Denton v. State

76 N.Y.S. 167 | N.Y. App. Div. | 1902

Smith, J.:

The claimants ask for damages claimed to have been caused by reason of the State’s interference with the navigability of Black river. The claimants are mill owners and own forest property by the stream. Their claims are based, not upon an invasion of their, riparian rights, but upon an invasion of their rights to this stream as a public highway. The claimed interference is by the construction of a reservoir dam (under Laws of 1883, chap. 452). Formerly at Forestport, on said river, a dam had been constructed, and by said dam the claimants’ mills are located. ■ This reservoir dam was constructed up the stream about one and one-half miles, and interfered with the floating of logs to their mills, by reason of which interference this damage is claimed to have been sustained.

By chapter 157 of the Laws of 1836 the Canal Commissioners were required to construct a navigable canal from Black river to the Erie canal at Rome, and also a navigable feeder from Black river to the summit level near the' village of Boonville. It was required that the feeder and canal should be so constructed as to pass “as large a quantity of water to the Erie canal as can reasonably be spared from the Black river and from the northerly portion of the Black river canal.” Thereafter, in 1847, 1848, 1849 and 1850 divers acts were passed granting further appropriations for the construction of said canal and said feeder. By chapter 181 of the Laws of 1851 the State proposed to appropriate the water of the lakes from which the Black river flows, as also the headwaters of Moose and Beaver rivers, and it appears from the evidence that they subsequently built reservoirs at the head of Black, Moose and Beaver rivers. By chapter 452 of tlie Laws of 1853 the Black river from the junction with Moose river to the Moose river tract in Herkimer county was declared a public highway for the purpose of floating logs and lumber down the same. Within these bounds the reservoir in question is located. . By that act it was further provided that on that part of said river “no dam shall be hereafter erected without an apron or shute at least twenty feet in width, in the current of the river, of a proper slope for the passage of logs and lumber.” In' that act was appropriated the sum of $5,000 for the purpose of improving Black river within said territory. It was' directed that such money should be expended in clearing out rocks, stones and other obstructions and for the construction of piers, booms and dams, as might be necessary for the safe passage of logs and lumber down the said river. By chapter 245 of the Laws of 1857 it was provided! that within one year of the passage of the act it should be lawful for the owners and lessees of land and water rights upon the Black river to present their claims for damages on account of the taking of the waters of said river for the use of the “ Black river canal and Erie canal feeder,” the same as if they had been presented within the time prescribed by law. By chapter 344 of the Laws of 1861^* further indulgence was given to certain persons therein specified who' might claim that their land had been injured, and a further opportunity to present their claims for audit. By chapter 452 of the Laws of 1883 the Superintendent of Public Works was directed to construct the reservoir in question in Black river above Forestport pond, for the purpose of storing water for canal purposes. Thereafter, in 1889, 1891, 1892, 1893 and 1894, further appropriations were made' for the purpose of finishing the said reservoir, and for cleaning the flow ground covered by the reservoir. In 1894 this reservoir dam was completed. A chute twenty feet in width was placed therein, but not in the current of the stream. The claimants contend that by the erection of this reservoir dam the navigability of the stream has been illegally impeded.

