65 N.Y. 57, Burbank v. Fay

Citation:65 N.Y. 57
Party Name:GIDEON W. BURBANK et al., Appellants, v. JOHN D. FAY et al., Respondents.
Case Date:January 01, 1875
Court:New York Court of Appeals

Page 57

65 N.Y. 57

GIDEON W. BURBANK et al., Appellants,


JOHN D. FAY et al., Respondents.

New York Court of Appeal

January 1, 1875

Argued Sept. 30, 1874.

Page 58

[Copyrighted Material Omitted]

Page 59

[Copyrighted Material Omitted]

Page 60


J. C. Cochrane for the appellants. Plaintiffs could maintain this action. (Beach v. Child, 13 Wend., 343; Child v. Chappell, 9 N.Y. , 246, 253, 255.) The water taken for the use of the canal and the basin belonged to plaintiffs, and not to the State. (Comrs. Canal Fund v. Kempshall, 26 Wend., 404.) The necessary presumption is that plaintiffs' grantors granted the lands and water necessary for the canals to the State, reserving the use of the basin and other mill privileges, or that the appraisers estimated these advantages in fixing the compensation the State should pay. (Wetmore v. White, 2 Cai. Cas., 87, 105.) The State, having acquiesced in plaintiffs' claim for more than forty years, could not disturb their possession.

Page 61

(2 R. S., 293, § 1, Code, § 75; People v. Clarke, 9 N.Y. , 349.)The canal board have no power except what is conferred by the statute, and had no authority to close this basin. (1 R. S., 229, art. 4; Follett v. People, 12 N.Y. 276; Higgins v. Reynolds, 31 Id., 151; R. and S. R. R. Co. v. Davis, 43 Id., 137; Hicks v. Van Doorn, 42 Id., 47; Phillips v. Thompson, 1 J. Ch., 131.)

Theodore Bacon for the respondents. Plaintiffs could not claim a perpetual right of water from the canal for the use of the basin by prescription. (1 R. S., 248, § § 177, 178; Laws 1820, chap. 202, § 11; Const. of 1821, art. 7, § 10; Const. of 1846, art. 7, § 6; Burbank v. Fay, 5 Lans., 397; Goodtitle v. Baldwin, 11 East, 488.)


There is but a single question in this case. This is, whether the canal board had the legal right to close the basin in Rochester known as "Child's basin." If the right exists, the courts have nothing to do with the expediency of its exercise.

The nature of the interest which the owners of mill seats have in this basin has been before one branch of this court and determined. It is unnecessary further to consider it. (See Child v. Chappell, 9 N.Y. , 246.) It was there determined that, by force of the partition deed, map and acts of the parties, the owners of the mill seats had obtained an easement upon the undivided lands upon which the basin and wharf are situated, for the use and benefit of those parts of the original premises which were set off and released in severalty to the individual proprietors. The undivided lands are the servient tenement, and the released land the dominant. The easement or privilege is permanently annexed to the mill seat lots, and becomes an integral part of the estate in them and of every part and parcel of them capable of being benefited by its enjoyment. The easement follows the estate benefited by it into the hands of any person to whom such estate may be assigned, and it constitutes a perpetual incumbrance

Page 62

upon the lands burdened with it, into whosoever hands they may pass.

The rules thus laid down are decisive of any question which may arise between the mill seat owners and the proprietors of the land on which the basin and wharf are constructed. They, however, have little bearing upon the point now under consideration. This is the duty of the State to continue to supply water to the basin. The owners of the mill seats can maintain no injunction against the defendants unless the State has become bound, either by contract or the rules of prescription, to keep the basin supplied with water, and to allow ingress and egress from it to the canal.

The first point made by the appellants is, that the "hundredacre tract" is a portion of the territory granted by the State of New York to the State of Massachusetts in the year 1786, the State of New York reserving only the right and title of government, sovereignty and jurisdiction.

It is not perceived how this fact can have any influence on the decision of this cause. The State of Massachusetts, under such a transaction, assumed merely the position of a private proprietor. When one State holds lands within the limits of another State, it acquires its estate subject to all the incidents of ordinary ownership. The case of the plaintiffs is no different from what it would have been in case New York had conveyed directly to Phelps and Gorham, the grantees of the State of Massachusetts, instead of conveying to the State itself. (Boggs v. Merced Co., 14 Cal., 375, 376; Pollard v. Hagan, 3 How. [U. S.], 230; 3 Washb. on Real Prop. [ 3d ed.], 170, par. 19.)

