57 N.Y.S. 102 | N.Y. App. Div. | 1899
The plaintiff, in 1892, for the purpose of supplying the village of Port Henry with pure and wholesome water, acquired of the owner certain springs, and diverted the water thereof from its natural course. These springs discharged into a stream flowing through the defendant’s land, and furnishing the power to operate his
It is probably true that some evidence was received, which, upon a trial before a'jury, would have been excluded as incompetent. The defendant adduced evidence tending to show the situation and character of his mill, its capacity for grinding grain, its situation with respect to custom, the sources and amount of his custom, the income he derived from it, the extent of Ms water power before the diversion, its necessity to the continuous operation of his mill, the amount of the water diverted by the plaintiff, and the effect of the diversion upon the water power, and to some slight extent his consequent loss of custom. It was proper that the commissioners should know these facts. They tended to show that the defendant’s claim for compensation was substantial, and enabled them to form some estimate of its amount, and to give proper effect to the testimony which specified the amount. The plaintiff diverted the water in 1892, and the proceedings to ascertain the just compensation due the defendant were had in 1898. The defendant was also permitted to show, not only what amount of grain the water diverted could grind, but what his profits upon such grinding would be. TMs was speculative and uncertain, because it assumed that he would have the grain to grind, would grind it, would make the estimated profits, and that at no time within the six years would his stream be sufficient, in the absence of the diverted water, to operate Ms mill to its full capacity. But this was only one item among many proper items of evidence, and it does not follow, because a court might withhold it from a jury, that it was reversible error for the commissioners to receive it. Unless the award; and the record lead us to suppose that the commissioners gave it improper effect, we should not reverse the order of confirmation. The commissioners chosen to ascertain the compensation to be paid are usually men of high character for integrity and sound judgment. If not agreed upon by the parties, they are generally selected by the court from a number of men who have passed without challenge the rigid scrutiny of the parties interested. They are superior to the average juryman, and are less liable to be misled by extravagant estimates of values based upon false or speculative theories. This, and the fact that they personally view the premises (Perkns v. State, 113 N. Y. 660, 21 N. E. 397), incline the court to confirm their award unless the case discloses that the commissioners proceeded upon an erroneous principle, or otherwise affords reasonable ground to suppose that it Is unjust.
The defendant adduced evidence tending to show the value of the mill in 1892, and its lessened value in 1898. The plaintiff gave evidence tending to show that since 1892 the value of real estate in and
The order of confirmation should be affirmed, with costs. All concur.