121 N.Y.S. 536 | New York Court of Claims | 1909
This is a proceeding taken by the State pursuant to chapter 147 of the Laws of 1903 and its amendments, commonly referred to as the Barge Canal Act, to • acquire certain land and water which the claimants allege they own. The act was approved by the people at the general election held in the year 1903, and outlines the general course of the improved canals of the State and the means for acquiring the rights of way and supply of water necessary therefor.
In the acquisition of land or water under the statute the State takes possession of such property rights as it desires, files a map thereof and serves a copy upon the owner; and, if no agreement for compensation can be made under the act and pursuant to chapter 195 of the Laws of 1908, known as the State Appraiser’s Act, this court is given jurisdiction of the claim.
In pursuance of this authority, the State took possession of the land and water alleged to be owned by the claimants at the existing dam in the Oswego river at the city of Fulton, known as State dam Ho. 4, filed the required maps and served upon one of the claimants, the Fulton Light, Heat and Power Company, on August 6, 1906, and October 2, 1906, copies of the maps which had been filed.
There are three pieces of property involved in the claim, to each of which it is alleged there are attached certain riparian rights. The most southerly of these properties is situated at the easterly end of the dam and on the pier which forms an easterly extension of the dam and is the so-called power plant station, the notice of appropriation of which was served, as stated, October 2, 1906, and, beside describing specifically by metes and bounds the land actually appropriated, contains the words, “ also all the right, title and interest of the said reputed owners in the land in the bed of the river on the area above described and also all of their right, title and interest as riparian owners.” The next piece of property, proceeding northerly, and which is situated on what is known as the hydraulic canal connected with the slack water created by the dam, is the Kenyon mills property, the notice for the appropriation of which was
The claimants are before this court claiming compensation for the land and water described in the notices of appropriation; and the State disputes their claim upon the ground that the claimants have no interest to condemn, notwithstanding the service of the notices, because among other reasons the land described in the notices is in the natural bed of the Oswego river, title to which was never acquired by grant, deed or otherwise by the claimants, because the Oswego river at the point in question is a stream navigable in fact, and because the work constitutes an improvement of the navigability of the stream and the State can interfere with the land and water occupied and used by the claimants without making compensation to them under its power to improve navigation.
The property, as stated,, is situated on the easterly, side of the Oswego river, which is fed by the waters of a series of lakes in the central part of the State, and flows into Lake Ontario. It has a large watershed and is of very uniform flow. From Lake Ontario it was navigable in fact in its natural state from the lake for some distance to a rapid above which the stream was again navigable.
The non-navigable part of the river upon which claimants’ property is situated, between the two navigable reaches, seems never to have been capable of navigation. There is no evidence that any boats or even logs were floated down the river in its natural state; but, on the contrary, it appears that at the Oswego falls, which was the name given to the falls south of the claimants^ property, there existed a portage around the falls and the State itself did not attempt in the past to use this part of the river for the old
Prior to any interference with the river hy the State and on May 10, 1793, the State executed a grant to Philip Stene of 200 acres of land bordering upon this unnavigable portion of the Oswego river, by a description which began “ at a white ash sapling marked on the southerly side W.H. and on the northerly side O.S. standing on the east shore of said Oswego river, and running thence east forty-four chains, then north forty-five chains, then west forty-eight chains to the said river, and then up along the same to the place of beginning.” Under this description, which embraced the land of the claimants herein, and following the decisions of the courts, this court held by a previous decision in this claim (62 Misc. Rep. 189) that the title extended to the center of the river.
Long before the State began the construction of the first Oswego canal in 1824, there existed at the present location of the State dam Fo. 4 at Fulton a promontory or tongue of land, extending somewhat into the river from the east bank, upon which a sawmill had been erected as early as the year 1818 and from which promontory, to supply water to the mill, a wing dam had been built into the river nearly to its center. In this condition of things the State found the river when it constructed the first Oswego canal, and beside the sawmill and wing dam the State found, when it began the construction of the canal, an old wooden flume, twelve or fifteen feet wide and two hundred feet long, extending north along the bank of the river and connecting with the head of water created by the wing dam.