Before discussing the effect of these several statutes and the rights of the claimants- thereunder, it may be well to have in mind one or two principles of construction in the light of which these statutes must be read. In Black on Interpretation of Laws (at p. 62)' a rule of construction is thus stated: “Every statute is understood to contain by implication, if not by its express terms, all such provisions as may be necessary to effectuate its object and purpose, or to make effective the rights, powers, privileges or jurisdiction which it grants, and also all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.” In the same authority (at p. 119) another rule is thus stated: “ General words in a statute do not include nor bind the government by whose authority the statute was enacted, where its sovereignty, rights, prerogatives or interests are involved. It is bound only by being expressly named or by necessary implication from the terms and purpose of the act.” The writer further says: “ This is a very ancient rule of the English law and is equally applicable to the Ffational and State governments in this country. It is said that laws are supposed to be made for the subjects or citizens of the State, not for the sovereign power. Hence if the government is not expressly referred to in a given statute, it is presumed that it was not intended to be affected thereby, and this presumption in any case where the rights or interests of the State would be involved can be overcome only by clear and irresistible implications from the .statute itself. Generally speaking, therefore, the State is not bound by the provisions of any statute, however generally it may be expressed, by which its sovereignty would be derogated from, or any of its prerogatives, rights, titles or interests would be divested, save' where the act is specifically made to extend to the State, or where the legislative intention in that regard is too plain to be mistaken.” Within these rules of interpretation it would seem that the appropriation in 1836 of so much of the waters of Black river as might be spared, gave the implied right to erect such structures as might be necessary for the purpose of divesting the water so appropriated to the purposes for which they were appropriated. Such a right is indispensable to the enjoyment of the rights therein expressly granted. Under the act of 1836 the State dam was erected at Forestport for this purpose. Later it became necessary, for the further utilization of this right acquired by the State, to erect another dam, which is called the reservoir, between one and two miles above the old State dam. The right to erect this reservoir seems, therefore, to be clearly within the implied power given in the act of 1836, as necessarily incidental to the power to take from the Black river so much of the waters as could be spared for the use of the Black river canal and the Erie canal feeder. That this was intended as a permanent appropriation was held in People v. Schoonmaker (13 N. Y. 247). But claimants base their rights upon the act of 1853, which makes this river a navigable stream. That it was not intended by this act to surrender any of the rights of the State is clearly indicated by the subsequent legislation, heretofore recited. Two years after this act was passed the decision in the case of People v. Schoonmaker (supra) was made, decláring that appropriation to have been a permanent one. Within the rule of interpretation heretofore cited the State is not presumed, without express words, to have surrendered any of its rights or interests. Any rights given to the public by the act of 1853 must, therefore, be presumed to have been subordinate to the rights of the State acquired by the act of 1836, and such rights as are reasonably incidental to the powers thereby given, including the power to erect such structures therein as were necessary to make effective such grant.

The appellants further contend upon this appeal that, even if the right be found to build a reservoir, that right should have been so exercised as not unnecessarily to impair the right of the highway given by the act of 1853 ; that that act required all dams to be constructed with a chute in the current of the stream to facilitate the passage of logs; that the reservoir dam constructed not only had no chute in the current of the stream, but that the chute constructed at one thereof was unnecessarily inadequate for the passage of logs. I am satisfied that the State is not in any way bound by the provisions of the act of 1853. The State is not expressly named in the act, and, within the rule of interpretation above cited, the limitation is one for the citizen or subject and not for the sovereign. If we assume, however, that the State was bound to build the reservoir so as not unnecessarily to impede navigation, it can hardly be contended that for a breach of that obligation a case has been made against the State. There is some evidence to the effect that this chute is better located where in fact it was located than it would be in the current of the stream. There is also evidence from which the court could have found that with small expense booms could be so constructed as to guide the logs to the chute as located. From the evidence it appears that after the construction of the reservoir the water was backed up for a number of miles forming a pond, in which there was substantially no current in any place. All facts necessary to sustain this judgment are presumed to have been found by the court below. But what would seem to be a decisive answer to claimants’ contention is the fact that the record is barren of any evidence from which the claimants’ damage could be estimated upon any such theory of the case. The measure of damage to which the claimants’ witnesses testify was the difference in expense in getting the logs to the mill before the building of the reservoir and after. In just what respects the witnesses deem the task the more difficult with the reservoir is not fully disclosed. The backing up of the water forming the pond and the extended flow ground necessarily resulting, in which were located the stumps of trees and other obstructions, rendering more difficult the propelling of the timber, seem to have entered into this estimate. If, then, the reservoir were lawfully constructed, and the only fault of the State, for which liability can attach, be in the location and construction of this chute, there is no evidence in the case as to the extent to which such fault has impeded navigation, or from which the court could estimate the damage which these parties have suffered therefrom. We find no-reason, therefore, to disturb the judgment directed by the Court of Claims.

Fursman, J., concurred in result.

Judgment unanimously affirmed, with costs.

* Bound as the first law in the Laws of 1862.— [Rep.