115 Misc. 683 | New York Court of Claims | 1921
This claim was made against the state for the destruction of the dam and hydro-electric plant
The Chenango canal was authorized in 18291 and constructed from 1833 to 1840 to facilitate traffic between the cities of Binghamton and Utica. The summit level extended from Solsville on the north to the village of Hamilton on the south, a distance upwards of five miles, which level was fed by various reservoirs. A diverting dam was constructed on the north side of this system in such manner that when the water in the feeder was more than four feet high the excess flowed south into the Chenango river, when less than four feet it supplied the summit level and fed the canal extending north from that level to Utica. When more water was supplied than was taken care of by the intermediate locks, spill-ways and paddle gates were provided. Both these means of disposing of excess water were constructed at Solsville where it was discharged into Oriskany creek.
By chapter 404 of the Laws of 1877 the Chenango canal was abandoned except that portion of it on the summit level. At the north end of that level at Sols-ville a permanent bulkhead was constructed and that portion of the canal between that point and Utica was completely abandoned but no change was made in the feeder system of the summit level. At the point where this bulkhead was constructed the Chenango canal had formerly crossed Oriskany creek and was carried over by means of an aqueduct. With the construction
The canal at the summit level was constructed largely through a swamp and at the time it was built a dam and mill were located at the same place as in 1917. The then owner of the property made claim against the state for damages in that the construction of the canal through his swamp took away the water which had formerly reached his mill pond and thus destroyed his power. An award was made to him upon this ground, but obviously in an amount not deemed adequate by the owner, for soon afterwards the legislature directed a further hearing and an award of nearly $10,000 was made to the owner as recompense for destroying his water power. But after the abandonment of the Chenango canal there was apparently no lack of water to operate the mill, even when Oriskany creek south of the aqueduct was without water in the dry season of the year. In other words apparently' the operation of the mill was at times wholly dependent for its supply of water upon the flow from the old Chenango canal.
Upon the trial the state strenuously insisted that there was nothing in the construction of the Chenango canal or the feeder system or in the use of the aqueduct or its abandonment which created any liability for the damages in question. It appeared that prior to the morning of the flood of June 12, 1917, there had been a considerable period of wet weather which had filled the ground with water. Between one and two o’clock in the morning of that day there was a cloudburst over
At one a. m. the caretaker at the plant went home. The water at that time was no higher than usual and no rain was falling. It appeared by the testimony that it would take four and a half hours for flood waters to traverse the distance from the diversion dam at the north end of the feeder system to Smith’s millpond. Inasmuch as the whole feeder system was intact, and in full operation the state urged that claimant’s damages were attributable to a cloud burst against which the state was not an insurer and not to any negligence in the construction or operation of the canal or feeder system, and that such a torrent of water, flotsam, and debris would have wrecked the dam irrespective of the canal. I believe such to be the case and in our findings we have found that the claimant has failed to show that his damage was caused by any negligence of the state, which fact in and of itself would compel the dismissal of this claim.
There is, however, a further reason for exempting the state from any liability for the damages claimed to have been suffered by this claimant, which is as follows:
Chancellor Kent in his commentaries states that title by prescription involves a user that is hostile and continuous for twenty years and upwards and this seems to be the accepted definition. The case of Erwin v. Erie Railroad Company, 98 App. Div. 402; affd., 186 N. Y. 550, applied the doctrine to a state of facts less clear than the one under consideration and the court said respecting a continuous flow of water upon the plaintiff’s land: “ That act constituted an interference
These words might have been applied with propriety to the ease in hand. For seventy-five years the waters of the Chenango canal had been flowing upon the lands of the claimant and his predecessors in title with continued regularity and in greater or less volume, and for twenty-five years those waters had been an essential element in the operation of his water power. Having discharged canal waters into Oriskany creek for that length of time it seems to me the state’s right to continue that flow was acquired by prescription, and such title of the state was not affected by the fact that after its title by prescription had been perfected an excess of water subjected it to liability arising from that cause. For these reasons I advise that the claim be dismissed.
Ackeesoít, P. J., concurs.
Claim dismissed.