The State authorities at that time evidently thought that the project of the construction of the canal would so appeal to the citizens of the State that grants of the necessary rights of way and water privileges would readily be acquired by gift; so the statute of 1816 (chap. 237) provided for the acquirement of such rights by grant and donation. This procedure, however, having been found insufficient, the
The State, however, did not arrive at the actual construction of the canal until about the year 1824; and, during that year and succeeding years, the work was prosecuted to completion. The length of the canal was twenty-three and one-half miles and extended from Three Rivers Point to Lake Ontario, a distance by a straight line of about thirteen miles. It utilized ten and a half miles of the navigable portions of the Oswego river for its purposes; and, where the stream was such that it could not be navigated, the State erected dams and ran its canal around these portions. Thus there were constructed seven- dams, with the distances between them as follows: Three Rivers to Phoenix, two and five-tenths miles; Phoenix to Upper Fulton, nine miles; Upper Fulton to Lower Fulton, three-fourths mile; Lower Ful'ton to Battle Island, two and three-fourths miles; Battle Island to Minnetto, three miles; Minnetto to High Dam, two and one-fourth miles; High Dam to Curve Dam at Oswego, two and one-fourth miles; Curve Dam to Lake Ontario, one and one-fourth miles. The length of the river channel used for the old Oswego canal was ten and five-tenths miles, and for the improved canal about twenty miles will be used. One of these dams, known as dam Ho. 4 at Fulton, was built opposite the property in question. This dam was about twelve feet high, extended across the river and was connected at its easterly end with the high bank by means of a pier somewhat higher than the dam itself. In order to accomplish the construction of this dam and the connecting pier, it was necessary to take possession of land owned by claimants’ predecessors in the bed of the river and upon the east bank of the river, upon which land the dam and pier were constructed. This dam and pier set back the water in the river at this point and created a pond
At the time of the construction of this and other dams, the State evidently considered that it was the OAvner of the surplus water created by the erection of the dams; and, in pursuance of this conception of its rights, it sought to lease the additional poAver created at the various dams. In August, 1826, the acting commissioner on the Oswego canal sold at public auction surplus Avater in the OsAvego canal at the east end of dam Yo. 4; but, on account of claims to the water by Yorman Hubbard, the then owner of mills at the dam, no certificate of sale was given, and the sale was relinquished, and the payment of the note given was never made or enforced. In the following December of the same year, in pursuance of chapter 112 of the LaAvs of 1823, the owners of water power at the dam executed a bond to the State to keep in repair the flume above referred to. Other disputes arose in connection Avith the attempts of the State to lease water power, and its right to do so came before the
The State continued to operate the canal as constructed at the premises in question until 1843, when some changes were made. The flume or, as it will now be called, the hydraulic canal, was widened, a new westerly wall was constructed of masonry, and the headgates were set back about twenty-five feet. There was also constructed a guard lock in the canal, opening into the pond created by the dam. The purpose of this improvement, part of the expense of which was paid by the State and part by the citizens of Fulton, seems to have been to allow boats to pass from the canal into the pond and then into the hydraulic canal, thus securing access to the parcels of land concerned in this claim.
No further changes in the canal were made by the State affecting the claimants’ premises, until the improvement of 1857, whereby the canal was widened and deepened and its level along the river south of the State dam at Fulton was raised three feet. In place of the wooden boom that separated the old channel from the channel of the river an embankment was constructed.
Differences having arisen between the water right owners on the hydraulic canal, an action was brought in 1889 in the Supreme Court to determine the respective proportions
From the time of the construction of the original Oswego canal down to the tine of the appropriation for the barge canal, the claimants have continued to occupy the land and use the water not needed hy the State without any interference, except that on occasions the mill owners were required to shut down their mills in ordeLto provide a sufficient depth of water in the pond hack of the dam to enable boats to cross the pond. The claimants continued to use the water of the river without question, except as stated, through the openings for the mill and flume provided when the original canal was built, except that some time thereafter another opening was made hy the State in the pier so that, at the time of the present appropriation, the claimants had two openings in the pier, sach separated by dividing
The barge canal follows substantially the line of the old canal. It will have the same number of dams as the old canal, but their location will be somewhat changed. The barge canal occupies twenty miles of the river channel, and three- and a half miles are taken up' with canal channels around the dams. The total length of the canal will be twenty-three and a half miles from Three Rivers Point to Lake Ontario.
Upon this state of facts, questions arise as to whether or not the claimants have any property subject to appropriation for which they are entitled to compensation and, if so, the extent of these rights and, finally, the- compensation to which they are entitled therefor.
