City of New York v. Samuel Pine

• Decision Date: 07 April 1902
• Docket Number: No. 491,491
• Citation: 46 L.Ed. 820,185 U.S. 93,22 S.Ct. 592
• Parties: CITY OF NEW YORK and Bird S. Coler, as Comptroller Thereof, Petitioners , v. SAMUEL PINE and Frederick Muller
• Court: U.S. Supreme Court

185 U.S. 93

22 S.Ct. 592

46 L.Ed. 820

CITY OF NEW YORK and Bird S. Coler, as Comptroller Thereof, Petitioners,

v SAMUEL PINE and Frederick Muller.

No. 491.

Argued February 25, 26, 1902.

Decided April 7, 1902.

This was a suit commenced in the circuit court of the United States for the southern district of New York by the appellees, as plaintiffs, for an injunction restraining the city of New York from maintaining a dam on the west branch of Byram river and diverting the waters thereof from their natural flow through the farms of plaintiffs.

The facts are these: Byram river is a non-navigable stream of fresh water flowing into Long Island sound. Tracing its source up stream from the sound, for a short distance it forms the boundary between New York and Connecticut, then deflects to the east, and for some 5 or 6 miles is within the state of Connecticut. It there divides into two branches, the east branch being entirely within the limits of that state. The west branch, which is the longer of the two, extends into the state of New York. A few hundred feet from the state line the city of New York, under legislative sanction, commenced the construction of a dam, with a view of appropriating part or all of the waters of this west branch and using the same for the supply of the city. The watershed of this west branch above the dam, the territory from which the water sought to be appropriated is all drawn, is wholly within the limits of the state of New York. The plaintiffs own farms situated on Byram river in Connecticut, below the junction of the two branches. In their bill they alleged, among other things:

'Fourth. Your orators further aver that the defendant began about two years ago the building of a dam across the said west branch of said Byram river, about 500 feet north of the Connecticut line, and is now building said dam and it is now near completion, and your orators are informed and believe that the said defendant intends to divert or cause to be diverted the water of said west branch or some of it from the natural channel thereof, and intends to divert or cause the same to be diverted from flowing through its natural channel into and through the state of Connecticut, and by, through, and over land owned by your orators.

'Fifth. Your orators further aver that they as riparian owners of land in the state of Connecticut, on said Byram river or on the west branch thereof, are each of them accustomed to use the water of said river, . . . and that the flow of said river would be materially lessened by the diversion of the water of the said west branch or any part thereof, and that they, your orators, and each of them, would be damaged in the sum of twenty-four hundred dollars ($2,400) and more.'

The answer of the city admitted the building of the dam, although averring that it was not near completion, and would not prevent the natural flow of the west branch for at least a year; admitted its intention to appropriate some or all of the water; alleged that such appropriation would cause little or no injury or damage to the plaintiffs, and denied on information and belief that the premises of either would be damaged in the sum of $2,400; averred that the building of the dam was of great and permanent benefit to the citizens and residents of New York, and that it was and always had been able and willing to pay any damages that the complainants might suffer from being deprived of the natural flow of the water. Testimony was taken and the case submitted to the court upon pleadings and proofs. That the dam as completed, and it was completed when the testimony was taken, would work a diversion of a considerable portion of the water in its natural flow, and that the property of plaintiffs was damaged by such diversion, was shown by the testimony and found by the court, although whether such damage amounted to more than $2,400 each was perhaps not established by the testimony, and certainly was not found by the court. The cost of the dam proper was about $45,000, though the city had expended for land and damages several hundred thousand dollars. It also appeared that several thousand people in the city of New York were dependent upon this water supply. The circuit court, after finding the fact of damage, held that a court of equity had no power to ascertain and order the payment of damages, but that it might delay the issue of an injunction so as to give the parties an opportunity to agree in respect to the amount of compensation, and in an opinion, filed on June 27, 1900, ruled that a decree would be entered on November 1, 1900, if the parties had not come to an agreement. Thereafter, no agreement having been made, a decree was entered as follows:

