Frontier Town Properties, Inc. v. State

• Decision Date: 12 December 1968
• Docket Number: No. 45891,45891
• Citation: 58 Misc.2d 388,296 N.Y.S.2d 90
• Parties: FRONTIER TOWN PROPERTIES, INC., Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 90

296 N.Y.S.2d 90

58 Misc.2d 388

FRONTIER TOWN PROPERTIES, INC., Claimant, v.The STATE of New York, Defendant.

Claim No. 45891.

Court of Claims of New York.

Dec. 12, 1968.

DeGraff, Foy, Conway and Holt-Harris, by William F. Conway, Albany, and Walter Feldesman, New York City, of counsel, for claimant.

Louis J. Lefkowitz, [58 Misc.2d 389] Atty. Gen., by Lawrence Wayne, Asst. Atty. Gen., of counsel, for the State.

DECISION

HENRY W. LENGYEL, Judge.

Approximately 134.593 acres of Claimant's land was appropriated by the Department of Public Works and the Conservation Department on November 4, 1965, when maps and descriptions were filed in the Essex County Clerk's office.

The claim in the sum of $1,500,000.00 was filed with the Clerk of the Court of Claims and the Attorney General on the 1st day of December, 1965.It has not been assigned.

Claimant was the purported owner of the property by reason of none (9) deeds which were received in evidence as Exhibits '15,''16,''17,''18,''19,''20,''22,''23,' and '24.'* * * All of said deeds were recorded in the Essex County Clerk's office except for Exhibit '24' which was an unrecorded deed from Niagara Mohawk Power Corporation to the Claimant herein, dated March 22, 1965.

The Claimant contended that it owned certain lands which were designated as the 'former Champlain & Sanford Railroad right of way' and the 'National Lead Company transmission line right of way.'It was Claimant's position that it had obtained title to said property by conveyance from Frank and Albanie Palmer(Exhibit '17') who held title by right of adverse possession.The State produced four (4) deeds (Exhibits 'W,''X,''Y,' and 'Z') which indicated that Mr. and Mrs. Palmer, and a predecessor in title to one parcel, had conveyed said property to the Champlain and Sanford Railroad and the Antional Lead Company.These were not grants of a right of way but were outright conveyances with Mr. and Mrs. Palmer reserving crossing rights over the National Lead Company conveyance.The Claimant produced an 'Indenture'(Exhibit '21') which it had received from the Palmers in 1958 and recorded in the Essex County Clerk's office.Said 'Indenture' was a recitation of alleged facts which Claimant contended established its title by adverse possession.There was also testimony at the trial from the examination before trial of Frank Palmer relative to this point.In certain circumstances, this Court has the right to determine title to real property.Raquette Falls Land Co. v. State of New York, 156 Misc. 227, 228, 281 N.Y.S. 476, 478, affd.247 App.Div. 837, 838, 286 N.Y.S. 606, 607;East River Savings Bank v. State of New York, 266 App.Div. 494, 498, 43 N.Y.S.2d 703, 706;Graham v. State ofNew York, Ct.Cl., 51 N.Y.S.2d 437.We cannot, however, determine title as between parties who are not all before the Court.This is particularly true when title involves the complicated question of adverse possession.The record title, Prima facie established by Exhibits 'W,''X,' and 'Z', rests in the National Lead Company and the Champlain & Sanford Railroad.These parcels were excepted from the Conservation Department appropriation.It is possible that the Palmers had succeeded to this title by adverse possession but on the record before uswe cannot determine that issue.We have not included that acreage in our before or after values or damages.

The State, in its Fifth Conclusion of Law, took the position that: 'The restriction in the deed from Niagara Mohawk Power Corporation to claimant, dated March 22, 1965, would have made it legally impossible for the claimant to use Palmer's Pond and the dam and the power plant for the generation of electrical energy Or for any commercial use or development.Cases cited.'(italics added.)We refused this proposed conclusion and believe we should explore the State's erroneous conclusion in some depth.The deed in question (Exhibit '24'), after describing the metes and bounds of the property conveyed, stated:

'Reserving, however, unto the party of the first part, its successors and assigns, all water rights and riparian rights of every name and nature in and to the West Branch of the Schroon River flowing through the lands above described, except that the party of the second part, its successors and assigns, may maintain the existing dam so long as the waters impounded thereby are not used for power purposes or the generation of electric energy.

'The party of the second part, by the acceptance of this deed, covenants, as a covenant running with the land and binding upon it, its successors and assigns, that said premises should not be used for power purposes or the generation of electric energy.'