In ascertaining the property rights owned by the claimants, it is necessary to bear in mind'the sources of the titles to the land and water of the State, for these titles have not all had .the same origin, nor are they all to be determined by the same principles of law. The original inhabitants of the territory now comprising the State were not regarded by European nations as having any title to the land and water which they possessed, but were considered merely as occupants thereof; and, when these nations journeyed here, they claimed title to the land and water by virtue of the right of discovery. They then held the land and water according to the law which prevailed in the mother country; and,. as this law differed in various nations, there are some differences in the extent of ownership covered by the grants and conveyances. By the law of the Netherlands, a conveyance upon a fresh water stream did not carry with it title to the center of the stream, and so we find the State claiming title to the bed and water of the Mohawk river; whereas, by the common law. of England, such a conveyance
The new State Constitution provided that nothing contained in it should be construed to affect any grants of land within the State made by the authority of the King or his predecessors (State Constitution, 1777, art. 36); and, at the same time, the Constitution made applicable to the new State such parts of the statute law of England and Great Britain and of the common law of England as formed the law of the colony on April 19, 1775, subject to such alterations and provisions as the Legislature might from time to time make. State Const., 1777, art. 35. Until modified, therefore, by statute or by the common law of this State, the title to all land and water conveyed by the State government after the Revolution was construed according to the rules of law governing the State at the time. The statute law of England and Great Britain ceased to have any force after May 1, 1788 (General Construction Law, § 70) ; but the common law continued with diminishing force as the body of the common law of this country expanded. At the time of the grant to Stene, in 1793, however, the common law of England was in full force and was applicable to the
By a former decision this court held that the language of the Stene patent above quoted carried the title to the center of the river, and ample authority is cited in the opinion heretofore rendered (62 Misc. Rep. 189) sustaining that view of the interpretation to be given to the grant. It is not for this court to disregard the decisions of the courts in the interpretation of the Stene patent, or to adopt any new theory of riparian rights, in order to enable the State to acquire a water supply for the new barge canal without compensation and in derogation of the rights of property heretofore recognized, but rather to adhere to the principles of law applicable to the facts of this case as laid down by the authorities. Lewis in his work on Eminent Domain says, of the decisions in New York on riparian rights, that “ the common law doctrine may he said to prevail, except as to the Mohawk and Hudson ” (§ 72). Gould, in his work on Waters, referring to the New York decisions on riparian rights, says: “ The later decisions follow the common law rule, which has been held applicable to the Hudson, the Oswego and the Genesee rivers” (§ 57). Gould on Waters says: “ If the intention to limit the title to the bank does not appear from other terms in the instrument, a description of a riparian estate, by which a line runs to a monument on the bank, and thence, ‘ by,’ ‘ with,’ ‘ along,’ or ‘ on,’ the river, carried title to the thread of the stream, and thence follows the meanders thereof, the monument merely determining the direction of the line towards the river ” (§ 197). In People v. Platt the head-note says: “By the patent granted to Zephaniah Platt in 1784, of a tract of land bounded east on Lake Champlain, and extending west, on
The common law of England which was generally applicable in 1793 was not strictly adhered to later on; and it was soon strongly contended that it had no application to the conditions which prevailed in the new State, where there were large inland fresh water streams and bodies of water in which the tide did not ebb and flow and with reference to which it did not seem reasonable to hold that the owners of the land upon the shores owned of right title to the center of the stream or body of water. People v. Canal Appraisers, 33 N. Y. 461.
The foregoing authorities with those cited in the former opinion of this court and the long continued adverse posses
There have gradually grown up under the decisions of the courts four classes of ownership with respect to streams and bodies of water within the State.
The first class relates to those streams and bodies of water which are absolutely owned by the State as public property, of which it has the absolute disposition, both as to the land and as to the water itself. An illustration of this class of ownership is represented by certain titles along the Mohawk river, in litigation concerning which it has been held that the owners acquired no rights in the streams at all and that, so far as they are concerned, the bed of the stream and its waters belonged to the State and were subject to its absolute disposition. To what extent these cases apply to other conveyances along the stream has not been determined. Canal Appraisers v. People, 17 Wend. 571; People v. Canal Appraisers,33 N. Y. 461; People v. Page, 39 App. Div. 110.
i A second class is that in which the State owns the bed of the stream and a public easement in its waters. Illustrations of this qualified ownership are found in the case I of the Hudson river, where the tide ebbs and flows, and ' titles along the shore of which have been held to be governed by the common-law rule that they extend only to high water mark, in the absence of an express conveyance of the bed by the legal owner of the bed. Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423 ; Langdon v. Mayor, 133 id. 628; Sage v. Mayor, 154 id. 61; Knickerbocker Ice Co. v. Shultz, 116 id. 382; People ex rel. Howell v. Jessup,160 id. 249; Smith v. Bartlett, 180 id. 360; Town of Brookhaven v. Smith, 188 id. 74. In this class must also be placed those streams and bodies of water, non-tidal in , character, which form a boundary between this State and
A third class is that where the upland owner has the title to the bed of the stream and the public have an easement in its waters. This class is represented by those rivers and bodies of water which are not tide water but which, in their natural condition, are navigable in fact for boats, logs and the like. This class is, far more numerous than the other two that have been mentioned and finds many illustrations. Varick v. Smith, 5 Paige, 136; 9 id. 547 (Oswego river) ; Van Buren v. Baker, 12 N. Y. St. Repr. 209 (Oswego river); Commissioners of Canal Fund v. Kempshall, 26 Wend. 434 (Genesee river) ; Waller v. State, 144 N. Y. 579 (Skaneateles lake); Smith v. City of Rochester, 157 id. 213 (Hemlock lake) ; Chenango Bridge Co. v. Paige, 83 id. 178 (Chenango river).
A fourth class is that where • the State has no interest whatever and where the stream is the subject of absolute private ownership. This class takes in all the smaller streams and bodies of water which are not navigable in fact. ¡No question in these cases arises between the riparian owner and the State, but litigation is confined to the rights of the various riparian owners upon the stream among themselves.
