter of Town of Coeymans v City of Albany, 284 AD2d 830 [2001]; Town of Riverhead v Long Is. Light. Co., 258 AD2d 643 [1999]).

Based on the foregoing, the Court concludes that the claimant failed to prove its case by a preponderance of the credible evidence. Accordingly, the claim is dismissed.

Let judgment be entered accordingly.



November 10, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]. Numbers preceded by the letters Tr. refer to the page numbers of the trial transcript.
[2]. Although the year 1929 is handwritten on the map (see Exhibit 13-A), it appears it was created in 1925 and was referred to by some of the defendants' witnesses as the 1925 map.
[3]. Although it appears this map was created in 1925, the witness referred to it as the 1929 map throughout his testimony.
[4]. It appears that the allegation in the claim that the defendants failed to adequately control storm water runoff from State Route 32 has been abandoned (claim, ¶ 9).
[5]. To facilitate easy comparison, the parenthetical references at the various designated points on Exhibit 13-B refer to the distances between the blue lines on the 1929 map. The numbers above those in parentheses reflect the distances between blue lines on the 2006 topographical map.
[6].Also referred to as .14 and .16 at trial.
[7]. Section 120 of the Canal Law states in pertinent part the following: “There shall be allowed and paid to every person sustaining damages from the canals or from their use or management, or resulting or arising from the neglect or conduct of any officer of the state or the corporation having charge thereof, or resulting or arising from any accident, or other matter or thing connected with the canals, the amount of such damages to be ascertained and determined by the proper action or proceedings before the court of claims, but no judgment shall be awarded by such court for such damages in any case unless the facts provided therein make out a case which would create a legal liability against the state or the corporation, were the same established in evidence in a court of justice against an individual or corporation . . .”
[8]. The Court of Appeals also held in Naramore, supra, that the provision for the State’s waiver of immunity contained in section 8 of the Court of Claims Act (formerly section 12-a of the Court of Claims Act) was consistent with section 120 of the Canal Law, which was enacted under the laws of 1870, chapter 321, section 1.
[9]. Exempt from this requirement are municipalities in the construction or maintenance of highways who do so in a non-negligent manner (see Colgan v Town of Hillsdale, 68 NY2d 788 [1986]; Radcliff’s Ex’rs v Mayor of City of Brooklyn, 4 NY 195 [1850], supra).