122 Misc. 545 | New York Court of Claims | 1924
The action is upon two several claims. Each claim is based upon the acts of the state relating to the construction of the Barge canal at Baldwinsville and vicinity. The defendant does not interpose the question concerning the jurisdiction of the court to hear and determine upon the merits, in the action, items or elements of claims embraced in the two claims, whether they be considered as claims for appropriations or claims for damages for the invasion of property rights. For the purposes of the decision the claims can be treated as a single claim. The cardinal facts are:
Plaintiff was, on June 4, 1908, and since 1892, and is the owner in fee simple of lands and structures at Baldwinsville, lying between the Seneca river on their southern side and the “Baldwinsville canal ” on their northern side, and constituting a plant for manufacturing flour. Whether or not it owned the continguous bed of the river to its center I do not decide, because, in my opinion, the rights involved in this action relate only to the acts of the state affecting the flowage of the waters and their uses; there is no dispute involving the ownership of the river bed. The Seneca river is a continuous, fresh water, non-tidal stream, carrying the overflow waters of Seneca and Cayuga lakes to the Oswego river. In its natural condition it was sufficiently navigable and sufficiently navigated to give it the character of a natural public highway, notwithstanding interruption of its navigability at places by rapids or obstructions. It was navigable in fact. In order to be navigable, it is not necessary that it should be deep enough or of a nature to admit the passage of boats or other craft at all its parts, nor need the navigation be open at all seasons of the year or at all stages of the water. Waterloo Woolen Manufacturing Co. v. State of New York, 118 Misc. Rep. 516, 523; Waterford Electric Light, Heat & Power Co. v. State of New York, 117 id. 480, 492; Economy Light & Power Co. v. United States, 256 U. S. 113; United States v. Cress, 243 id. 316, 321; Danes v. State of New York, 219 N. Y. 67,
The premises of plaintiff were reached by a swing bridge over the “ Baldwinsville canal.” Appurtenant to them and within plaintiff’s ownership (in addition to the ordinary riparian rights incident to them) was the granted right to draw, have and use from the waters within the “ Baldwinsville canal ” 289 cubic feet of water per second, subject to the prior and superior rights hereinafter stated.
The waters of the “ Baldwinsville canal ” came from the waters of Seneca river impounded by a dam known as the “ Baldwinsville dam,” located about 1,800 feet westerly of plaintiff’s premises. The dam and the canal were, in their original condition, constructed about 1810-1813, in virtue of and in accordance with legislative consent and empowerment to Jonas C. Baldwin, who, in and prior to 1809, was the owner in fee of the lands on each side of the river at the places and in the locality of the dam and canal. Inasmuch as the river was navigable, legislative consent was essential to their construction (People ex rel. N. Y., Ont. & Western Ry. Co. v. State Tax Commission, 116 Misc. Rep. 774), and was given in “ An act to authorize Jonas C. Baldwin to erect a dam across the Seneca river,” being chapter 54 of the Laws of 1809. It declared that Jonas C. Baldwin, his heirs or assigns, might erect and maintain a “ dam across the Seneca river, at the head of the rapids commonly called McHarry’s rift, of such height as shall be necessary for improving the navigation of said river, not exceeding seven and one-half feet on the rapids above said dam: Provided always, and upon this express condition ” that not less than thirty feet of the dam shall be so constructed as “ to admit the passage of rafts and boats down ” the river; “ And provided also, That the said Jonas C. Baldwin, his heirs and assigns, shall erect and maintain a canal and lock for the passage of the largest boats usually employed in said river from above said dam, to the still-water, two feet deep, below the same, said canal and lock to be at least twelve feet wide, and said lock to be at least seventy-seven and a half feet long within the gates, and with a sufficient depth of water to pass boats, drawing two feet of water, when loaded * * The statute authorized Baldwin, his heirs and assigns, to exercise eminent domain; and to demand and receive tolls for
At the time of the passage of the act of 1809, Jonas C. Baldwin was the owner of riparian rights appurtenant to his uplands. The state possessed the rights inherent in its sovereignty. It is unnecessary to determine the precise nature and extent of the original respective rights of Baldwin and the state in Seneca river at the locus in quo prior to the act of 1809, because those rights were superseded by the act which constituted a contract between the two parties by virtue of Baldwin’s acceptance of the act and his compliance therewith. Oswego & Syracuse Railroad v. State, 226 N. Y. 351; Lehigh Valley Railroad Co. v. Canal Board, 204 id. 471; United States v. Chandler-Dunbar Co., 229 U. S. 53. It is evident, on the face of the act, that Baldwin’s compliance therewith was intended to and did constitute an improvement of the navigability of the river. No question, therefore, can be or is raised as to the validity of the act on constitutional or other grounds as constituting any impairment of the public easement of navigation.