At one extreme lies that class where the State has the absolute ownership of the bed and the water of the stream, and at the other that where the individual has the absolute ownership, so far as the State is concerned, to the bed and water of the stream; and between these two .lie those classes, each subject to the public easement, in one of which the .State and in the other of which the upland owner has the title to the bed of the stream or body of water.
In construing the rights of the owner of land upon streams and bodies of water, confusion will result, unless certain principles which modify these rights are borne in mind. The first of these is that which makes his riparian rights subject to those of other owners on the stream. Within reasonable limits he will not be permitted to divert
There is, however, a sovereign right, resting in the people of the State, with respect to water courses, which modifies riparian rights of individuals. This sovereignty relates to the right of the State to improve the navigation of streams and bodies of water. The Federal Constitution invests Congress with the power to regulate commerce with foreign nations and among the several States, and this comprehends the power to improve navigation for that purpose. Gibbons v. Ogden, 9 Wheat. 1. Under this power the State may remove obstructions in its tidal streams or those streams navigable in fact, and may make other changes in the streams, subject, however, to making compensation where property recognized as such under the Constitution is taken. Thus it was held in Sage v. Mayor, 154 N. Y. 61, that under this sovereign power the State could improve the Harlem river, a tide-water stream, and remove a pier which had been built out into the stream below low water mark, without making compensation therefor. So, in Scrantom v. Wheeler, 179 U. S..141, it was held that the State of Michigan in the improvement of Sault Ste. Marie might erect a pier upon submerged lands away from but in front of the upland of a riparian owner, without making compensation for the interference with his right of access. Again, in - Gibson v. United States, 166 U. S. 269, it was held that a dike might be constructed in the Ohio river, reducing the flow of water in front of the property of a riparian owner, without liability for compensation to him, where the dike was constructed for the purpose of improving the navigation of the stream.
The rights of the State, however, with respect to improv
The contention between the State and private owners, in cases relating to riparian rights on streams navigable in fact, turns upon the question as to whether or not the stream or body of water is a navigable stream, in fact; for, if it is not a navigable stream, in fact, the authorities are agreed that, unless expressly reserved in the grant or conveyance, the title to the bed of the stream passes with the title of the uplands, and becomes the private property of the owner of the bank, and is not subject to the power of the Rational or State government to improve commerce or navigation. Ro interference by an individual or by the government with such a stream which affects riparian rights can be made, without making compensation to persons damaged thereby; but the difficulty often consists in determining whether or not a particular stream is to be treated as one
This court found in its previous decision (62 Misc. Rep. 189) that the portion of the Oswego river opposite claimants’ property was not and never had been navigable in fact. 27o evidence was introduced to show that this part of the river in its natural state had ever been used for the transportation of the products of the soil or of the forest, or for commerce of any kind. It appeared that, when the State constructed the original Oswego canal, the canal was carried around this part of the river. The State used a part of the Oswego river for the canal, but at no time has the part opposite claimants’ premises been used for through transportation up or down the river. The position taken by the court, that the river opposite claimants’ premises is not to be treated as navigable in fact, is well supported by the authorities. “A stream is a public highway wherever it is suitable in its natural condition for general use in travel or in the transportation of property.” Gould on Waters, § 107. “ Streams which are not floatable, or cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are absolutely private.” Id., § 108. “A stream, to be ‘ navigable ’ within the authorities, must furnish a common passage for the king’s people,’ must be of ‘ common or public use for carriage of boats and lighters,’ must be capable of bearing up and floating vessels for the transportation of property, conducted by the agency of man.” Munson v. Hungerford, 6 Barb. 270. “ It is not necessary that the stream should be navigable through its whole length. The public may use such portions of it as are navigable.” . Curtis v. Keesler, 14 Barb. 518. “ The true rule is, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks.” Morgan v. King, 35 N. Y. 459. It is evident from the foregoing considerations and the decisions of the courts that the Oswego river at the premises of the claimants is to be treated as a stream not navigable in fact, and that the inter
The rights acquired under the Stene patent, however, have not come down to the claimants, since the State, by appropriations made since the Stene patent, has acquired certain land and riparian rights included within the terms of the patent. In determining what these rights are, this court must follow the adjudications heretofore made by the courts as it finds them and not formulate any new doctrine. The rights of the parties must be determined by reference to the facts and the established decisions of the courts. The difficulty of determining the rights of the parties since the appropriations by the State for the old Oswego canal lies in the fact that no grant of land or water rights affecting these premises was made under the act of 1816 (chap. 237) and no appraisement was made pursuant to the act of 1817 (chap. 262) ; and, as there are no living witnesses to recount the actual transactions as they occurred at that time, reliance must be had upon the acts of the parties themselves, interpreted in the light of such documentary evidence as is available. One of the facts that assists in determining the rights acquired by the State and those that remained in the claimants is the statute under which the rights of way for the original canal were acquired. This statute, enacted in 1817, provided that the State might acquire such land and water as might be “ necessary ” for the canal, “ doing nevertheless no unnecessary harm.” Laws of 1817, chap. 262. It seemed to be the intention of this act that only such rights should be acquired by the State -as were necessary for the proposed canal, and that in acquiring those rights no unnecessary harm should be done; but there is no grant or award showing what rights the State regarded as necessary, and recourse must be had to what was actually done. Certain maps have been produced in evidence showing blue lines which are intended to indicate the land taken by the State for the old canal, but these maps do no-t define the riparian rights that the State acquired. When it began the construction of its canal in 1825, claimants’ predecessors were in possession of the uplands and owned the fee of the
