108 N.Y.S. 635 | N.Y. App. Div. | 1908
This is a proceeding under chapter 189 of the Laws of 1893 and the acts amendatory thereof, for the condemnation of certain property for the purpose of supplying water to the city’of New York. It was commenced on December 5, 1893, when commissioners, as provided in the act, were appointed; they filed their oaths the following day, and proceedings were had. herein which resulted in the filing of their fourth separate report on November 1, 1899; a motion to confirm it was denied at Special Term and new commissioners were appointed; the order was appealed from and was affirmed in this court (72 App. Div. 394); an appeal to the Court of Appeals from the order of affirmance was dismissed (173 N. Y. 640). The new commissioners qualified on June 21, 1902. The survivors of these commissioners, with substitutes made necessary by death, filed their report February 9, 1906; it awarded, for parcel No., 63,- which will be described later, $6,900 to the so-called ¡Raymond heirs, and for parcel No. 64, $10 to the Raymond heirs and $27,100 to the so-called Cole heirs. . The Raymond interests opposed the confirmation of the order; but it was confirmed.and the Special Terzn refused to send the matter back to the comrnis- ' sioners; the Raymond heirs appealed to this court; but the appeal was dismissed (116 App. Div. 798); the order of disznissal was, however, reversed by the Couz't of Appeals (189 N. Y. 34) and the award of the coznmissioners, as set forth in the report filed February 9, 1906, is now before us for review upon the merits.
The Rayznond heirs filed a claim to the award of $27,100 to the Cole heii’s, and after they appealed fz-om the order of confirmation, the city deposited the amount of the award in the depository désig
The description of so-called parcel No. 63 was of land under the waters of Gleneida lake; the description of parcel No. 64 was “ all rights of milling, all rights of pondage and all rights to raise and lower the waters of Lake Gleneida, Town of Carmel, County of ■ Putnam, are intended to be included in this parcel.” ■
The Raymond heirs were the owners of the land under the waters of Gleneida lake, and were awarded therefor the sum of $6,900, which they have accepted, and received.
The. interest of the Cole heirs is more complex. Some two to five hundred feet below the lake, the Cole heirs owned about twenty-three acres of land on the outlet, upon which was situated a mill and mill site; the twenty-three acres itself was not taken in ■this proceedirig, not delineated on the map nor described in the petition upon which the proceeding was based. In 1811 the lake and a large area of land around it, including the mill, was owned by Mary Gouvernenr, who in that year conveyed to one of the predecessors in title of the Cole heirs this twenty-three acres of land, upon which stood the mill, together with “the privilege of the water of” the lake. The lake or pond was of about one hundred and eighty acres. It is fair to assume that at that time the lake was used as a reservoir for the mill, for it appears that continuously for a long period of years immediately before 1870 it was so used, the waters being controlled by a dam, gate or flume at the very outlet of the lake, and the proprietors of the mill asserting the right to raise and lower its waters and actually doing so as far back as the memory of living witnesses goes. The right in the owner of the mill to flood the lake to high-water mark, and to draw off water down to the bottom of the flume seems never to have been questioned, at least while the mill was being operated-; the distance between these two levels of the water was approximately four feet ten and orie-half inches.
The appellants, the Raymond heirs, attack the award to the Cole heirs for parcel 64 upon the ground that any easement the latter or their predecessors in title had, was abandoned and .destroyed
The appellants also urge that any right, which the Oole heirs had ■ in this lake was not taken by the city in this proceeding, but rather was taken when it obtained title, through condemnation proceedings, of the twenty-three acre mill site. I am unable to comprehend how the appellants have any interest in the question whether the Cole heirs have been paid twice for their property; the. question might be highly important to the city, but it has not appealed.
However, I think-there is a more satisfactory answer to tile contention. It is provided in section 11'of chapter 189 of the Laws: of 1893, the act under which this proceeding was brought, that the title to the land described in the petition should vest in the city absolutely upon the filing of the oaths of the commissioners. Such oaths were filed in this proceeding on December 6, 1893, and the water rights of the Cole heirs were described in the petition as parcel 64; while the owners were not mentioned by name, it is entirely clear that these rights were intended, for the description of . parcel Ho. 64 was all rights of milling, pondage^ and to raise and. lower the waters of the lake. There is no- proof in the record that
There remains another point presented by the appellants which should be considered. They assert that the award of ten dollars to them for parcel 64 is inadequate, and point to the evidence in the record that their right to cut and harvest ice was exceedingly valuable. I have no doubt it was; but in my view of the case they have had a substantial award therefor in connection with parcel 63. It is to be recalled that the description of parcel 64 was rights of milling, of pondage and to raise and lower the waters of the lake! The right to take ice had nothing to do with what is very evidently meant by this description ;J;he ice privilege was appurtenant to the ownership of the bed of the lake, and the bed of the lake is described in parcel 63 ; from the record'it seems to me the commissioners took into account the advantage of the right to harvest ice when they fixed the appellants’damage to that parcel.
I advise the affirmance of the order, appealed from, with costs.
Woodward, Jerks, Gayror and Miller, JJ., concurred.
Order affirmed, with costs.