162 N.E. 10 | NY | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *218
Preliminary to the institution of a proceeding to condemn lands belonging to relators, application was made to the Public Service Commission by respondent Niagara, Lockport and Ontario Power Company for such a certificate of necessity as is provided by section 624, subdivision 3, of the Conservation Law (Cons. Laws, ch. 65) as amended by chapter 242 of the Laws of 1923. The application was granted and the Commission certified and determined that relators' real property is necessary for the full development and utilization of a certain single undeveloped water power site on the Salmon river in Oswego county for the production of heat, light or power for sale or distribution to the public; that such heat, light or power to be produced at that site is necessary for public use and that the power company already is the owner of the lands and rights constituting the major part of the head and volume of the usable flow for power at that site. The determination has been unanimously affirmed and the appeal is here by permission of the Appellate Division. After the issue of this certificate, respondent instituted its condemnation proceeding and has prosecuted it to judgment. (Matter of Niagara, L. O.P. Co.,
Relators argue in the appeal now before us that the Public Service Commission was without authority to proceed under subdivision 3 of section 624 but rather that the jurisdiction to make the necessary determination is vested in the Water Power Commission by subdivision 2 of that section. They urge further, that, even assuming *220 subdivision 3 to be the appropriate part of the statute, the Public Service Commission erred in its findings of fact, that the power to be developed was not required for a public use and that subdivision 3 is unconstitutional.
Before considering the validity of subdivision 3, its meaning and application must be decided. Section 624 of the Conservation Law relates to the acquisition of real property for water power sites in the exercise of the right of eminent domain and in seven subdivisions regulates that right. Appellants say that subdivision 2 is the appropriate provision controlling the facts at bar, while respondent points to subdivision 3. It authorizes condemnation of "3. Real property on the application of a corporation organized for the production of heat, light or power, after a determination by the public service commission that such property is necessary to the full development and utilization of a single undeveloped water power site, a major part of the head and volume of the usable flow for power at which site is owned by such corporation, for the production of heat, light or power for sale or distribution to the public and that such heat, light or power is necessary for public use. * * *." By the requirements of this subdivision, no power corporation is authorized to condemn unless the Public Service Commission makes a certain determination. That determination must rest upon evidence tending to prove that the site, instead of consisting of several different sites, constitutes a single one and that the part of it already owned by the power corporation constitutes the major part of the single site. The real property in order to become subject to condemnation must be necessary for the full development and utilization of that undeveloped single site. The heat, light or power sought to be developed by the power corporation must be necessary for a public use.
Approach must first be made to the proposition that the site is a single one. If two or more existed, subdivision *221 3 would not apply and the Public Service Commission would have no jurisdiction. Subdivision 2 would control and the Water Power Commission would have authority to act. Examination of the map which includes the real property owned by the parties when considered with all the other evidence supports the determination that the site is a single one. By section 610, subdivision 5, the term "water power site" is defined. It means "the real property including rights appurtenant thereto or which may become appurtenant thereto which, when a water power is developed, is necessary or useful for the construction, maintenance and operation of a plant for the use of a fall of water for the generation of power." Respondent owns and has developed a water power site at Bennett's Bridge the dam, hydro-electric power house and tail race of which, completed in 1914, are situated up stream from the location of the proposed dam at Lighthouse Hill for the power plant which is the subject of the present appeal. Title to the river bed and adjacent lands between the Bennett's Bridge power site and the Lighthouse Hill dam is vested in respondent except that portion, comparatively small in area, shown in yellow on the map. Respondent by prior adjudication has the right to impound the waters above the Bennett's Bridge dam and to control and vary the natural flow of the river between that site and the proposed one. The practical result is that the proposed site will be available for the generation of power only while the plant at Bennett's Bridge is in operation and on those infrequent occasions when the stream is swollen by freshets. While appellants own real property available for the erection of a dam, its presence would be useless during such times as the water upstream should be impounded by the dam at Bennett's Bridge. Then, too, a dam erected upon appellants' property would render inoperative any dam constructed by respondent on its land further down stream. Both parties concede that a development by one would *222 prevent a development by the other. This fact supplies the test whether the area below Bennett's Bridge comprises one power site or two. Of course if each development would cripple the other, only one site can exist. The real property with its appurtenances on the mapped area is not useful for the operation of more than one plant for the generation of power and, therefore, only one water power site does in fact exist. Since that is the fact, subdivision 2 of section 624 has no application and the Public Service Commission rather than the Water Power Commission is the appropriate official agency to make the determination.
The interest in the head and volume of the usable flow of water which, by prior adjudication, vests in respondent, constitutes, as matter of fact, the major part of such head and volume. Evidence supports this finding by the Commission. At the location proposed for respondent's dam ten thousand horsepower can be developed; at that of appellant's only three thousand horsepower. The full head of the river within the project area, that is, the difference in elevation, is fifty feet. Relators make claim to no more than twenty-two feet. Respondent owns the remaining twenty-eight feet of head. This constitutes the major part.
The Commission has determined that production of light, heat and power at the proposed site is necessary for public use, and that relators' real property is necessary for the production of heat, light or power for sale or distribution to the public. Appellants do not appear to contest the fact relating to the necessity for additional production of heat, light or power. That is a legislative question. They contend that, as matter of law, respondent's use of the additional power will not constitute a public use. This is a subject for judicial inquiry and does not lie within the jurisdiction of the Legislature or its agents to determine. (Matter of City of Rochester v. Holden,
Appellants argue that subdivision 3 of section 624 is unconstitutional in that it violates the equal protection clause of the Fourteenth Amendment by arbitrarily granting to the owner of the major part of the head and volume of the usable flow of a stream rights which are withheld from the owner of the minor part. The sovereign power of eminent domain may be withheld from all except the sovereign or it may be delegated at the will of the Legislature. The legislative authority to delegate is restricted by the Constitution in only two respects; just compensation must be paid for the private property taken and the use for which it is taken must be public. (People v.Adirondack *225 Railway Company,
The order of the Appellate Division should be affirmed, with costs.
CARDOZO, Ch. J., POUND, ANDREWS and KELLOGG, JJ., concur; CRANE, J., dissents on the ground that the act, section 624, subdivision 3, of the Conservation Law is unconstitutional; LEHMAN, J., not sitting.
Order affirmed.