Obviously it was not deemed necessary by the State to take from the claimants’ predecessors all of the water of the Oswego river. This would have been accomplished had the State constructed the dam and pier from bank to bank, without openings for the mill and flume; and, had this course been taken by the State, the claimants would not be in a position to insist that the State in building the barge canal should provide openings for the surplus water of the river. The appropriation of land and water by the State at this dam and the provision for supplying the mill and flume with water were contemporaneous transactions; and the use of water by claimants’ predecessors and by claimants is not by virtue of a license from the State which may be revoked at any time, but is a matter of right granted at the time of the State’s appropriation. In the absence of any written grant or an appraisement, the same principles that should apply to the rights acquired by the State must
That this was the view of the parties is evidenced by the transactions which occurred subsequently to the construction of the canal. The State claimed the right to the power created by its dams and in 1823, by chapter 112 of the laws of that year, provided for the use of such power. See also B. S., pt. 1, chap. 9, tit. 9, art. 5, § 80. It sought to apply this statute to the case of claimants’ predecessors and undertook, in the year 1827, to sell at public auction the surplus waters at the east end of the dam and did actually sell these waters; but, on account of the claims of the claimants’ predecessor, the owner of mills on the dam, no certificate of sale was given and in the same year a bon'd was given by him to keep the flume in repair. These facts show that the State recognized the rights of claimants’ predecessors to use the water of the river, without requiring any lease or making any other compensation. This view is also confirmed by the decisions in the Varick case, made in 1839 and 1842. 5 Paige, 150; 9 id. 559. That case did not involve a situation exactly like the one at bar, since the principal question involved there was whether or not the State could sell the water of the river not-needed for its canal to the injury of a lower riparian owner. This the court held could not be done, and in making the decision it said: “ In this particular case, the state has the absolute and exclusive right to the land on which the- dam is built, and to the dam itself. It has also an absolute and exclusive right to so much water as is necessary to be diverted for the supply of the Oswego canal, and by necessary consequence it has a temporary and usufructuary right to all the water in the dam, as a means of keeping an adequate supply for actual diversion, and it has a partial right to the land on which the water flows.” 9 Paige, 560. “ What then, under the provisions of this act, in the case under consideration, was taken and- appropriated to the public use ? Clearly all the land and water which were neces
The foregoing relates particularly to the original openings in the dam pier, that is, the opening for the sawmill and for the flume, but applies in some measure to the additional opening in the pier which existed a.t the time of the present appropriation. When the State served its pres
In view of these .considerations and the existence of the second aperture for more than forty years,, it seems a fair conclusion that the claimants have a permanent right to its .maintenance which enables them to insist upon compensation for such water as it will admit to their power plant and which is niot needed and was not acquired by the -State.
The view here taken of the rights of the. respective parties is further confirmed and recognized by the present proceedings under which the State seeks to acquire, so far as . the power plant and Genesee mills properties are concerned, all of the right, title and interest “ in the land in the bed of the river ” 'and “ .also all of their right, title and interest as riparian owners.”
The rights which claimants thus acquired through the previous appropriations of the State are property rights. “ Property ” in the strict legal sense is an aggregate of rights which are guaranteed and protected hy government. In the ordinary sense it is used to indicate the thing itself rather than the rights attached to it. Whether or not we employ the term in one or the other of these senses, the result is the same, so far as the interference with property is concerned • for, while in the former attention is directed to the rights which make up the thing, in the latter the thing which constitutes the aggregation of these rights is emphasized. In both cases the rights attached to the thing are the subject of concern. A reference to the cases in the courts will show the various rights which have been protected under the name of property hut which, in reality, are rights attached to something which in the ordinary mind constitutes property. In Forster v. Scott, 136 N. Y. 584, Judge O’Brien said: “ Whenever a law deprives the
The easements of light, air and access appurtenant to abutting lots constitute property rights protected by the Constitution, where the State has authorized the construction of an elevated railroad in a public highway. Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. R. Co., 104 id. 268; Reining v. N. Y., L. & W. R. R. Co., 128 id. 157; Muhlker v. Harlem R. R. Co., 197 U. S. 568. In Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111, a vault under a sidewalk of the city, constructed with the permission of the city authorities by the owner of the abutting buildings, was held to be an easement appurtenant to the abutting owner’s premises and a species of property which could not be interfered with by the construction of an elevated road without making compensation. In Parish v. Baird, 160 N. Y. 306, Judge O’Brien says: “ Moreover, the vault over which the walk was laid and of which it was a part, was an easement appurtenant to the plaintiff’s property, and in itself a species of property which the plaintiff may protect as fully as any other property.”