It is well established in this country that the legislature of the state may, as the representative of the people, grant the soil of or confer an exclusive privilege in navigable rivers or waters held by it for the people, or authorize a use inconsistent with the public right, or interfere with the rights of navigation, so far as the public is concerned, when acting in the public interest, subject to the superior control of the federal congress. People v. New York & Staten Island Ferry Co., 68 N. Y. 71; Saunders v. New York Central & H. R. R. R. Co., 144 id. 75; Shively v. Bowlby, 152 U. S. 1, 48-50; Barney v. Keokuk, 94 id. 324; Langdon v. Mayor, etc., of City of New York, 93 N. Y. 128, 129, 154. Whether a grant or privilege is in the public interests is for the sole determination of the legislature.
I now return to the conditions existing on June 4, 1908. Through the locality in question the Seneca river flows in an easterly direction.
The “ Baldwinsville canal ” extended from a point in the northern bank of the river a short distance west of or above said “ Baldwins-ville dam,” or in its pool, easterly through the upland along the
From the pool of the dam, easterly through the upland along the southern side of the river to a point at or near the westerly line of Syracuse street in the village of Baldwinsville, extended a hydraulic race or canal, known as the “ South Hydraulic race ” or “ South Hydraulic canal,” for the purpose of conducting water from the pool of the dam for power or other purposes.
Subsequent to February 24, 1809, when chapter 54 of the Laws of 1809 took effect, Jonas C. Baldwin, or his successors in title, conveyed with lands at least seventeen separate and successive rights in and to the use of waters impounded by the dam. The exercise of each right was subject and subsequent to the requirements of all the rights prior in date. The plaintiff’s rights were: (1) The eleventh right in order of priority, which was originally created and granted in a deed dated January 27, 1826, and entitled its owner to the use, subject to the prior and superior rights, of 103 cubic feet of water per second under a head of 8 feet; (2) four-fifths of the sixteenth right in order of priority, which was originally created and granted in a deed dated August 12, 1862, and entitled the owner of the four-fifths to the use, subject to the prior and superior rights, of 186 cubic feet of water under a head of 8 feet.
In 1850 the state of New York, pursuant to and by virtue of chapter 153 of the Laws of 1850, in the exercise of eminent domain, took possession of and acquired in fee ownership the “ Baldwins-ville dam,” the “ Baldwinsville canal ” and locks, and “ so much of the water of said river as shall be necessary for such purpose (of improving the navigation of said river, and the locks and canal to be maintained at the same place) and no more.” The act provides,
Section 8 (Laws of 1850, chap. 153) is: “ The canal commissioners shall maintain the said dam across the Seneca river at Baldwinsville, for the purpose of improving the navigation of said river, and the locks and canal to be maintained at the same place, and for that purpose shall appropriate and use so much of the water of said river as shall be necessary for such purpose, and no more, and they shall permit the surplus water, if any, to be drawn from said dam and canal for hydraulic purposes, in such manner as they shall prescribe, and all repairs to said dam necessary for hydraulic purposes shall be made by the owners of water rights, and all gates, weirs, raceways and conduits constructed for the purpose of drawing water from said dam or canal, shall be made under the direction of the acting canal commissioner, at the expense of the party using the same.”