The State's trial counsel stated in his brief, at page 36, that the reservation contained in said deed reserved to Niagara Mohawk Power Corporation'* * * all water rights and riparian rights to Palmer's Pond * * *.'A clear reading of the reservation demonstrated the error in said statement.Moreover, it was an error which apparently influenced to some extent the appraisal of Mr. Grant who stated in Exhibit 'A', at page 47: 'Palmer's Pond (18 acres) has 500 of usable frontage at the easterly end; * * *.The subject (Frontier Town) owns the land under water but does not possess riparian rights and therefore, has only a scenic amenity.'The other State appraiser, Mr. Allard, came to the same conclusion.

As stated in The Law of Water and Water Rights, Farnham, Vol. II, page 1565: 'A comprehensive statement of the rights of a riparian owner is that he has a right to have the stream remain in place and flow as nature directs, and to make such use of the flowing water as he can make without materially interfering with the equal rights of the owners above and below him on the stream.'See also, Warren's Weed New York Real Property, Water, Vol. 6, § 5.01.

One of the uses that a riparian owner may make of the stream is to dam the flowing water to form a pond for either commercial or recreational purposes, so long as such ponding does not materially interfere with the quantity of water flowing in the stream.Of course, when the pond is formed on the land of the riparian owner of the stream, said owner has the water rights in the pond impounded on his land.See, Warren's Weed New York Real Property, Vol. 6, Water, § 2.02.

Niagara Mohawk clearly recognized the difference in the riparian right it had to the stream and the water right to the impounded water on its land.The reservation in the deed explicitly referred to '* * * all water rights and riparian rights of every name and nature In and to the West Branch of the Schroon River flowing through the lands above described.'(Italics added.)Then, in further recognition of the difference, Niagara Mohawk stated that Frontier Town might maintain the existing dam in the flowing stream so long as the impounded waters were not used '* * * for power purposes or the generation of electric energy.'In other words, Niagara Mohawk was not concerned with Claimant's use of the impounded water except in the two named categories.Any other construction of the clear intent of the language used would be strained and implausible.The State Conservation Department certainly recognized Claimant's right to utilize these impounded waters when it reserved to the Claimant the '* * * right to take water from said Palmer's Pond and the right to lay, maintain, and repair a pipeline and necessary appurtenances for the purposes of carrying said water to other lands of the reputed owner.* * * And further excepting (sic) to the reputed owner the right to maintain the dam at Palmer's Pond in its present location.'

We cannot agree with Claimant's counsel that the Claimant had the right to utilize the waters of the West Branch of the Schroon River, within the boundary limits of said Niagara Mohawk deed, or the waters of Palmer's Pond to create an electrical theme park attraction in conjunction with the powerhouse, which was located on said property.* * * We are sympathetic to Claimant's position set forth in its brief that: 'Reservation of riparian rights are strictly construed against the grantor (see, e.g., Findley Lake Property Owners v. Town of Mina, 31 Misc.2d 356, 383(154 N.Y.S.2d 775, 800) * * *, and the operation of a theme park attraction simply as an exhibit could hardly be said to be the use of water for power purposes or the generation of electric energy in competition with Niagara Mohawk Power Corporation.'However, not only did the Niagara Mohawk deed set forth a clear and explicit reservation but it also contained a clear and specific covenant which provided that the claimant should not use said premises for power purposes or the generation of electrical energy.As stated in Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 304, 305, 118 N.E.2d 444, 447:

'But a reservation or grant in a deed, like every other contract 'must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law'(Real Property Law, § 240, subd. 3 McK.Consol.Laws, c. 50)It is only when language used in a conveyance 'is susceptible of more than one interpretation' that the courts will look into surrounding circumstances, the situation of the parties, etc. French v. Carhart, 1 N.Y. 96, 102;Clark v. Devoe, 124 N.Y. 120, 124, 26 N.E. 275, 276;Wilson v. Ford(209 N.Y. 186, 196, 102 N.E. 614, 617).'

See, also, Uihlein v. Matthews, 172 N.Y. 154, 159, 64 N.E. 792, 794;Schoonmaker v. Hoyt, 148 N.Y. 425, 431, 42 N.E. 1059, 1061;Hall v. Sterling Iron and Railway Co., 148 N.Y. 432, 42 N.E. 1056, for a review of the case law.

We find that Claimant did not have a legal right to use the waters of West Schroon River and Palmer's Pond for the purpose of producing power or the generation of electrical energy.We further find that the Claimant did not have a legal right to produce...