195 Misc. 484 | New York Court of Claims | 1949
The claimants Black seek to recover from the State of New York the sum of $228.80, and the claimant Harvey seeks to recover the sum of $160.50, the amounts of damages respectively sustained when their camp properties at Polar Beach were flooded by waters of Oneida Lake in the months of April to June, 1947. The injury was caused by Caughdenoy Dam. The State of New York has responded in damages many times to many owners of property bordering on the lake for the negligent construction and maintenance of this dam. Its liability has been established. We need cite only Haskell v. State of New
Upon the foregoing statement it might appear that further discussion is unnecessary. However, the Attorney-General has interposed the defense that the State of New York has acquired by prescription the right to flood the lands of these claimants. This defense was not pleaded, the Attorney-General relying on rule 13 of the Rules of the Court of Claims which provides that ‘ ‘ The state is not required to answer a claim and all allegations in the claim are treated as denied.” (Bender’s Ct. Rules [1st ed.], p. 214.) Upon the trial claimant’s counsel first took the position that the proposed defense being an affirmative one, the defendant could not avail itself thereof unless it was pleaded. Later, however, counsel withdrew his objection and we are saved the question so far as this case is concerned.
Except for a claim- filed by Mr. and Mrs. Black on September 15,1945, to which we shall hereinafter refer, no previous claims to recover damages for the flooding of their lands were ever filed by these claimants or by any of their predecessors in title. Caughdenoy Dam was built in 1909 for the design and purpose of holding water levels of Oneida Lake to a minimum elevation of 370 Barge Canal datum, a level necessary for maintaining a navigable depth of twelve feet of water. In 1914, a flood gate was installed in the dam and in 1935 a guard gate was placed near Lock 23. These structural changes were discussed in the Haskell opinion (supra). The dates are important because, as we understand his position, the Attorney-General asserts that the twenty years which elapsed between them, during all of which Oneida Lake was regularly used by the State of New York in each navigation season, satisfy the time element for acquiring prescriptive right.
These claimants are entitled to recover upon their respective claims. Separate awards are directed in the amounts above stated. To each award is added interest from the date of the filing of the claim. (Wilson v. City of Troy, 135 N. Y. 96; Lakeside Paper Co. v. State of New York, 55 App. Div. 208; People’s Gas & Elec. Co. of Oswego v. State of New York, 105 Misc. 231; Di Laura v. State of New York, Claim Nos. 25504, 25562, 25622.)
Decisions accordingly.
Fifteen years may be sufficient. See Civ. Prac. Act, §§ 34-47, as amd. by L. 1932, chs. 261-264; Klin Co. v. New York R. T. Corp., 271 N. Y. 376; Felberose Holding Corp. v. New York R. T. Corp., 244 App. Div. 427.