Section 11 is: “ The act entitled ‘ An act to authorize Jonas C. Baldwin to erect a dam across the Seneca river/ passed February twenty-fourth, eighteen hundred and nine, and the several acts continuing the said act in force, or amending the same, are hereby continued in force until the state acquires title to all the rights of Harvey Baldwin and the representatives of Stephen W. Baldwin in and to said dam, locks and canal.”
Manifestly the state desired and intended to acquire the ownership of the dam, canal and locks and all of the existing means necessary for the purposes of navigation, and the entire and absolute right to the use of the impounded waters in so far as the operation of the canal and locks required.
The provisions of the act were complied with. The purpose stated in section 8 (Laws of 1850, chap. 153) of the act required, as the evi
From the stated facts it follows: At the time of the appropriation by the state, for Barge canal purposes, on June 4, 1908, the defendant, state, owned in fee the dam, the canal and locks, the right to maintain the dam at the crest height of seven and one-half feet and not higher, and the first and superior right to appropriate and use twenty cubic feet of the impounded waters for the canal and locks and navigation within them. The plaintiff and the other successors in title of Jonas C. Baldwin to the lands contiguous to the “ Baldwinsville canal,” owned or had property rights in the (a) maintenance of the dam at the crest elevation of seven and one-half feet; (b) maintenance of the canal and locks for the purpose of improving the navigation of the river, and conveying water from the pool of the dam for power purposes; (c) use of the waters in excess of twenty cubic feet per second during navigation season; (d) use of the canal for the passage of boats to and from their respective industrial plants.
Such rights were created by the grants directly made by or necessarily implied in the provisions of the legislative acts already referred to, namely, “ An act to authorize Jonas C. Baldwin to erect a dam across the Seneca river,” passed February 24, 1809, and “ An act to improve the navigation of Seneca river at Baldwins-ville in the county of Onondaga,” being chapter 153 of the Laws - of 1850, and the acts supplementary thereto or amendatory thereof, and the execution of those acts. The act of 1809 granted Jonas C. Baldwin and his heirs or assigns the right or privilege of taking the water constituting the pool of the dam for the canal and the use of it for power or hydraulic purposes. The improvement authorized by the act was a public work. Calking v. Baldwin, 4 Wend. 668. Private property rights in the flow of a navigable stream, superior to the right of the state in behalf of navigation, may exist by virtue of legislative grant or control. The decisions already cited authenticate such conclusion. The class of cases of which United States v. Chandler-Dunbar Co., supra, is one is
The exercise by the state of eminent domain, pursuant to the act of 1850, did not, within legislative intendment, or in fact, appropriate or take unto the state the impounded waters or the use of them beyond the quantity or extent necessary to the operation of the canal and lock. The titles to the use of the remaining part of the waters rested in the successors thereto of Jonas C. Baldwin.
