128 N.Y. 345 | NY | 1891
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *347 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *349 The defendant James Shanahan, as superintendent of public works, in behalf of the state, entered into a contract with the defendants Fuller and Albaugh, for the performance of certain work in dredging and otherwise improving the channel of Seneca river and old Bear race, at Waterloo. The contractors had entered upon the work when this action was commenced, and both they and the superintendent of public works, were enjoined from proceeding therewith. And by the final judgment in the action this injunction against them, and all persons acting under them, is made perpetual. This appeal involves an examination of the reasons and grounds upon which the operations of the state, acting through one of its officers, and in pursuance of legislative direction, have been arrested at the suit of the plaintiff. The judgment in this case decides that the improvement is not authorized by law and that the consummation of the work contemplated will injuriously affect certain property rights of the plaintiff. It is necessary, at the outset, to get as clear an idea as possible in regard to the nature, origin and extent of these rights in order to get a more comprehensive view of the questions involved in the controversy.
The plaintiff is a domestic manufacturing corporation engaged in the manufacture of woolen goods on an extensive scale at Waterloo, deriving the power for the operation of its machinery from the waters of Seneca river. It was incorporated in the year 1836, but the water-right and privileges which it owns and which it is claimed are to be affected by the *352
acts of the defendants, existed long prior to that date. In the year 1802 the state conveyed, by letters-patent, 640 acres of land to John McKinstry on the north shore of the Seneca river, where is now the site of the present village of Waterloo. In December, 1807, he conveyed the land to one Elisha Williams, who erected one or more mills on the site now occupied by the plaintiff's factories, adjoining or near the river. The motive power for these mills was furnished by a race or canal constructed by Williams from the river, on the north side and near the upper end of what is now Big island, which divides the flow of the water of the river, the main current being south of the island and on the opposite side from the race. The mills, so erected by Williams, were in operation in the year 1813 when the legislature, by special act, incorporated the Seneca Lock Navigation Company. (Laws 1813, chap.
With the rights of the parties thus vested and defined, the legislature in the year 1825 authorized the construction of the *353
Cayuga and Seneca canal by the state, and for that purpose authorized the purchase of all the rights and privileges of the navigation company. (Laws 1825, chap.
Subsequently the state found it necessary to enlarge the capacity of the canal which occupied the old mill-race, by making it deeper and wider. The last improvement in this respect was authorized and executed under chapter
Thus far our attention has been directed to the origin, nature and extent of the property rights on the north side of the river, as developed since the grant from the state in the beginning of the present century. In order to appreciate and understand the motive which probably inspired or stimulated the legislation which must be hereafter considered, and which is the real point of contention between the parties, it is necessary to notice other and what, perhaps, might be called rival interests and rights which, during the same period, were developed on the south or opposite side of the river, and which must have been materially affected by the operations of the state and of the corporation, the rights of which the state acquired on the other shore of the stream.
About the year 1798, one Samuel Bear settled on lands on the south shore, now the site of South Waterloo, or that part of the village which is south of the river. The Seneca river flows from the outlet of Seneca lake, at the village of Geneva, easterly through the villages of Waterloo and Seneca Falls, and finally empties into the Oswego river. It divides the village of Waterloo, one ward being south of the river and the other north. In the year 1804, the state conveyed one hundred acres to Bear, lying along and south of the river, with the water-power and privileges connected therewith. He also dug a race and erected a mill on his land. The use by Bear of the water of the river for manufacturing purposes, on the south side through this race, probably antedated a similar use by Williams on the other side, though this fact is not found and in our view is not very material. It is the channel known in the case as Bear race, and entered the river near the easterly end of Big island and a considerable distance easterly or below the point where Williams tapped the river with his race on the opposite side. The defendants Sweet, Mongin Cook are the owners of this race, water-power and mill, having derived title thereto through mesne conveyances from Bear. The channel of the river was originally along and near the south shore, so that when Bear built his mill, the facilities for obtaining a proper supply of water were apparently *355 as good on his side of the river as on the other. But, subsequently, as we have seen, the navigation company and later the state itself diverted the water at a point above into the canal on the north shore, and the plaintiff's mills, using the surplus, must have had a better supply than the mills on the other side. In fact the plaintiff has succeeded in this case in the courts below, on the ground that the power of the legislature to appropriate money has been used for the purpose of securing to certain mills on the south side of the river a greater supply of water, which must necessarily diminish the surplus from the canal, and thus take property from the plaintiff for the use of persons on the opposite side of the river.