The plaintiffs, however, argue substantially as follows: Carroll, Fitzhugh and Robertson, in 1822, were the owners of the "hundred-acre tract," and entitled to the usufruct of the waters of the Genesee river. They had a race-way and flouring mills on the lots now owned by the plaintiffs. They constructed the basin on their own lands--not on the lands of the State--simultaneously with the construction of the canal on the lands of the plaintiffs' grantors. The water taken for

Page 63

the use of the canal, as well as the basin, was exclusively from the Genesee river, and belonged to the plaintiffs and not to the State. It is claimed, therefore, that the plaintiffs do not derive their title from the State, but the State derives its title from the plaintiffs. It is further urged that no legal proceedings, under the rules governing the exercise of the right of eminent domain, having been shown to take the lands from the grantors of the plaintiffs, the presumption is that they gave the State the right to use the water so far as it was actually exercised, and that they retained all their own rights, so far as they have been actually enjoyed. They further insist that an acquiesence by the State for more than forty years in the plaintiffs' user gives a right in the nature of a prescriptive right, which cannot be disturbed.

The plain answer to this general line of argument is, that the water flowing into the basin comes there not by nature, but through the act of the State in constructing the canal. The connection between the canal and the basin is an artificial one, and springs solely from the act of the State. The State authorities do not propose in any way to interfere with the race-way or the lands used for the basin, or the wharf or the mill seat. They only assume to disconnect these structures from the canal, to place a wall between the canal and the basin, the only effect of which is to prevent boats and water from passing along the canal to the basin and wharf, leaving all the structures of the plaintiffs' grantors intact. The State was the sole author of the power of boats to pass to and from this basin into the canal. There seems to be no reason in the nature of the relations of the parties why the artificial connection between the canal and basin should be continued against the will of the State, expressed in due form of law. I see no force in the argument that because the State uses some of the water of the Genesee river therefore it must allow boats to pass into the basin. The premise does not sustain the conclusion.

It is, however, said that the plaintiffs have some equitable claims under the provisions of the statute under which land

Page 64

was taken for the use of the canal. By the act of 1817 (p. 302, § 3) the canal commissioners were authorized to take possession of any lands, waters and streams necessary for the prosecution of the improvement intended by the act, and to make all such canals, dykes, feeders, dams and other devices as they should think proper for making said improvements, doing, nevertheless, no unnecessary damage. There was a further provision that in case any lands, streams or waters should not be given or granted to the people of the State, the commissioners were required to apply to the justices of the Supreme Court for the appointment of appraisers. The appraisers were required to estimate the damages to the owners over and above the "benefits and advantages accruing to them," and were to certify their determination as to those several premises which would suffer no damage or would be benefited more than injured by or in consequence of the works aforesaid. It is said on behalf of the plaintiffs that it must be presumed that the appraisers estimated the advantages of the basin, etc., in fixing the compensation that the State should pay.

I cannot assent to this view. The "benefits and advantages" intended by the statute were not those derived from a direct use of the waters of the canal in filling the basins and slips with water, but the indirect advantages to be obtained by rise of values, etc. I am fortified in this conclusion by another statute, which specifically provides "that no person, without the written permission of a canal commissioner, shall construct any wharf, basin or watering place on any canal, or make or apply any device whatever for the purpose of taking water from a canal; and every wharf, basin, etc., constructed with such permission shall be held during the pleasure of the canal commissioners and subject to their control." (Session Laws 1820, chap. 202, § 11.) These statutes must be construed together. Both were in force when the canal was constructed. It cannot be supposed that the legislature intended by the law of 1817 to have the State bound inexorably and forever to continue a state of things which by the

Page 65

law of 1820 it provided should be precarious and subject to the commissioners' control.

The only really plausible point in the plaintiffs' favor is that of prescription. Their grantors and others have used this basin for upward of forty years without hindrance. The State has more or less regularly supplied the basin with water from the canal. Buildings...

To continue reading