Subsequent to and about June 4, 1908, the defendant, pursuant to the relevant statutes, entered upon the acts relating to and connected with the construction of the Barge canal at the locality involved in this action. Therein it constructed the dam from the crest elevation of 372.28 to the crest elevation of 374 Barge canal datum; it deepened, straightened, widened and cleared in places, through the distance west of the dam to Seneca lake, and through a short distance east of the dam, the channel of Seneca river; it constructed the Barge canal through upland upon the southern side of the river and south of the “ South Hydraulic canal,” from a point within the pool of the dam easterly through the distance of about 1,800 feet to a point in the river. A part of the construction was a guard gate at the westerly end, and a lock at the easterly end 345 feet long, 45 feet wide, with a lift of 11 feet, and operating accessories and appurtenances. This lock is known as lock 24. The operation of the lock, at its maximum capacity, and its accessories, requires not less than 135.7 cubic feet of water per second during navigation season. It constructed at the western or entrance end of the former or “ Baldwinsville canal ” and the “ Amos race ” steel gates, intended and capable to control the flow into them of waters from the pool of the dam, and preventing the passage of boats or other craft at the western end of the canal into or from it; it constructed at the entrance to the forebay of the Seneca River Power Company, located at the north end of said dam, as already stated, a taintor gate intended and capable to control the flow of water into the head race of the company; it constructed in the northern extremity of the dam an automatic flood gate intended and capable to automatically,
The plaintiff claims and argues that property rights owned by it have been taken or damaged by the state through and because of those acts and their effects in these respects:
I. The state has taken, through complete obstruction, the right of transportation by water or boat between the pool of the dam and plaintiff’s property and plant.
II. The state has taken, during the navigation season, from the owners entitled to the use of water from the waters impounded by the dam, including the plaintiff, the right to the use of (a) the waters flowing at the crest of the dam between the height of 372.28 feet and the height of 374 feet Barge canal datum; prior to the elevation of the crest and the operation of the Barge canal, the users of the water of the “ Baldwinsville canal ” for power purposes had the use of water when the surface of the river at the dam was at or above 372.28 feet Barge canal datum; thereafter the surface of the water must be at least at 374 feet Barge canal datum in order that they have the use of the water; and (b) 135.7 cubic feet of water per second essential to the operation of the lock 24 of the Barge canal and its accessories, and in addition the waters discharged by the operation of the automatic flood gate within the dam.
III. The state, by raising the crest of the Phoenix dam from
IV. The state, through the means of the taintor gates at Waterloo and at the foot of Cayuga lake and the changes in the channel of the Seneca river, has taken unto itself the control of the flowage of Seneca river, has destroyed the natural storage of the waters within the lakes and the Montezuma marshes and flow of the waters of the lakes and river; because thereof, while the total annual amount of water flowing at the dam may not be materially changed, the flow in high-water times is increased to the extent that at times the water is on the basement floor of plaintiff’s mill, and in low-water times is diminished, and the value of the property of plaintiff is thereby diminished.
Concerning “ I.” Obviously, as it seems to me, the state, by placing the steel guard gate at the western entrance of the old or “ Baldwinsville canal,” has appropriated the right of plaintiff to boat transportation between the pool of the dam and its plant. The facts that chapter 153 of the Laws of 1850 is in force and the reciprocal rights and obligations thereunder still exist, and the state has barred the western entrance, compel an award of compensation to the plaintiff. The authority or power of the state under the statute to regulate the manner in which the canal Khali be used and the surplus waters drawn into it is not the authority to destroy the canal or its use or the flowing of the surplus waters into it.
Concerning “II.” (a) The state, since the operation of the Barge canal, so regulates, during navigation seasons, the flow from the pool of the dam that the owners of water rights therein have not, during navigation season, the use of any water therefrom unless the surface of the pool is at or above the crest of the dam, that is, at 374 feet Barge canal datum. In virtue of the appropriations exercised by the state in virtue of chapter 153 of the Laws of 1850, it rightfully so regulated the flow from the pool that those owners had not, during the navigation season, the use of any water therefrom unless its surface was at or above the crest of the dam, that is, at 372.28 feet Barge canal datum. The right of the property owners -under the last stated condition is different and substantially more ample than their right under the first stated condition. While raising the crest of the dam increases the “ pondage ” capacity of the dam, and the power working head at the dam, when the water is flowing over the crest, the increase during the navigation season, in which the low-water condition
(b) I do not deduct the quantity of water used for the operation of the old or “ Baldwinsville canal,” namely, twenty cubic feet per second, from the quantity required for the Barge canal. The state has not abandoned the old canal or the right to use so much of the impounded waters as shall be necessary for operating in navigation that canal and lock, and which remains appropriated alone to that canal and lock. An abandonment of that canal and lock (if permissible, without just compensation to the owners of the water rights, a question I do not consider) must be effected, not by a judicial, but by a legislative declaration. City of Mt. Vernon v. New York, N. H. & H. R. R. Co., 232 N. Y. 309.