This view of the situation and this conflict of private interests will enable us to consider the legislation which the plaintiff has thus far successfully assailed.
By chapter
"An act to provide for the dredging and excavating the channel of Seneca river and the old Bear race in the village of Waterloo to facilitate the passage of canal boats.
"Approved by the Governor May 18, 1888. Passed, three-fifths being present.
"The People of the State of New York, represented in Senate and Assembly, do enact as follows:
"SECTION 1. The superintendent of public works is hereby authorized in his discretion to expend the fifteen thousand dollars, or so much thereof as may be necessary, which was *356 appropriated by chapter one hundred and thirteen of the Laws of eighteen hundred and eighty-seven and directed therein to be applied to improvements on the Cayuga and Seneca canal, toward dredging and excavating the channel of Seneca river, from its intersection with said canal in the village of Waterloo and the old Bear race, and thence toward dredging and excavating said race to Washington street in said village, so as to admit the passage of canal boats therein from said canal.
"§ 2. This act shall take effect immediately."
Pursuant to the authority thus given, the defendant Shanahan, as superintendent of public works, advertised, as required by law, for proposals to perform the work contemplated by the legislature in the passage of the act. This resulted in a contract with the state for the performance of the work by the defendants Fuller and Albaugh, in conformity with a map and plans prepared by the state engineer. After entering upon the performance of the contract they were enjoined by order granted in this action, and Sweet, Mongin Cook, the parties who own Bear race, were also made parties to the action upon the ground that they were to be the real beneficiaries of the improvement, although there is no allegation that they had done or threatened any act in furtherance of the work.
On the trial of the action at Special Term the court found the following facts in addition to those already stated: That the Seneca river is a navigable public highway, and that its channel is south of Big island; that Bear race was private property, and that neither it nor the channel of the river to its intersection with the canal where the dredging was to be done and the improvement made were any part of the canal system; that the race was about twenty feet wide and three and a half feet deep, and that, by the improvement, it was to be made wider and deeper; that the plaintiff is entitled to all the surplus water that runs through the canal; that chapter
The case, therefore, involves, among other questions, the validity of an act of the legislature, always important. The court has said upon a recent occasion that "only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable grounds will an act of the legislature be declared void." (People v. Budd,
Before proceeding to examine the grounds upon which a statute has been held void, in this case it may be well to observe that there can be no dispute as to the power of the legislature to take private property for other than a public use without the consent of the owner. That, of course, cannot be done, either with or without compensation. Nor can it be denied that, generally, whether the use to which private property may be devoted by legislative power is in fact public or private, is a judicial question, and the courts are not concluded by any declaration of the law-making power as to the nature of the use. (Matter of Niagara Falls Whirlpool R. Co.,
So, too, it has been held that a legislative act, ostensibly for the protection of the public health, but which deprives the citizen of liberty or property, may be subjected to judicial scrutiny for the purpose of ascertaining whether its provisions really relate to and are in fact convenient and appropriate to promote the public health. The determination of the legislature on this point is not final or conclusive. (Matter of Jacobs,
It may also be regarded as settled that when the legislature appropriates public money for some improvement, the courts *358
may inquire whether the improvement is for a purpose which is public, or one merely private or local, and whether the bill, if the purpose was private or local, received the assent of two-thirds of the members of each house of the legislature, as required by the Constitution. (People v. Allen,
But, even upon the theory adopted by the courts below and upon the facts developed at the trial and found in the record, it is by no means clear that the act is invalid under section 9 of article 1 of the Constitution, which requires a two-thirds vote for the appropriation of money for a local or private purpose. The state had diverted the waters of the river into the canal and to that extent deprived the riparian owners below on the south side of its use. Assuming that the purpose of the act was, as claimed, to restore a portion of the water thus diverted to its original channel and to the use of the owners who had been deprived of it by the act and authority of the state, who can say that an expenditure for that purpose is private or local within the meaning of the Constitution? If the state, in carrying out a policy of justice through its legislature, appropriates money to pay a debt or to repair an injury inflicted upon an individual or a locality, obligatory upon it in honor and justice, that is but a part of its legitimate functions and duties as a sovereign and the purpose in such case would seem to be public. (Morris v.People, 3 Denio, 399.)
