Chase-Hibbard Milling Co. v. City of Elmira

• Decision Date: 04 March 1913
• Citation: 207 N.Y. 460,101 N.E. 158
• Parties: CHASE-HIBBARD MILLING CO. v. CITY OF ELMIRA.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 460

101 N.E. 158

CHASE-HIBBARD MILLING CO.

v.CITY OF ELMIRA.

Court of Appeals of New York.

March 4, 1913.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the Chase-Hibbard Milling Company against the City of Elmira. From a judgment of the Appellate Division affirming a judgment for defendant (143 App. Div. 971,127 N. Y. Supp. 1115), plaintiff appeals. Affirmed.

Henry Selden Bacon, of Rochester, for appellant.

Michael Danaher, of Elmira, for respondent.

GRAY, J.

This action was brought by the plaintiff to have the city of Elmira restrained from diverting the waters of the Chemung river into a tailrace, or channel, by which the waters passing through the plaintiff's mill were carried away. The facts are stated in findings by the trial court, and are conclusively established by the unanimous affirmance of a judgment which dismissed the plaintiff's complaint upon the merits. No opinion was expressed at the Appellate Division.

In 1813 the Chemung river, then known as the Tioga river, was declared to be a public highway by an act of the Legislature, which is still in force. In 1824 a dam was authorized by legislative enactment to be built across the north branch of the river, in the village of Newton, which thereafter became the present city of Elmira. One Baldwin, in whose behalf the Legislature had acted, erected a gristmill in 1827, and since that time a dam and a mill have been maintained on the original sites. The plaintiff, through mesne conveyances, in 1890, acquired the title to the properties, and has operated a gristmill, using the water power supplemented by a steam plant. The mill site is at the western extremity of an island in the river, and within the limits of the city, which was commonly known in earlier times as Davis Island, and in later times as Clinton Island, and which divided the river at that point into two channels, to the north and south of the island. Its westerly end is owned by the plaintiff for a distance of 200 feet, and the easterly portion is owned by the city. When the dam was originally constructed, a wall, extending a short distance easterly from the mill, guided the discharge of water from the mill wheels into the river. Subsequently the plaintiff's predecessors in title extended this wall, through a construction of piles and planking and parallel to the north bank of the river (all of which north bank is covered by buildings fronting on Water street of the city and built back to the river, for about 250 feet, or some 50 feet beyond the boundary line of the mill property. Later the extension was continued further by an earth embankment, which, at the time of the plaintiff's purchase of the property, had reached to the bridge carrying Main street over the river, a distance of about 700 feet from the mill. After its purchase the plaintiff extended the embankment some 200 feet eastwardly from the bridge. This embankment, substantial in width and in height throughout the greater part of its length, and at the easterly end sloping to the level of the bed of the river, was added to, from time to time, by depositing upon it gravel and rubbish taken by the plaintiff and its predecessors from the confined portion of the river, which constituted the tailrace of the mill. The northerly branch of the river, now in question, had been so affected by the action of the river waters and ice in creating gravel bars in the part south of the tailrace embankment that it became filled up, and its channel was shifted more and more to the south. Prior to 1902 or 1903, there was a main channel of the river practically running parallel to the embankment, which, from a point a little westwardly of the Main street bridge, flowed in a northeasterly direction under the bridge and into the tailrace. This channel, in the course of time changing its course southwardly, bore upon the second pier of the bridge with such force as to cause a deep hole in the river bed at that point, and to seriously threaten the foundations of the pier. This bridge, constructed in 1874, was a muchtraveled city highway, and the defendant undertook to repair the damage and to protect against its recurrence. The finding is that, ‘for the purpose of turning the current from the head of the pier and enabling the defendant to more economically and expeditiously fill the hole,’ the defendant excavated the bed of the old main channel, which had filled up with gravel. This excavation was made, practically, at the same depth as the old bed, and it ended eastwardly of the end of the tailrace embankment. In order to turn the river current into this excavated channel, a temporary obstruction of posts and planks, which we might describe as a wing dam, was placed across that part of the river. The effect of thus diverting so much of the river waters and of discharging their volume into the channel made by the tailrace was to lessen the current in the raceway and to increase the depth of water on the plaintiff's wheels some four inches, thereby lessening the water power.

[1][2] The facts, which necessarily have been stated at this...