City of Syracuse v. Gibbs

• Decision Date: 24 July 1940
• Citation: 28 N.E.2d 835,283 N.Y. 275
• Parties: CITY OF SYRACUSE v. GIBBS, Deputy Conservation Com'r, et al.
• Court: New York Court of Appeals Court of Appeals

283 N.Y. 275

28 N.E.2d 835

CITY OF SYRACUSE

v.GIBBS, Deputy Conservation Com'r, et al.

Court of Appeals of New York.

July 24, 1940.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding by the City of Syracuse under article 78, s 1283 et seq., of the Civil Practice Act, against John T. Gibbs, Deputy Conservation Commissioner, and others, constituting the Water Power and Control Commission, to review a determination of the commission, permitting the Village of Jordan in the Town of Elbridge, Onondaga County, to draw a supply of water from the conduits of the city, and fixing the price which the village should pay therefor. From an order of the Appellate Division, 258 App.Div. 405, 17 N.Y.S.2d 293, annulling the determination of the commission, the commission appeals.

Order reversed, and determination of commission affirmed. John J. Bennett, Jr., Atty. Gen. (Timothy F. Cohan, Henry Epstein, and Jack Goodman, all of Albany, of counsel), for appellants.

John C. McLaughlin, of Jordan, for Village of Jordan, intervener.

James C. Tormey, Corp. Counsel, of Syracuse (George T. Driscoll, of Syracuse, of counsel), for respondent.

RIPPEY, Judge.

On March 19, 1935, the Water Power and Control Commission made its order approving the plans of the village of Jordan for the construction and operation of a municipal water system by means of which it might be enabled to procure an adequate supply for its inhabitants of pure and wholesome water from Skaneateles lake (Application 921; 50 St.Dep.Rep. 526). The order, in part, authorized the village to tap into the mains of the village of Elbridge and, by that means, to draw off from the Elbridge supply sufficient water for its requirements. Elbridge, in turn, procured all of its supply from the conduits of the city of Syracuse through which flowed waters from Skaneateles lake under authorization of the Commission by order dated November 25, 1931 (Application 670; 41 St.Dep.Rep. 345). Negotiations between the village of Jordan and the city of Syracuse for agreement as to the quantity of water which the village might draw from the city conduits through the Elbridge mains and the service rate which it should pay to the city for the use of the city conduits in supplying the water failed. As a consequence of the failure of the parties to agree, the village of Jordan filed its application with the Commission (No. 1049) on February 21, 1936, to procure a determination of those questions. Upon that application, after due notice and a full hearing, the Commission made its order under date of August 21, 1936, by which the village was allowed to withdraw a quantity not in excess of sixty-nine million gallons in any one calendar year and the service rate was fixed at two cents per hundred cubic feet of water withdrawn (55 St. Dep. Rep. 251). The order provided that the water should be delivered, taken and paid for in accordance with the provisions of Water Applications 609, 670 and 921 and should remain in force for five years from the date of the order. In proceedings instituted by the city under article 78 of the Civil Practice Act, s 1283 et seq., the determination and order of the Commission were annulled by the Appellate Division and from the order entered upon its decision the Commission has appealed to this court. The majority of the lower court has held that the Commission was without jurisdiction to make the order. The court was unanimously of the opinion that, in any event, the service rate fixed was unreasonable and the determination as to that arbitrary and capricious.

Skaneateles lake is a body of water approximately fifteen miles in length with an average width of about one mile, lying and extending generally in a northerlysoutherly direction in Onondaga, Cayuga and Cortland counties. Its inlet is at the southerly end of the lake whose source, in turn, is many miles distant in Cortland county. The surface area of the lake is approximately thirteen square miles and its watershed is about seventy-five square miles. Its outlet is Skaneateles creek, about ten miles long, commencing at the foot or northerly end of the lake at the village of Skaneateles and extending generally in a northerly direction until it empties into Seneca river at the village of Jordan, the river, at that point, now being a part of the Barge Canal System of the State. The lake is about seven miles from the village of Elbridge, about ten miles from Jordan and about nineteen miles from the city of Syracuse. Its elevation above Elbridge is upwards of three hundred feet, above Jordan is about four hundred fifty feet and in excess of those figures above the city of Syracuse. Before the city of Syracuse about 1894 and other municipal units later tapped the lake for their water supply, the outlet was a source of power for mills, manufacturing plants and factories located along its course, for the supply of water needed by the inhabitants of the town of Elbridge and of the villages of Elbridge and Jordan located therein, the means of removal of pollution arising throughout the drainage basin and a feeder for the old Erie canal which passed through the village of Jordan, but since that time such source of supply has been partially, if not wholly, removed. The Commission has found that the lake and its tributaries and outlet are the only logical, normal and natural sources of water supply for the entire drainage basin and also for any part of the towns of Skaneateles and Elbridge, Onondaga county, and the easterly part of the town of Sennett, Cayuga county, and of the inhabitants thereof who were declared to have a right to be so supplied superior to the rights of the city of Syracuse.

