145 N.Y.S. 567 | N.Y. App. Div. | 1914
Lead Opinion
Tn 1*765 Philip Skene obtained from the Crown of Great Britain the grant of about 25,000 acres of land lying in the northern part of what is now Washington county. The King in his royal patent made these reservations: “Excepting the said Wood Creek which is reserved as a common highway for the benefit of the publick. ” Also ‘ ‘ except Wood Creek as aforesaid, for a common and publick highway.” At or near the site of the falls in Wood creek the Whitehall Water Power Company, Limited, and its predecessors in title have, for many years, maintained a dam across the creek. This dam was destroyed in 1910 by the defendant herein, a foreign corporation pursuing the work of constructing a section of the barge canal under contract with the State of New York. Neither the dam nor the bed of the creek had been appropriated by the State at the time of the alleged trespass. There are two plaintiffs herein, but in speaking of the “plaintiff” I shall refer to the Whitehall Water Power Company, Limited, the alleged owner of the premises.
In Champlain Stone & Sand Co. v. State of New York (142 App. Div. 94), a case decided by this court and unanimously affirmed by the Court of Appeals (205 N. Y. 539), it was determined that the bed of Wood creek did not pass to the grantee by the “Artillery Patent” but was retained by the Crown of Great Britain, and, as a result of the Revolutionary war, became vested in the State of New York. Again, in Johnson v. State of New York (151 App. Div. 361), under this very “ Skeeneborough Patent,” the title to Wood creek was declared to be in the State. These adjudications settle the law and no further discussion as to the effect of the reservations in these patents is necessary.
Philip Skene was a Tory and a traitor. His lands in the State of New York were forfeited by attainder, were confiscated and sold. The Commissioner of Forfeitures who conducted the sale and executed the deeds derived his authority from chapter 64 of the Laws of 1784. That statute, so far as it confers authority upon the Commissioned to sell, reads: “That it shall * * * be lawful * * * for the said Commissioner * * * to sell and dispose of all lands, tenements, hereditaments and real estate * * * heretofore confiscated and forfeited to the People of this State * * *. ” The deed which Webster, the Commissioner, executed, undertook to, and, so far as the form goes, it did convey a good, perfect and complete title to the premises described. So far as the statute authorized the conveyance of the lands described in the deed the conveyance was perfect and the State warranted the title. But the Commissioner undertook, apparently, either purposely, or through ignorance or mistake, to convey Wood creek; and it is contended by the plaintiff that this conveyance gave to the grantee a good and perfect title to the bed of the stream. The plaintiff’s position is that Webster’s deed, even though he was acting beyond the scope of his statutory authority, was valid and sufficient and was recognized as such by the State and confirmed by subsequent statutes.
The Commissioner could only do that which the statute authorized him to do, and the subsequent ratification of his acts by statute was only a ratification of his lawful acts. The State if it had intended to do so, might have ratified and validated Webster’s attempt to deed away the bed of Wood creek, but these statutes of ratification on which the plaintiff relies are general in their terms and expression. They do not specifically confirm the deed of Wood creek. Therefore, we must construe these confirmatory statutes as applying only to the authorized acts of Webster. This construction is forced upon us by the further fact that specific statutes of the State (Laws of 1801, chap. 186; Revised Laws of 1813, chap. 4.7; Laws of 1879, chap. 272;
But the plaintiff further claims that the State is estopped from making any claim to the premises in question. We think this contention is unsound. That a sovereign State may, under certain circumstances, like an individual, be estopped, may be admitted, but the State can never be estopped by the unauthorized acts of its agents. (People v. Ostrander, 144 App. Div. 860; Wells v. Johnston, 171 N. Y. 324; Miller v. Mayor, etc.; 3 Hun, 35; Indiana Central Canal Co. v. State, 53 Ind. 575.) The acts of the State itself, that is, the statutes relative to forfeited lands, might operate as an estoppel were they intended to be confirmatory of Webster’s unauthorized acts, but, as we have seen, they referred only to his lawful acts. Ho estoppel was pleaded by the plaintiff, but, assuming that the plaintiff could avail itself of the doctrine of estoppel without pleading it, yet, under the circumstances presented here, we hold that the State was not estopped.
It is perhaps well to refer to the plaintiff’s apparent consent to the alleged trespass. The evidence is rather meager on this subject and not altogether clear, but it appears that the original plans of the State did not contemplate a removal of
The supply of water power to the plaintiff’s - mill has not been depleted but greatly improved by the destruction of the old dam and the erection of the new one. Neither has the State attempted to cut off the plaintiff from the use of this water power; it may perhaps attempt to do so in the future. But no issue as to the prescriptive rights of the plaintiff in the • waters of Wood creek is presented by this appeal, and we express no opinion on that subject.
The judgment should be reversed, with costs.
The findings of fact of which we disapprove are those numbered 8, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 31, 33, 34.
In addition to the findings of fact of which we approve made by the trial court as disclosed in the decision and in the findings made at the request of the defendant we adopt as further find
All concurred, Kellogg, J., concurring in result in memorandum, in which Lyon, J., concurred.
Concurrence Opinion
I cannot agree that the plaintiff had no legal interest in the falls, the dam and water power. It is true that the words “ excepting the said Wood Creek which is reserved as a common highway for the benefit of the publick,” and the words “ Except Wood Creek as aforesaid, for a common and publick highway ” in the Artillery patent are an exception and not a reservation and that the title to the bed of the creek did not pass thereby. (Champlain Stone & Sand Co. v. State of New York, 142 App. Div. 94; affd., 205 N. Y. 539.)