A franchise to take tolls for the use of certain locks and
State has power to grant it. It may retake it as it may take other private property, for public uses upon the payment of just compensation.” Monongahela Nav. Co. v. U. S., 148 U. S. 341.
A ferry franchise is property. Mayor v. Starin, .106 N. Y. 11. A franchise granted by a municipality to operate a street railway in a public highway is property. People v. O’Brien, 111 N. Y. 1; Sixth Ave. R. R. Co. v. Kerr, 72 id. 330; People v. Sturtevant, 9 id. 263.
There is no species of property which has been the subject of more litigation or been more jealously guarded than riparian rights, and these rights have universally been held to be property rights. Lewis, in speaking of the respective rights of the public and riparian owners on streams navigable in fact, says: “ These beneficiary rights are property, and within the protection of the constitution. They are attached to the riparian property by nature, are universally estimated .as part of its value in all the dealings between man and man, and should receive the protection of the law.” Lewis Em. Dom., § 73.
Again the same author says: “Streams which are not navigable are wholly private property. The riparian owner, by means of dams, or otherwise, may make a reasonable use of the water as it flows over his land. An act of the legislature declaring such a river public, or navigable, will not affect such rights, and the riparian owner cannot be deprived of the use of the water, or his private works on the stream interfered with, without compensation. Compensation must be made for all damages occasioned to private rights by improvements making such a stream navigable in fact.” Lewis Em. Dom., § 68.
Gould in speaking of riparian proprietors upon both navigable and unnavigable streams says: “ The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the
In speaking of the power of the Legislature to declare a stream a public one, Judge Cooley says: “ Though it is said that the legislature of the state may determine whether a stream shall be considered a public highway or not, yet, if in fact it is not one, the legislature cannot make it so by simple declaration, since, if it is private property, the legislature cannot appropriate it to a public use without providing for compensation.” Cooley Const. Lim. (7th ed.) 863; Morgan v. King, 35 N. Y. 454.
Eight of access to tide water, from land originally under water upon -which a wharf had been built, granted with the right of wharfage, is property protected by the Constitution. “ The land under water with the right of wharfage was property belonging to it as a proprietor, which, it ig believed, the state could not take without making compensation.” Langdon v. Mayor, 93 N. Y. 159.
“ This riparian right is property, and is valuable, and. though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.” Yates v. Milwaukee, 10 Wall. 504.
Rumsey v. N. E. & H. R. R. Co., 133 N. Y. 79, holds that the right of access which the upland owner has to the Hudson river, a tide:water stream, is a property right which cannot be taken from him without compensation by a railroad company, the construction of which has been authorized by the Legislature. In Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75, the court held that a grant of land under the water of the Hudson river to a railroad company by the State did not extinguish or impair the easements or riparian rights of the owners of the uplands, such as the right of access to the navigable part of the
_ Lewis, in his work on Eminent Domain, says: “According to principles heretofore laid down, it follows that any injury to riparian rights for public use is a taking for which compensation must be made.” 2d ed., § 84.
In Gil zinger v. Saugerties Water Co., 66 Hun, 172; affd., 142 N. Y. 633, the plaintiff was a mill owner with a water power on the Plattekill, a non-navigable stream running through his premises. The action was brought' for the diversion of water from the stream upon which the mill is situated, and it was held that he could not be divested of his right to the natural flow of the stream, except upon just compensation and under the exercise of the right of eminent domain.
In Crooker v. Bragg, 10 Wend. 260, it was held that, where the water of a river is divided by an island, so that only one-fourth of the stream descends on one side of the island, and the residue on the other, the owner of the shore where the largest quantity of water flows is entitled to the use of the whole water flowing there; and the owner of the other shore has no right to place obstructions at the head of the island to cause one-half of the stream to descend on his side of the river; and a stream of water cannot be diverted from its natural course without the consent of the owner over or by whose land it passes, although such owner may not require the whole or any part of it for the use of machinery.
