199 N.Y. 213 | NY | 1910
On the 31st day of May, 1903, the plaintiff, George Burke Ely, filed a claim against the state for damages alleged to have been sustained by him during the years 1901 and 1902, by reason of flash boards placed upon the dam across the Oswego river at Phœnix, N.Y., by order of the commissioner of public works, thereby causing the water of that river and that of the Oneida river to overflow the lands of the plaintiff located on Oneida river at what is known as Big Bend, thus destroying his crops and meadows. It appears from the findings of the Court of Claims that the Oneida river and the Oswego river are used as a part of the canal system of the state; the Oneida river flowing into the Oswego river at a point above Phœnix, at which place there was a dam across the Oswego river prior to 1864. In that year the legislature passed an act, known as chapter 475, by which the canal commissioners were authorized at the earliest practicable time, to rebuild the dam at Phœnix at a sufficient height to maintain seven feet of water in the prism of the *216 canal on the levels above the dam, and to construct the same of stone, in such manner as the canal commissioners may determine to be the most practical to render such structure permanent. The canal commissioners, pursuant to this statute, did construct a dam six feet three inches in height, intending thereby to secure the necessary depth of water by the erection of flash boards on the top of the dam, and for that purpose holes were drilled in the stone coping for the placing of iron pins therein to hold the flash boards, the design being not to raise the water any higher than was necessary for canal navigation. The flash boards were to be used temporarily, and were so placed on the dam back of the iron pins that the high water during freshets would carry them off, thus avoiding the raising of the water higher than was necessary for the purpose intended, and avoiding the unnecessary flooding of lands during the high-water seasons of the year. It was further found, as a fact, that every year since the construction of the dam in 1864 flash boards have been placed thereon each year as the low-water period occurred, and after the low-water period had passed they were carried off by the elements and natural forces; that there had been an open, notorious and continuous user of the flash boards for twenty years or more prior to the presentation of the plaintiff's claim, and that such boards were necessary to the operation of the canal and have been used since the reconstruction of the dam, pursuant to the statute of 1864. And as conclusions of law the court found that the state acquired the right under the statute to flood plaintiffs lands to the extent of the flash boards placed upon the dam, and that the state had acquired the prescriptive right to so flood claimant's lands, and, therefore, dismissed his claim for damages.
The Court of Claims in its opinion states that the one-year Statute of Limitations contained in the Revised Statutes of 1828, as amended by chapter 836 of the Laws of 1866 (1 R.S. [6th ed.] pages 659, 660, sections 92 and 98), had run and became a bar to the plaintiff's claim. Section 92, so far as material, provides, in substance, that every person who has *217 suffered damages by the appropriation of his lands, etc., if he intends to claim such damages, "shall within one year after such premises, lands or waters have been taken permanently, appropriated or temporarily occupied, and within one year after jurisdiction shall be conferred upon the canal appraisers by the legislature to hear such other injury, file in the office of the canal appraisers a detailed statement of his claim in writing, signed by himself," etc. Section 98 provides, "No claim for damages, for premises that shall have been appropriated to the use of a canal, at any time before this chapter shall be in force, shall be received by the appraisers, unless it shall be exhibited within one year after this chapter shall become a law; and the premises so appropriated shall be deemed the property of the state; and no claims, other than those so exhibited, shall be paid without the special direction of the legislature." The difficulty, however, with this contention is that the Court of Claims has failed to find any facts or conclusions of law upon which it can be determined whether or not the statute had run and become a bar to the plaintiff's claim. Some of the damages alleged were claimed to have resulted from the fixing of the flash boards upon the dam in September, 1902. As to these damages, they occurred within the year of the filing of the claim. The question, therefore, for us to determine arises with reference to the finding that the state had acquired a prescriptive right to use the flash boards upon the dam, and to flood such low lands as may be covered by water by reason of such boards.
In the case of Hammond v. Zehner (
In the case of Marcly v. Shults (
In the case of Eckerson v. Crippen (
In the case of Hall v. Augsbury (
In the case of Carlisle v. Cooper (
In Gould on Waters, at section 334, it is said with reference *220
to prescriptive right that "In order to establish the presumption of a right or easement in the lands or waters of another person, the enjoyment must have been uninterrupted, adverse, and under a claim of right, and with the knowledge of the owner, whose knowledge binds his grantee. It must have been inconsistent with or contrary to the interests of the owner, and of such a nature that it is difficult or impossible to account for it except upon the presumption of a grant from him." Again, at section 337, he says: "The user to be adverse must be attended by such circumstances of notoriety that the person against whom the right is exercised may have reasonable notice that the right is claimed against him, and be enabled to resist its acquisition by suit at any time before the period of prescription has elapsed. Thus, the occasional use of flash boards for brief periods, when little or no injury may be done, does not amount to that open and uninterrupted use which is required. Such boards may be used so continuously as to make them a part of the permanent structure, and by such user a right to flow to the height of such boards may be acquired; but their use only during times of low water, though for more than twenty years, does not justify keeping the water to the height of such boards during the whole year. It is a question of fact for the jury whether such user has established the right." (See, also, Hall v. State of N.Y.,
While much has been written upon this subject, the authorities to which we have above referred fairly cover the contention of the parties in this case and, we think, determine their respective rights. The legislature of the state in 1864 authorized the construction of the dam of sufficient height to produce seven feet of water in the prism of the canal. No contention is made that the authorities of the state have created a greater depth of water in the canal than that required by the act. The dam constructed under the provisions of the act was an appropriation of all of the lands abutting upon the stream which would be overflowed in consequence *221
thereof. It was a permanent appropriation, and the owners thereof, under the statute, had the right to apply to the state for the damages which they suffered by reason thereof within the time limited by the statute. (Heacock Berry v. State ofN Y,
The judgment should, therefore, be affirmed, with costs.
CULLEN, Ch. J., VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; GRAY, J., absent.
Judgment affirmed. *222