In Johnson v. State of New York (151 App. Div. 361) we applied that decision to this Skeeneborough patent. In those cases the interpretation of these clauses rested solely upon the patent itself and the fact that Wood creek flowed through the forest and was used as a common highway for the passage of canoes and rowboats.
Here the circumstances leading up to the patent and under which it was issued indicate clearly what the words forming the exception meant to the parties to it, with reference' to the falls, the water power, the dam and the bottom of the creek upon which it rested. Mere words in themselves have but little meaning; it is the circumstances under which they are used and the subject to which they refer that give them real meaning and force. An expression must be construed with reference to the time and the circumstances of its use.
Major Skene, encouraged by Sir Jeffrey Amherst, commander-in-chief of His Majesty’s forces in America, in 1760 undertook the establishment of a settlement at Wood creek, near the falls, and at great expense settled and maintained about thirty families there. During his absence on the expedition against Martinique and Havana all of them except fifteen abandoned the settlement. Upon his return in 1763 he memorialized the Crown to grant him a patent of the settle
At the time of the patent, the falls in the creek and the water power and dam were very important for two reasons: (1) They obstructed the navigation of the creek so that the canoes and rowboats from Lake Champlain could only get into the creek by being carried around the falls. The falls had for all times preceding formed such an obstruction. The highway at the falls was not over the falls but was the “ carry ” around them. While the falls made it necessary to carry the canoes and boats around them, the dam at the falls was a benefit to the navigation above, as it backed up the water in the shallow stream. (2) They gave power to the sawmill and the sawmill made possible the settlement, and the establishment of a settlement was the reason which impelled the King to grant the patent. We, therefore, have the falls, the dam, the water power and the mill as the things which • made the success of the settlement possible. When the patent is laid upon the ground it fits well around them, and gives life and meaning to the grant and the exceptions with reference to Wood creek. The falls are at the point, or just above the point, where Wood creek flows into Lake Champlain. The ‘1 Wood creek ” which was excepted from the patent for the purposes of a public highway, evidently was the creek above the falls which was used and was useful for navigation, and not the part used by Skene in forwarding the enterprise which was the
After Major Skene was attainted of treason the Commissioner of Forfeiture proceeded to sell the forfeited lands. After the most of them had been sold, he reported to Governor Clinton a description of the unspld lands with an estimate of their value, among which we find “Lot No. 23, 500 acres, with falls, equity of redemption, value supposed to be 6,000 pounds,” also “ Lot No. 24,171 acres adjoining the falls, 400 pounds. ” Thereafter the 500 acres and the falls (a lot described as containing 8 acres) were sold to the predecessors in title of the plaintiff for 2,750 pounds. The sale indicates that the Commissioner estimated the property at about double its actual value. The 170 acres next adjoining the 500 acres upon the creek above
It is clear that the Commissioner of Forfeiture and the purchaser from him “ supposed ” that the falls, dam and water power were forfeited, and on account of such supposition the Commissioner exacted, and the purchaser paid, the State $8,000 or $10,000 for a conveyance of them. We cannot say what deeds and documents relating to this property may have been carried away by Major Skene. Under such circumstances, when the purchaser and his successors in title have been in possession ever since, using the falls and dam and water power for mill purposes without any practical interruption, the State is not in a position to claim that the purchaser did not acquire the title. The claim now made that the Commissioner had no authority to deed the falls is purely technical, and the State cannot be heard in making such a claim so long as it retains the money which it received for them. It is to be observed that the conveyance of the falls, carrying with it the dam and waterpower,
Tf we were dealing with a large river capable of navigation, as we understand the term, and not 'with a little creek about ten to twenty feet wide, and perhaps from six inches to three feet deep in places, we might say that a grant of the creek was subject to a right of the public to navigate it, and that, therefore, the plaintiff would not have an absolute unqualified title to the falls and the place where his dam had stood for so many years. But if we assume that the same rule applies to this little stream the plaintiffs’ situation is not materially changed. They at least acquired the right to use the falls and water power and maintain their dam for the purposes for which they were using them; subject, however, to the right of the State to use the creek as a public highway. This did not authorize the State to divert the waters from the creek or to destroy the dam. The canal itself, which now forms the public highway at this place, does-not go through the creek, the dam or the falls, but alongside of them, substantially replacing for the purpose of navigation the old “ carry.” Their ' destruction was not necessary for the purpose of navigating the creek, but resulted from the fact that the State deemed it desirable to erect a new dam in place of the old one for water storage and as a convenience.
We have considered the various elements going to make up the right of the plaintiffs to maintain a dam at this place. It is unnecessary to determine, and we will not determine, the exact nature of plaintiffs’ rights. It is sufficient to say that they had a right to maintain a dam there and use the water for their power purposes.
Up to the time the action was brought the State had done no act in derogation of the plaintiffs’ rights. It destroyed ■ their dam and water power but erected a larger dam and gave them a better water power. This was done with their consent, although they protested against the actual work which had been invited by them, in order to save their legal rights. Undoubtedly the persons who were representing the State when the plaintiffs consented to a change of the plan of the
Lyon, J., concurred.
Judgment reversed on law and facts, .with costs, and complaint dismissed, with costs.
The findings of fact of which the court disapproves are those numbered 8, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 81, 33, 34.
In addition to the findings of fact made by the trial court of which this court approves this Court adopts as further findings of fact the defendant’s requests to find as indicated in the record and numbered 14, 15, 16, 18, 19, 22, 24, 27, 31, 33, 35, 36, 37, 38, 40, 41.