The head-note of Commissioners of the Canal Fund v. Kempshall, 26 Wend. 403, which summarizes the decision, reads as follows: “ Fresh water rivers, to the middle of the stream, belong to the owners of the adjacent banks. If navigable the right of the owners is subject to the servitude of the public interest for passage or navigation. The owners, however, are entitled to the usufruct of the waters flowing in the rivers, as appurtenant to the fee of the adjoining banks, and for an interruption in the enjoyment of their privileges in that respect, in consequence of public
In the same case Senator Verplanck says: “I cannot assent to the position that the conceded common law authority of the state over such rivers for the purposes of navigation comprehends the right to divert the waters to other purposes of artificial navigation wholly distinct from that of the river itself. The right of a public navigable highway on a river, if it be susceptible of it, or capable of being made so, is an easement or servitude which, like other servitudes, public or private, is to be exercised without intrusion on the other proprietary rights, beyond what is necessary for its due and fair enjoyment. To consider this right of sovereignty as involving also an unlimited right to the use of the waters for other purposes of transportation, in another direction and channel, would be in contradiction to an acknowledged principle of the law of easements, (already stated) that nothing passes as incident to a servitude but what is needed for the sufficient enjoyment of the right ' itself.’ The proprietor of the bed and banks of the stream has himself no absolute property in the waters, but strictly a usufructuary interest appurtenant to his freehold. He can use the waters for his own benefit; but he may not divert them to the injury of his neighbors, or lessen their quantity, or detain them unreasonably. If such be the strict limitation of the proprietary right, can it be that the state as the trustee of a special public servitude has a much less restricted right, and can divert or detain the waters, for other uses? By its sovereign right of eminent domain, it undoubtedly may do so; just as its officers may, under state authority, enter upon and use the quarries or forests of private citizens for its public works; but all these exercises of sovereign authority are alike ' the taking of private property for public use,’ which the constitution pronounces may not be done, 'without just compensation.’ ” p. 421.
In Yates v. Milwaukee, 10 Wall. 497, the plaintiff was the owner of a wharf on the Milwaukee river. The Legislature of Wisconsin passed an act authorizing the common
ín Pumpelly v. Green Bay Co., 13 Wall. 166, the defendant, by the erection of a dam under authority of the State of Wisconsin and for the purpose of the. improvement of the navigation of Fox river, flooded 640 acres .of plaintiff’s land; and the defendant urged that the damages were such as the State had a right to inflict in improving the navigation of the river without making compensation. The court held that the flooding constituted a “taking” within the Constitution, and said: “We are not unaware of the numerous cases in the state courts in which the doctrine has been successfully invoked that for a consequential injury to the property of an individual .arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one, in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other state constitutions, we shall not be unmindful of the weight due to the
In United States v. Lynah, 188 U. S. 455, the petitioner brought suit in the Circuit Court for the district of South Carolina to recover of the United States compensation for certain real estate which it was alleged had been taken and appropriated by the United States. The taking and appropriation consisted in building across the Savannah river certain dams, training walls and other obstructions, thus raising the level of the water and causing it to flow back upon the petitioner’s plantation—raising the water thereon about eighteen inches. The Supreme Court held that the improvement of the Savannah river in this case amounted to the taking of petitioner’s property within the scope of the fifth amendment, and that the government was under an implied contract to make just compensation therefor.
Cooley on Constitutional Limitations says: “Although the regulation of a navigable stream will give to the persons incidentally, affected no right to compensation, yet if the stream is diverted from its natural course, so that those entitled to its benefits are prevented from making use of it as before, the deprivation of this right is a taking which entitles them to compensation, notwithstanding the taking may be for the purpose of creating another and more valuable channel of navigation. The owners of land over which such a stream flows, although they do not own „ the flowing water itself, yet have a property in the use of that
This view here taken, that the State cannot appropriate for purposes of the construction of the canal the riparian rights of the claimants without compensation, is not in conflict with any of the authorities. The case of People ex rel. Tibbetts v. Canal Appraisers, 17 Wend. 571, which reversed the same case in 13 Wend. 371, was confirmed in its doctrine to the Mohawk river by the case of Commissioners of the Canal Fund v. Kempshall in 26 Wend. 403, and by later cases; and the case of People v. Canal Appraisers, 33 N. Y. 461, so far as it laid, down any rules applicable to other streams than the Mohawk river, which was the stream involved in the case, was overruled by Smith v. City of Rochester, 92 N. Y. 463, and other later cases. In the case of Sage v. Mayor, 154 N. Y. 61, where the city of New York undertook to improve the Harlem river and in so doing interfered with the right of access to the river by the upland owner, there was no land to which riparian rights were attached; and the bed of the Harlem river, a tide-water stream, was not owned by the owner of the upland, but by the city of Hew York. The case of Barnes v. Midland Terminal R. R. Co., 193 N. Y. 378, involved the foreshore of the ocean. The question of taking land for the improvement of navigation was not in the case. It was simply a question as to the relative rights of the owner of the upland and the general public in the foreshore. The case of Matter of City of New York, 168 N. Y. 134, known as the Speedway case, did not involve the question of the right of the city to improve the navigation of the Harlem river; and in that case the court found that the owner of the upland was entitled to compensation for the taking and destruction of his riparian rights by the appropriation of the tideway by the city of Hew York. In Gibson v. United States, 166 U. S. 269, the improvement
These riparian rights cannot be taken under the power of eminent domain, because they constitute property, as we have shown, protected by the Constitution; and for the same reason they cannot be taken under the power of the State to improve navigation. The river, at the place opposite claimants’ premises and for some distance south and north thereof, is a non-navigable river and is not subject to the public easement of navigation. The State, therefore, could not, if it desired, construct this canal in the channel of the river, without making compensation to claimants for any injury to the riparian rights which remained in them after the appropriations for the old canal.