'That the complainants in this suit and each of them are entitled to the injunction order of this court restraining the defendant, its successors and assigns, their and its officers, agents, and employees, each, all, and any of them, from diverting the water or any part of the water of the west branch of the Byram river or any part of the water of the Byram river, or in preventing in any way said water or any part thereof at any time from flowing through its natural channel, before, at, and below the junction of the two branches of said river; and

'It is further ordered, adjudged, and decreed that the defend- ant, its successors and assigns, their and its officers, agents, and employees, each, any, and all of them, be and they and each of them are hereby perpetually enjoined from diverting the water or any part of the water of the west branch of the Byram river, or any part of the water of the Byram river, or in preventing in any way said water or any part thereof at any time from flowing through its natural channel, before, at, and below the junction of the two branches of said river.'

On appeal to the circuit court of appeals for the second circuit this decree was, on October 30, 1901, affirmed by a divided court. Thereupon the case was brought here by certiorari. 183 U. S. 700, post, ——, 22 Sup. Ct. Rep. ——.

Messrs. George L. Rives, George L. Sterling, and John Whalen for petitioners.

Messrs. Charles C. Marshall, Stephen G. Williams, and Marshall, Moran, & Williams for respondents.

Mr. Justice Brewer delivered the opinion of the court:

Many interesting question are involved in this case, but we think it unnecessary for the present at least to decide more than one. We assume, without deciding, that, as found by the circuit court, the plaintiffs will suffer substantial damage by the proposed diversion of the water of the west branch. Also, without deciding, we assume that, although the west branch above the dam and all the sources of supply of water to that branch are within the limits of the state of New York, it has no power to appropriate such water or prevent its natural flow through its accustomed channel into the state of Connecticut; that the plaintiffs have a legal right to the natural flow of the water through their farms in the state of Connecticut and cannot be deprived of that right by and for the benefit of the city of New York by any legal proceedings either in Connecticut or New York; and that a court of equity, at the instance of the plaintiffs, at the inception and before any action had been taken by the city of New York, would have restrained all interference with such natural flow of the water.

Notwithstanding these assumptions we are of opinion that the decree ought not to stand, and for these reasons: This is not a case between two individuals in which is involved simply the pecuniary interests of the respective parties. On the one side are two individuals claiming that their property rights are infringed, rights which can be measured in money, and that not a large sum; on the other, a municipality undertaking a large work with a view of supplying many of its citizens with one of the necessities of life. According to the averments in the bill the city had been engaged in this work for two years, and had nearly completed the dam. While the near completion is denied in the answer there is no denial of the time during which the city had been engaged in the work, and it stands as an admitted fact that for two years prior to the commencement of this suit the work had been under way. It is true the testimony discloses that the plaintiffs and the city had been trying to agree upon the amount of compensation, but that shows that the plaintiffs were seeking compensation for the injuries they would sustain, and were not insisting upon their alleged right to an abandonment of the work. It is one thing to state a right and proffer a waiver thereof for compensation, and an entirely different thing to state the same right and demand that it should be respected. In the latter case the defendant acts at his peril. In the former he may well assume that payment of a just compensation will be accepted in lieu of the right. In the latter the plaintiff holds out the single question of the validity and extent of the right; in the former he presents the right as the foundation of a claim for compensation, and his threat to enforce the right if compensation is not made is simply a club to compel payment of the sum he deems the measure of his damages. Further, the testimony shows that the city was settling with other parties similarly situated, and paying out large sums of money for the damages such parties would sustain. So, it is not strange that the city acted on the assumption that the only matter to be determined was the amount of the compensation.

If the plaintiffs had intended to insist upon the strict legal rights (which for the purposes of this case we assume they possessed), they should have commenced at once, and before the city had gone to expense, to restrain any work by it. It would be inequitable to permit them to carry on negotiations with a view to compensation until the city had gone to such great expense, and then, failing to agree upon the...