Dermott v. State
| Decision Date | 14 April 1885 |
| Citation | 1 N.E. 242,99 N.Y. 101 |
| Parties | DERMOTT, EX'r, etc., and others v. STATE. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Martin I. Townsend, for appellants, Henry S. Dermott and others.
D. O'Brien, Atty. Gen., for respondent, the State.
The claimants in this proceeding assert a right to damages against the state by reason of the act of the canal commissioners in cutting off the privilege of drawing surplus water from the Erie canal for the propulsion of the machinery used in running certain flouring-mills, owned by them, near Port Schuyler. The resolution of the commissioners by which the use of the water was withdrawn from the claimants was adopted in 1875, and reads as follows: ‘Whereas, it is evident to this board that water drawn from said canal at Port Schuyler by Stephen C. Dermott, under his water grant, is required by the state for canal purposes, in order to protect and preserve the navigation of the said canal,’ be it therefore resolved, that said grant be hereby ‘rescinded, revoked, annulled, and entirely abrogated.’ The claim of the appellants is based upon the rights acquired by them under the provisions of chapters 270, Laws 1822, and 100, Laws 1827, which, so far as the material portions are concerned, read as follows: ‘Whereas, it appears that the legal representatives of John McDonald, deceased, and Archibald McIntyre are the owners of a mill-site and dam at the junction of the most northerly mouth or spout of the Mohawk with the Hudson river; and whereas, it appears that the canal commissioners, by operations determined on for the improvement of the navigation of said river, will destroy and render entirely useless the said mill-site and dam;’ ‘and whereas, it appears to the legislature that in equity relief ought to be granted therefor: Be it enacted by the people of the state of New York, represented in senate and assembly, that, for compensating’ the parties aforesaid ‘for the loss of said mill-site and water belonging thereto, the canal commissioners are hereby authorized to grant and convey’ to the parties aforesaid ‘the right of drawing water from the canal at any point between the Mohawk river and the city of Albany,’ ‘such a column of water as shall be deemed sufficient to propel four run of mill-stone for grinding flour: provided, however, that the right to draw water from the canal thereby granted shall in nowise operate to prevent or injure the navigation of the boats therein; and provided, futher, that it shall be lawful for the canal commissioners, or a majority of them, from time to time to modify or in whole revoke any grant made in pursuance of this act, as to them may seem necessary and proper for the preservation of the navigation of the said canal.’ The act of 1827, c. 100, confirmed the power given by the previous act, with some immaterial changes; and the claimants show that they have succeeded to all of the rights conferred upon the original grantees under said acts. The case shows that the claimants' grantors, under the authority given by said acts, erected valuable mills at Port Schuyler in 1828, and continued to use and enjoy them, either by themselves or their grantees, by water-power derived from the surplus water of the canal, from that time until the year 1875, when they weredeprived of its use by the resolution of the canal commissioners hereinbefore referred to.
The petition of the claimants was originally filed with the board of canal appraisers in 1875, and was pending before that body until 1883, when, by force of the statute organizing the board of claims, it was transferred to them for adjudication. At a hearing of the matter in November, 1883, the board of claims, upon the motion of the attorney general, dismissed the claimants' petition upon the ground that ‘the facts stated in the claim and exhibits under the laws of this state do not constitute any claim against the state.’ The appeal to this court is taken from that determination.
The motion to dismiss the claimants' petition was in the nature of a demurrer to the cause of action stated, and impliedly admitted, for all of the purposes of this proceeding, the truth of the allegations contained therein. It was alleged in the petition that the tide never flowed in that portion of the Mohawk river upon which the dam and mill-site referred to in the act of 1822 was situated, and that it was not navigable for any purpose at the time of said appropriation. It was further stated therein that subsequent to the time of making the grant the capacity of the Erie canal had been greatly enlarged, without the consent of the owners of the grant, by virtue of certain acts of the legislature authorizing the same, and that the necessity for the appropriation of the water, made by the canal commissioners in 1875, arose from the increased quantity required for the navigation of the enlarged canal.
For the purposes of this decision these allegations must be taken as true, and the case disposed of upon that assumption. It also appears, from the recitals contained in the original act of 1822, that the grant in question was based upon a good consideration, and was made to McDonald and McIntyre as a compensation for property belonging to them which had been previously appropriated by the state to its own use. Although the north spout of the Mohawk might be a navigable stream, that fact alone did not preclude the lawful acquisitionby McDonald and McIntyre of a mill-site and dam thereon, or rebut the presumption of ownership arising from the admission of that fact expressly made by the state in the recitals of the act of 1822. Even if such stream was navigable, it was competent for the state to grant, and for them to acquire, the right to erect a dam thereon, and to possess the same as their individual property. The act in question could not, therefore, be considered as a mere voluntary exercise of the bounty of the state towards the persons named in it, but must be regarded, if within the constitutional power of the legislature to make, as a valid contract between the parties, and subject to the same rules of interpretation which govern the contracts of individuals, except those requiring the grants of the sovereign to be strictly construed against its grantees, and such as necessarily arise from the difference of intention ascribable to parties whose objects and employment are so diverse as those of sovereign and subject. Colvin v. Burnet, 2 Hill, 620;Brink v. Richtmyer, 14 Johns. 255;Charles River Bridge v. Warren Bridge, 11 Pet. 420.
It was said in Langdon v. Mayor of New York, 93 N. Y. 641, that the rule requiring a strict construction did not apply in all of its severity to the case of a grant or contract made between the sovereign...
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