223 A.D. 559 | N.Y. App. Div. | 1928
Each of the plaintiffs owns a manufacturing plant located on the northerly side of the fourth branch of the Mohawk river. A short distance westerly there is a dam across this branch. The water so impounded flows through a canal to the plants, where fourteen feet of head is available for power. The tailrace returns the water to the same stream from which it was taken. The dam and canal,
The position of the defendant is that the authorization by the government leaves no question for judicial review. It cites United States v. Chandler-Dunbar Co. (229 U. S. 53) as authority sustaining its position that when the Federal Power Commission authorized the erection of these boards, it was an act in aid of navigation, and not subject to judicial review. I do not so
It is stipulated in the case that plaintiffs own the Kings dam and canal and the water power thereby made available. A portion of plaintiffs’ property has been taken by placing the flash boards and the resulting rise of water in the pool. This was not a taking of lands under navigable waters, in regard to which Congress and the Federal authorities have complete and entire control. ( United States v. Cress, 243 U. S. 316.) In that case, as to claim No. 718, the identical condition existed as here. Federal locks and dams were constructed in the Cumberland and Kentucky rivers. The claimants owned five and one-half acres of land upon which there was a mill adjacent to a tributary of the Kentucky river. The opinion says: “ That by reason of the erection of the lock and dam the mill no longer can be driven by water power; that the water above the lock and dam, when it is at pool stage, is about one foot below the crest of the mill dam, and this prevents the drop in the current that is necessary to run the mill; that no part of the land or mill is overflowed or covered by pool stage of water, nor is the mill physically damaged thereby.” The opinion states in determination of the claim: “ The right to have the water flow away from the mill dam unobstructed, except as in the course of nature, is not a mere easement or appurtenance, but exists by the law of nature as an inseparable part of the land. A destruction of this right is a taking of a part of the land.”
The tributary upon which this mill was located was non-navigable water, but that in no wise changes the situation in this case, for it is conceded here that there is private ownership of the King dam, canal and water power, and there has been no claim by the Federal government that its removal will be necessary to improve navigation.
Defendant is a licensee. Section 10, subdivision (c), of the Federal Water Power Act (41 U. S. Stat. at Large, 1068, 1069; now U. S. Code, tit. 16, § 803, subd. c) provides in part: “ Each licensee hereunder shall be liable for all damages occasioned to the-property of others by the construction, maintenance, or operation of the project works * * The force of such a statute has been recognized in this State. (Oswego & Syracuse R. R. Co. v. Slate, 226 N. Y. 351; Fulton L., H. & P. Co. v. State, 200 id. 400.) But to make that applicable there must have been a “ taking ” in aid of commerce. In this case there is an attempt to take property for private use, to prevent which an injunction is asked, and the damages are only those that accrued prior to the restraining order.
The nature of the use of plaintiffs’ property which would be taken if flash boards are maintained, was properly determined to be for the private benefit of the defendant, and the court had power to make that determination. Plaintiffs are entitled to a permanent injunction restraining this illegal taking and for the damages which they suffered during the period their rights were invaded.
On the question of costs. Williamsburgh City Fire Insurance Co. v. Central New England Railway Co. (202 App. Div. 813; affd., 235 N. Y. 582) seems to decide that the five per cent extra allowance must be computed upon the amount of the recovery, but I feel that the plaintiffs are entitled to as substantial an allowance as the statute will permit. They advocate a somewhat ingenious theory that giving due regard to the above decision, five per cent may be allowed on the value of the subject-matter in connection with the Little Falls Fibre Company cause of action, because they received no award for damages. The 2d subdivision of section 1513 of the Civil Practice Act permits five per cent extra allowance “ upon the sum recovered or claimed, or the value of the subject matter involved.” The fibre company did not recover or claim any sum. The value of the subject-matter involved belonging to it was $18,500. Plaintiffs’ allowance should be increased by five per cent of such sum. The judgment as so modified should be affirmed.
Van Kirk, P. J., Davts and Whitmyer, JJ., concur; Hinman, J., dissents.
Judgment and order modified by increasing the plaintiffs’ recovery for costs, disbursements and additional allowances from $364.16 to $1,289.16, and as so modified judgment and order affirmed, with costs.