So that, whether the statute is tested by reference to its language alone or by a consideration of the facts established, it *361
was legally enacted. Moreover it should also be observed that the complaint contains no allegation that the statute was not constitutionally enacted, or that it did not receive the requisite vote or that it is private or local, and the evidence upon which these facts were found and the finding itself were excepted to. It has been held that when the objection to the validity of a law arises out of the failure of the legislature to comply with the procedure pointed out by the provisions of the Constitution, which is not apparent upon the face of the act itself, the facts must be distinctly pleaded. (People ex rel. v. Supervisors of Chenango,
But as this point was not specifically raised at the trial and is not discussed upon the briefs of counsel, we prefer to put our decision on other grounds. The courts below have also held that the act is invalid because its effect is to take the plaintiff's property for private purposes. This proposition is based solely upon the fact that the improvement, by deepening the channel of the river and enlarging the race, will divert water from the canal and restore it to the channel of the river, the use of which the plaintiff has enjoyed without question for more than twenty years. The use by the plaintiff of the surplus water beyond what it was entitled to during the occupation of the canal by the navigation company, however long continued, and whether adverse or by permission, could not impair the rights of the state. (Burbank v. Fay,
The state was at liberty to withdraw the surplus, so far as it came from the enlargement of the canals of 1857 and prior thereto, so long as the plaintiff could use the quantity of water secured to its grantors by the law under which the navigation company acquired the race. It is not claimed that this right was threatened or could be impaired by the improvement. The state could restore water which it diverted from the natural channel without furnishing the plaintiff with any legal ground of complaint, even though it was for the purpose of delivering it to the defendants or any other riparian owner on the south side. So long as the legal rights of the plaintiff, as *362
between it and the state are respected, it cannot complain if the state is doing something with its own property that may possibly benefit others. If the state has the right to diminish the supply of water in the canal at all, and that right is not denied, then the motives that may underlie the act are not material. The reasons that move the public authorities do not concern the plaintiff. So we conclude that the plaintiff has no property right in the use of the surplus water in the canal, as increased by the enlargement made by the state from 1840 to 1857, that can be impaired by the execution of the work contemplated by the statute. But if the plaintiff could establish any right to the use of the increased supply of water furnished by the state in the process of enlarging the canal from time to time, the most that the plaintiff could then claim would be that the improvement would result in a consequential injury which might form the basis for a claim for damages or compensation before the tribunal which the state has authorized to hear and determine such claims. It would furnish no ground for arresting the work of improving or enlarging the canal in such manner as the legislature might determine to be for the public good. (Atwater v. Trustees,etc.,
The execution of the work, authorized by the statute, by the the superintendent of public works, or the contractor acting under his authority, does not involve the taking of any of the plaintiff's property for any purpose, public or private.
But Bear race, from its intersection with the river to Washington street, which the act also provides for dredging and excavating, is the private property of the defendants Sweet, Mongin Cook. If that has been or is to be taken, within the meaning of the Constitution, that is a question which the owners alone can raise. It does not in any legal sense concern the plaintiff, if the defendants see fit to renounce a constitutional provision, intended for their own benefit. (Town of Pierrepont
v. Loveless,
The expenditure of public money for the purpose, in part at least, of enlarging a private mill-race, furnishes the basis for the argument, in behalf of the plaintiff, to show that the appropriation is for a private or local purpose. But we have no right to assume, as this argument does, that the state will never acquire the title to the race or the right to its use for the purposes of navigation. The title, or the right to its use, can be acquired at any time and need not be obtained in advance. Property required by the state for canal purposes always has been and may still be taken in a summary way, without the aid of any judicial proceeding. The constitutional provision requiring the compensation to be made to the owner, to be ascertained by a jury, or by commissioners appointed by the court does not apply to such a case. (Const. art. 1, § 7.) The state may take possession, go on with its work and await the claim of the owner for compensation. (Marks v. State,
In this view we have no right to say that when the authorities of the state were restrained, they were not proceeding, in good faith, to make an improvement to the canal system. Moreover it must be noted here that by chapters
The judgment of the General and Special Terms should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.