Fot only is it not within the power of the State to construct and improve the channel of the river without making compensation for injuries to claimants’ riparian rights, but the State is not seeking to make the improvement at this point in the river itself, but outside the channel of the river. At no time has the State. used the river opposite claimants’ premises as a channel for through traffic. Forth of their property, the east portion of the pond created by the river was boomed off; but ever since the construction of the original canal the channel has passed around the dam at Fulton into the still water created by the dam lower down the stream. Even if the State had the right to improve the navigation of the stream itself, without making compensation for damages incidentally occasioned thereby, it cannot construct its work outside the regular channel and claim exemption from damages. Lewis, on Eminent Domain, says: “ The public right is a right of passage
The work across claimants’ premises cannot be considered as an improvement of the navigation of the river, even upon the plea that sometime in the distant past the land occupied by the claimants must have been under water and constituted a part of the bed of the river. As far back as the evidence in this case goes, the property has always been occupied for private purposes and has formed no part of the regular channel of the stream.
The foregoing authorities sufficiently sustain the position that, in this case, under the common law, disregarding for the moment the statute under which the improvement is being made, the State cannot appropriate rights attached to the land of claimants without compensating them therefor. The tendency of judicial construction is to give full force to the provision of the Constitution of the United States and of the several States requiring compensation to be made where private property is taken for public use, whether such use is required for the improvement of a navigable stream or body of water or in the construction of an enterprise not associated with water courses. This trend of legal authority is shown by the decisions in the United States Supreme Court in the cases of Yates v. Milwaukee, supra; Pumpelly v. Green Bay Canal Co., supra; United States v. Lynah, supra, and in Scrantom v. Wheeler, supra, which was decided by a divided court, the dissenting-judges holding that the right of access to the stream in which the owner of the upland had no title to the bed of the stream was property and as such was protected against invasion by the State, even by the construction of a dike upon the submerged land. Mr. Justice Shir as says: “I think this question may well be answered in the words of
The State, however, in the present instance, has not been proceeding under its power to improve the navigation of the river. The statute under which the State is proceeding provides for compensation; and, whether we treat the acts of the State as being exercised under its power of eminent domain or under its' power to improve navigation, compensation was contemplated and is provided for under the statute under which the proceedings in the present case are being conducted. Under the common law there was no liability for damages for changing the grade of streets, but this liability has been changed in very many cases by statute. It is equally within the power of the State to proceed under the common law to improve the navigation of a stream and thus exempt itself from liability for incidental damages, but it may also provide for compensation in such cases. O’Connor v. Pittsburgh, 18 Penn. St. 190 ; Transportation Co. v. Chicago, 99 U. S. 635; U. S. v. Alexander, 148 id. 186; People v. N. Y., O. & W. Ry. Co., 133 App. Div. 476.
The preceding discussion brings us down to the present appropriation by the State, notices for which were served August 6 and October 2, 1906. At the outset we are met by the question as to the extent of the appropriation, arising from the fact that the notices specify in two cases all the riparian rights as having been taken, while the plans for the improvement placed in evidence provide for openings in the new pier. The question has arisen as to whether the plans modify the notices so as to limit the extent of the water rights taken by the State to the actual necessities of the canal. In times of high water there will he an abundant supply of water both for the canal and the water right owners; and, if the State is appropriating so far as these claimants are concerned only what is necessary for the canal, allowance should be made for the water which they will still be permitted to use. There is no doubt that
[Here follows a discussion at length of the evidence relating to the question of damages, which, by reason of its want of direct bearing upon the legal questions involved and the necessity for economizing space, is omitted.'—-Rep.]
The conclusion of the court is that the Oswego river is non-navigable in every sense of the term at the location of claimants’ property and for some distance north and south thereof; that the title of claimants extends to the center of the river; that their title to the upland upon which the power plant, Kenyon mills and Genesee mills were or are located is confirmed by more than forty years of adverse possession; that the canal work at the location of the premises where the canal passes around their property is not an improvement of the navigation of the Oswego river under the power of the State to improve navigation; that the State had prior to the present appropriation acquired only such water from the Oswego river as was necessary to operate the old Oswego canal; that, subject to the rights of
Taking all of these considerations and other facts presented by the evidence into account and after a view of the property, claimants should be allowed for the appropriation made from the power plant property with the water rights belonging to it and to the Kenyon and Genesee mills properties, taking into consideration the damages to the remainder of their property, its distributing plant and the fact that it is to have the bridge extending across the present canal taken away, the sum of $275,000; for the appropriation of the Kenyon mills property they are entitled to the sum of $8,000; for the appropriation of the Genesee mills property the sum of $15,000; and for the appropriation of the bridge across the old canal the sum of $1,000; together making a total award of $299,000; with interest thereon from the dates of appropriation, respectively, and the expense of procuring abstracts of title.
Swift and Murray, JJ., concur.
Judgment for claimants.