Elwood v. City of New York

• Decision Date: 31 March 1978
• Docket Number: 66 Civ. 2150-CLB,66 Civ. 2152-CLB,No. 62 Civ. 2562-CLB,66 Civ. 2154-CLB and 71 Civ. 5568-CLB.,62 Civ. 2562-CLB
• Citation: 450 F. Supp. 846
• Parties: George ELWOOD, Administrator of the Estate of Beatrice A. Van Loan, Plaintiff, v. The CITY OF NEW YORK, Defendant. George K. GREGORY and Helen Gregory, Plaintiffs, v. The CITY OF NEW YORK, Defendant. Lillian J. BADGLEY, Plaintiff, v. The CITY OF NEW YORK, Defendant. Emil LAKE and Helen Lake, Plaintiffs, v. The CITY OF NEW YORK, Defendant. Lloyd F. CANFIELD and Eloise L. Canfield, Plaintiffs, v. The CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

450 F. Supp. 846

George ELWOOD, Administrator of the Estate of Beatrice A. Van Loan, Plaintiff, v. The CITY OF NEW YORK, Defendant.

George K. GREGORY and Helen Gregory, Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Lillian J. BADGLEY, Plaintiff, v. The CITY OF NEW YORK, Defendant.

Emil LAKE and Helen Lake, Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Lloyd F. CANFIELD and Eloise L. Canfield, Plaintiffs, v. The CITY OF NEW YORK, Defendant.

Nos. 62 Civ. 2562-CLB, 66 Civ. 2150-CLB, 66 Civ. 2152-CLB, 66 Civ. 2154-CLB and 71 Civ. 5568-CLB.

United States District Court, S. D. New York.

March 31, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City, Herman E. Gottfried, Margaretville, N. Y., Jack Weinberg, New York City, for plaintiffs Canfield.

Kalter & Gottlieb, Michael R. Gottlieb, Woodbourne, N. Y., for plaintiffs Gregory, Badgley, Lake and Elwood.

Allen G. Schwartz, Corp. Counsel, Paul T. Gorman, Asst. Corp. Counsel, Binghamton, N. Y., William P. Murray, Asst. Corp. Counsel, Kingston, N. Y., for defendant City of New York.

FINDINGS AND CONCLUSIONS

BRIEANT, District Judge.

These five actions, consolidated for trial, have been brought by, or in the name of, owners of riparian land situated in Pennsylvania, who claim that the value of their lands along the Delaware River and its West Branch was diminished by the City of New York's diversion of the headwaters of the Delaware River for public water supply purposes.

The Court has subject matter jurisdiction based upon diversity of citizenship of the parties at the dates of commencement of the actions, pursuant to 28 U.S.C. ? 1332(a)(1). Trial was before the Court without a jury, commencing on June 2, 1975. Post-trial briefs, memoranda and submissions of the parties have been read and considered.

The Delaware River

An understanding of the location, design and operation of that portion of the New York City water supply system drawn from the Delaware River is essential to an understanding of this litigation. The Delaware is one of the major rivers on the Atlantic seaboard. From its sources in New York State to Delaware Bay, the River runs 410 miles, and drains a watershed of some 12,765 square miles. The Delaware River has two main branches, the East Branch and the West Branch. The West Branch rises north of Stamford, New York in Delaware County. The East Branch has its origin near Margaretville, New York. On its way to the sea, the Delaware River is joined by many streams and tributaries.

The two branches join at Hancock, New York. Thereafter, the River flows in a generally southeasterly direction. Commencing near Deposit, New York, the West Branch forms the boundary line between New York and Pennsylvania. At Tri-State Rock, near Port Jervis, New York, the boundaries of New Jersey, New York and Pennsylvania converge. Below Tri-State Rock, the River constitutes the boundary between New Jersey and Pennsylvania. The Lehigh River joins the Delaware near Easton, Pennsylvania. At the head of Delaware Bay near Wilmington, Delaware, it discharges into the Atlantic Ocean.

Pursuant to proceedings in the Supreme Court, discussed below, the City of New York constructed Pepacton Reservoir, on the East Branch of the Delaware near Downsville, New York. This, and all of the City's reservoirs discussed herein are located entirely in New York State. No part of New York City is located in the drainage basin of the Delaware or any of its tributaries.

Impoundment of water behind the dam erected to create the Pepacton Reservoir began in September 1954; the first diversion to New York City occurred in January 1955; and the dam spilled for the first time on April 16, 1956. Pepacton Reservoir is 180 feet deep at its deepest point, and has a capacity of some 147 billion gallons. The drainage area impounded by Pepacton is 371 square miles.