The state had not the right, as the trustee of the public and dominant right of navigation and passage, to take the waters of the river for the purposes of continuing the canal or public navigation outside of the river and through the upland and not make compensation to those entitled to the use of the water and injured by its taking. Fulton Light, Heat & Power Co. v. State, 200 N. Y. 400, 418.
Inasmuch as the automatic flood gate opens or discharges only when the surface of the water at the dam is one foot or more above its crest, the particular waters discharged would have flowed and would flow over the crest of the dam and have no efficacy in producing power. Whatever effect those waters may have upon the height of the water at plaintiff’s mill, under the conditions the “ Baldwinsville canal ” would not receive them.
Concerning “ III.” The state has, by the construction of the Phoenix dam, caused, or increased, at frequent times, backwater at plaintiff’s premises and water wheels. The right of the plaintiff to have the water flow past and away from its premises and the tail race of its mill without an artificial obstruction which there increases the natural height of the water to an interference with the water
Concerning “ IV.” The right of the plaintiff in regard to the flow of the river was of a dual character. It was constituted of the (a) granted rights to the use of the 289 cubic feet per second of water drawn from the “ Baldwinsville canal,” in the manner and subject to the conditions already stated, and (b) the ordinary riparian rights incident to the ownership of the land bordering on the river. The fact that the land bordered upon the canal created no right to the plaintiff, as a riparian owner, to the use of the water of the canal as power. Fox River Flour & Paper Co. v. Kelley, 70 Wis. 287; Stebbins v. Frisbie & Stansfield Knitting Co., 201 App. Div. 477; Finn v. Providence Gas & Water Co., 99 Penn. St. 631. The taintor gates and the changes in the channel of Seneca river could not injuriously affect the granted rights of the plaintiff to the use of the water of the canal for power purposes. The steel gates at the entrance to the canal prevent the water of the river from overflowing the banks of the canal; the water within its banks does not flood nor produce backwater at the plaintiff’s mill or the wheels or tail race of it. The taintor gates and the changes in the channel of the river do not increase the scarcity of water, because it is the duty and design of the state to maintain, during the nav'gation season, the surface of the impounded waters at the crest of the dam or at 374 feet, instead of at 372.28 feet, Barge canal datum. It should be borne in mind that the taintor gates could, in virtue of the statute authorizing them, lawfully be used solely “ for controlling the waters of Cayuga and Seneca lakes so far as may be necessary for navigation.” Plaintiff, in its granted rights to the use of water, is not injured by the control or regulation of the fiowage by the taintor gates.
The plaintiff claims that it suffered in its riparian rights by reason of the state’s interference, by means of the taintor gates and the changes in the channel of the river, with the natural flow of the waters of the river.
It is true that a riparian right of the plaintiff as the owner of the land contiguous to the river was to the natural flow of the
The rule invoked by plaintiff is qualified, however, by the rule, equally elementary and unquestionable, that the state has the right to widen, deepen, clear, straighten and improve the channel of a navigable stream for the benefit of the public in facilitating navigation and transportation thereon. Riparian rights are subordinate to the public easement of passage. Riparian ownership is subject to the obligation to suffer the consequences of the improvement of the stream by the state for the betterment of navigability. The state may direct or perform those stated acts, or such other acts relating to the channel of the navigable stream as it deems expedient in the promotion of the public right of navigation without subjecting itself, in the absence of a wanton injury, carelessness, negligence or illegality in the performance, to liability. The ownership of the bed of the stream by the riparian owner does not affect the principle. Fulton Light, Heat & Power Co. v. State, supra; Chase-Hibbard Milling Co. v. City of Elmira, 207 id. 460; Thompson v. State, 204 App. Div. 684; Stegmeier v. State, 191 N. Y. Supp. 894; Lehigh Valley Railroad Co. v. Canal Board, 146 App. Div. 151, 160; mod., 204 N. Y. 471; Huse v. Glover, 119 U. S. 543; United States v. Cress, supra. The plaintiff had not any ownership or interest in the land upon which the taintor gates were placed.