Various local acts of the Legislature have to do with the creation of the waterworks system of the city of Syracuse and its procurement and use of a water supply from Skaneateles lake. L. 1888, ch. 532; L. 1889, ch. 291; L. 1890, ch. 314; L. 1892, ch. 27; L. 1894, ch. 184; L. 1894, ch. 360; L. 1906, ch. 631; L. 1909, ch. 156; L. 1918, ch. 449; L. 1923, ch. 271; L. 1930, ch. 66; L. 1931, Ex.Sess. ch. 796. At the outset, the city challenges the power of the Commission to interfere with its alleged exclusive ownership of, use of, and control over the waters of Skaneateles lake or to grant the order here involved. The city undertakes to include the waters of Skaneateles lake within its waterworks system and then urges that the Legislature granted exclusive control over the Syracuse water system to the city of Syracuse. For its alleged exclusive grant, it relies upon the above listed acts passed prior to 1905 and upon the later acts referred to for confirmation of such grant. It is urged that, by those statutes, the Legislature not only freed it from any control whatsoever by the Water Power and Control Commission and its predecessor water control commissions but gave it absolute power over all the waters of the lake to use and dispose of them within its own jurisdiction for whatsoever price it may charge and elsewhere at such price as it or the Legislature by local law might elect to impose. We find no justification in any provisions of those acts for any such contention.

We need not pause to make a detailed analysis of those acts. Suffice it to say that the city of Syracuse was given the right to take water from the lake, not required by the State for use by the Erie canal, through a single conduit of not more than thirty inches in diameter for the purpose of supplying the city and its inhabitants with water subject to and conditioned, however, upon various limitations and restrictions, subject to State control and to the rights of others, riparian or otherwise, to the use of waters collected from the watershed and impounded in the lake. Referring to section 18 of the act of 1889, that being the section under which power to take water and rights to the city were granted, as amended by chapter 314 of the Laws of 1890, this court said: ‘The rights of the city in and to the use of the surplus waters of the lake conferred by the act were expressly declared to be at all times subject to the superior claims of the state thereto.’ Sweet v. City of Syracuse, 129 N.Y. 316, 328,27 N.E. 1081, 1082,29 N.E. 289. In connection with the question of whether the city acquired by any provision of those acts any property right, the question arose as to whether any public property was appropriated for local or private purposes in violation of constitutional prohibitions. It was held that the State had no property right to give or convey in and to the waters of the lake or to the waters flowing through its outlet and no such right could be conveyed, or was attempted to be conveyed, to the city by the acts in question. The court said (129 N.Y. at page 335, 336,27 N.E. at page 1084): ‘Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein, and in this case the state never acquired, or could acquire, the ownership of the aggregated drops that composed the mass of flowing water in the lake and outlet, though it could and did acquire the right to its use. * * * We think that the conditions of the grant to the city of Syracuse are such that no property right or interest, which the state has or ever had, is transferred, lost, or impaired. After all the provisions of the statute are executed, the state will possess and enjoy every right, with respect to those waters, that it did before, and, if this is so, then no public property is transferred by the act from the state to the city.’ We likewise find clear and unambiguous expressions in the early acts negativing the contention of the city. It is said in the act of 1890 with reference to comparative rights to use: ‘It being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters, are to be subject always to the superior claims of the state thereto.’ In chapter 631 of the Laws of 1906, all...