Thereafter, the City constructed Cannonsville Reservoir, on the West Branch of the Delaware near Stilesville, New York. Impoundment at the Cannonsville Reservoir began in September 1963; the first diversion to New York City occurred in January 1964; and that dam first spilled on May 9, 1967. The Cannonsville Reservoir has a maximum depth of 150 feet and a capacity of 97.4 billion gallons. The drainage area impounded by Cannonsville is 450 square miles. On the Neversink River, a tributary of the Delaware, the City also has the older and smaller Neversink Reservoir, impounding a drainage area of 92 square miles and having a maximum storage capacity of 37.1 billion gallons.

The premises of the plaintiffs described below, are all, except for Van Loan, located downstream of the confluence of the West Branch and East Branch of the Delaware, and above the point where the Neversink River enters the Delaware. The Van Loan property is situated upstream from Hancock, near Ball's Eddy, New York, and is affected only by operation of the Cannonsville Reservoir.

Water flows in the Delaware River are affected by the impoundment activities of third parties. Lake Wallenpaupack in Pennsylvania has been dammed by a hydroelectric generating station. It contains a drainage area of 228 square miles, and discharges into the Delaware through the Lackawaxen River at a point upstream from Barryville, New York, and also upstream from the Montague, New Jersey gauging station, mentioned below. As electric demand varies, the amount of impounded water being released increases or decreases. A similar project on the Mongaup River in New York has a similar effect. The Mongaup also joins the Delaware above Montague, New Jersey.

All plaintiffs are located upstream from the Lackawaxen, Mongaup and Neversink Rivers. Streamflow in the Delaware at their parcels is not augmented when water is released downstream by the City from the Neversink Reservoir, or by the generation of electric power by unrelated persons on the Lackawaxen and the Mongaup.

The function of the three City reservoirs mentioned above is to impound spring runoff, store it during periods of little or no rainfall, and divert the stored water from the watershed of the Delaware to the Hudson River Valley by means of the Delaware Aqueduct System. The water is used by the City of New York, and, to a minimal extent, also by other New York communities situated along the course of the Aqueduct. After use, it is discharged into drainage basins other than that of the Delaware River, generally the Hudson River and New York Bay.

The term "diversion" is neutral in the law. It can indicate the perfectly proper "ordinary and domestic uses," York Haven Water & Power Co. v. York Haven Paper Co., 201 F. 270, 275 (3d Cir. 1912), to which every riparian owner can turn the waters of a stream flowing through or at the boundary of his land, so long as he returns the residue to the stream within the boundaries of his land. See Mayor v. Commissioners, 7 Pa. 348, 367-68 (1847). To be lawful, such uses need only be reasonable. Where, however, a riparian owner's uses of the waters of a stream unreasonably deprive a downstream riparian owner of the value of his location, see, Williams v. Fulmer, 151 Pa. 405, 414, 25 A. 103 (1892), by changing the channel, direction, flow, stage, quality, etc., of the stream ?€” all of which are summed up in the common law phrase "currere solebat," ?€” the diversion invades a valuable property right of a downstream owner and is actionable. See, United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702, 19 S.Ct. 770, 43 L.Ed. 1136 (1899); Hackensack Water Co. v. Village of Nyack, 289 F.Supp. 671 (S.D.N.Y.1968). The permanent massive diversion of water out of a channel for uses outside the drainage area and unconnected with the ownership and use of riparian land, as, for example, to add to the water supply of a community that is not within the drainage area of the stream, is unreasonable. See e. g., Standard Plate Glass Co. v. Butler Water Co., 5 Pa.Super. 563 (1897).

At the present time, New York City relies on three principal sources to meet its water supply needs. The two older sources are the Croton System, on the Croton, Bronx and Byram Rivers, and the Catskill System, on Esopus Creek and Schoharie Creek. The Delaware System, comprising the reservoirs on the East and West Branches and on the Neversink River, is the City's most recent source of supply and provides fully 50% of the City's needs. Since in years of normal rainfall the available water exceeds requirements, the City can and does draw at varying times greater or lesser amounts from its different sources, having regard to operating costs, pending maintenance and repair projects, comparable quality, tastes and odors, and related operating criteria. Because of its larger size, and the relatively smaller human population and industrial activity in the watershed area, Delaware water is regarded as the best quality water presently available from the various City sources. New York chlorinates its supply but has not yet found it necessary to filter or otherwise treat its water, as do most communities.

The Parties and Their Properties

The lands of four of the plaintiffs here are located on the Pennsylvania side of the main body of the Delaware River between Hancock, New York and Narrowsburg, New York. The property of one of the plaintiffs, Van Loan/Elwood, is located on the Pennsylvania side of the West Branch, above Hancock, New York near Ball's Eddy. All are located upstream from Montague, New Jersey, and upstream from the points where the Lackawaxen, Mongaup and Neversink Rivers join the Delaware.

(1) Van Loan/Elwood. Mrs. Beatrice Van Loan was the first of these plaintiffs to commence action against the City. Consequently, the procedural history of her action is the most complex.

Mrs. Van Loan owned 124 acres of land with approximately one-half mile frontage on the West Branch of the Delaware, about five miles above the confluence of the East and West...