The right of interfering with and making changes in the channel of a navigable stream is not peculiar to or an exclusive privilege of the state. It exists very broadly as to each riparian owner. He, too, may clear, straighten, deepen, widen or even change the location of the channel of the stream where it borders upon his upland. He may dam or dyke it; he may withdraw from it water for industrial purposes. In many ways he may change and interfere with its wonted flow.
The state has not, by any legislative grant or contract, abrogated or emasculated its right to make those changes in the channel of the Seneca river for the purpose of improving its navigability. Indisputably those changes were for that purpose. In engineering language, they canalized the river. They made the river itself a part of a great public highway or thoroughfare between the
In regard to the taintor gates, I find as a fact that the use of them for the controlling of the waters of the lakes so far as may be necessary for navigation, has no injurious results to the rights of the plaintiff. They do not accumulate an unnatural and large mass of waters which they release in such quantities as change the surface of the river at plaintiff’s mill. They tend to lessen scarcity of water by increasing the storage of and releasing water for use in periods of low water. They do not increase the waste or flowing away of water by casting into the river water which the power owners cannot use, because it flows over the crest of the dam or through the automatic discharge gates.
As a matter of law, maintaining by the controlling gates ample water levels for the uses of navigation and the canal in the river connected with the lakes and channels of the lakes, is a proper governmental function. United States v. Chandler-Dunbar Co., supra.
Expert witnesses for the one party or the other have given by far the greater part of the evidence. As to nearly all cardinal facts, the testimony of those for the one party is in severe conflict with or direct contradiction of the testimony of those for the other. Because thereof, and further, because of the general or theoretical character of portions of the evidence, it has been difficult, and, in
I decide: The state of New York, in and through the destruction and taking of the plaintiff’s right of transportation, by means of the “ Baldwinsville canal ” and boat, between the pool of the dam and the land and premises of the plaintiff, has diminished the fair market value of the land and premises in the sum of $5,000.
By reason of the increase in backwater or in the height of the water, at times, at plaintiff’s premises and mill, resulting from the acts of the state in the elevation of the crest of the dam at Phoenix and in the construction and operation of the Barge canal, the fair market value of the said lands and premises has been diminished in the sum of $6,000.
The state of New York, by means of the elevation of the crest of the “ Baldwinsville dam,” the steel gates at the western entrance to the “ Baldwinsville canal,” the steel gates at the western entrance' to the “Amos raceway,” the steel gates at the intake of the Seneca River Power Company, and all changes effected in the said dam and accessories by the construction and operation of the Barge canal, and by the means, further, of using from the pool of the said dam, for the operation of the Barge canal and said lock “ 24,” a quantity of water largely exceeding the quantity required and used in the operation of the “ Baldwinsville canal,” has taken a valuable part of the right of the plaintiff to the use of the waters impounded by said dam as that right existed at the time the state began the construction of the Barge canal, and therein and thereby has diminished the fair market value of said lands and premises in the sum of $17,000.
The plaintiff is entitled to an award and judgment in its favor in the aggregate sum of $28,000, with interest on $5,000 thereof from August 1, 1910, at which time the steel gates to the entrance from the pool of the dam to the canal were in place, to the entry of judgment; on $6,000 thereof from August 1, 1912, the date of the completion of the Phoenix dam, to the entry of judgment; and on $17,000 thereof from January 1, 1916, the date of the first operation of the Barge canal, to the entry of judgment.
Judgment accordingly.