103 Misc. 217 | New York Court of Claims | 1918
At all the times herein mentioned the claimant was the owner of a farm of fifty-five and thirteen one-hundredths acres of land in the town of Vienna, Oneida county, the southerly boundary thereof being the center line of a stream of water known as Wood creek. This farm, prior to the acts of the state, was utilized as a dairy farm, a portion of it being used for pasture, and practically all the remainder of it being devoted to the raising of hay. About forty-five acres of the farm were overflowed each year prior to 1910 by the rising of the waters of Wood creek. It is asserted by the claimant that this resulted in making the farm a natural hay farm, producing annually prolific crops of hay without the necessity of seeding. We are not convinced of' this, but do find that the natural overflow of this land was of some fertilizing value. Some years prior to 1910 the city of Rome had so constructed its sewerage system as to discharge the
The claim purports to be “ for the permanent appropriation of the waters of Wood creek,” and is formulated somewhat on the theory of an appropriation case. The state, however, filed no appropriation map covering the lands of the claimant, or any part of the stream adjacent to the claimant’s premises, nor did it take any of the statutory proceedings prescribed for the
However, the notice of intention required by statute was not filed until the 28th day of April, 1916. The claim'was filed May 2, 1916. The diversion was continuous, and so was the damage resulting from it. The claim is not barred by the lapse of time. Knox v. Metropolitan El. R. Co., 58 Hun, 517; affd., 128 N. Y. 625; Folts v. State, 118 id. 406; Wright v. Syracuse, B. & N. Y. R. Co., 49 Hun, 445; affd., 124 N. Y. 668.
But recovery is limited to the damages which accrued from six months prior to the filing of the notice of intention and up to the time of the filing of the claim. Code Civ. Pro. § 264, and cases cited supra. We find that amount to be fifty-eight dollars and seventy-five cents, for which an award will be made.
Ackerson, P. J., concurs.
Claim awarded.