Fulton Light, Heat & Power Co. v. State

• Decision Date: 17 January 1911
• Citation: 94 N.E. 199,200 N.Y. 400
• Court: New York Court of Appeals Court of Appeals
• Parties: FULTON LIGHT, HEAT & POWER CO. et al. v. STATE.

200 N.Y. 400

94 N.E. 199

FULTON LIGHT, HEAT & POWER CO. et al.

v.STATE.

Court of Appeals of New York.

Jan. 17, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the Fulton Light, Heat & Power Company and others against the State of New York. From a judgment of the Appellate Division (138 App. Div. 931,123 N. Y. Supp. 1117) affirming a judgment for plaintiffs, defendant appeals. Affirmed.Edward R. O'Malley, Atty. Gen., for the State.

Charles A. Collin, for respondents.

GRAY, J.

The respondent company, as its name indicates, is a corporation, engaged in the business of manufacturing and supplying gas, electricity, and steam, for producing light, heat, and power to the city of Fulton and to other cities, towns, and villages. Its power plant and other properties, as affected by this litigation, are situated at the city of Fulton, on the easterly side of the Oswego river. Under the provisions of chapter 147 of the Laws of 1903, generally known as the Barge Canal act, the state had appropriated certain of the land properties and riparian rights of the claimants, and this claim was filed and prosecuted in the Court of Claims, as provided for by the act, to recover compensation therefor. The claimants recovered a judgment against the state for sums of money ‘for the permanent appropriation’ of certain described parcels and, as to two of them, for their right, title, and interest in the land in the bed of the river and as riparian owners. The judgment has been unanimously affirmed at the Appellate Division, and thus all questions of fact have been conclusively established, leaving, however, for our consideration legal questions of some importance to the state, in the execution of the great work undertaken. They arise upon the defenses interposed by the state to the claim of the respondents.

The state disputes its liability upon the grounds, in substance, that the Oswego river is a navigable river, the ownership of the bed of which is by law in the state; that, the land affected being in the bed of the river, the claimants never acquired title to it by grant, or otherwise; and, upon the assumption that the title is in them, the work undertaken being for the improvement of navigation, that the state can use the bed and waters of the river without coming under any liability to make compensation to those persons, whose properties may be taken or interfered with.

The Oswego river is a fresh water stream, of some 25 miles in length, flowing in a northerly direction, through the city of Fulton, into Lake Ontario. At the part where the claimants' properties are situated, the river is not navigable for some distance to the north and the south; but, above and below, it has been used for purposes of navigation and commerce. Its navigability is not, in any wise, affected by any of the claimants' structures. In 1793 the state granted to Conrad Stene, by letters patent, a tract, containing 200 acres of land, which, it is claimed, comprehends within the description of the grant the premises to which the claimants assert title and rights. By mesne conveyances, what title Stene had to them has passed to these claimants, and, although their properties are on the east side, and within the margin, of the river, they have not, since 1793, constituted any part of the bed of the natural channel. Prior to 1819, the then owners of the premises, Hubbard and Falley, had, at a short distance southerly from the present power plant, constructed a wing dam, extending into the river, and a sawmill, which was operated thereafter by water supplied from the dam through a flume upon their lands. In 1827, pursuant to the authority of acts of the Legislature, the canal commissioners of the state, for the purpose of improving the navigation of the river by the construction of the Oswego Canal, had erected a dam across the river. This canal followed the river, using its actually navigable portions, and, where not navigable, passing around the dams built for its facilitation The dam pier and the portion of the dam wall between the pier and the center of the river took the place of the former wing dam and were, in part, upon the power plant property. They remained as constructed until 1857, when, the pier and easterly end of the dam having been carried away by a flood, the entire dam and dam pier were rebuilt of stone by the state, in substantially the same location. As originally constructed by the commissioners and as reconstructed, down to the time of the present appropriation by the state, the state dam had one, or more, openings in the dam pier along the southerly side of the sawmill, for the purpose of supplying water power to it and to the various plants, which have been put up on its site and elsewhere upon the property. The southerly walls of the sawmill and of the buildings which have replaced it rested upon the northerly portion of the original, and of the reconstructed, dam piers. Around the easterly end of this dam, which reached from bank to bank of the Oswego river, the Oswego Canal was built, and thereafter so much of the river water was diverted into it as was needed for its operation; but no water power was cut off, nor otherwise affected. No payment appeals ever to have been claimed, or offered, for any damages to the power plant property. It is to be presumed, and the facts warrant the presumption, that the owners regarded themselves as not, appreciably, injured by what was done at the time, as, also, by reason of the provision made for their case by the Legislature in an act passed in 1823 (Laws 1823, c. 112). It was enacted ‘for the relief of the owners of hydraulic privileges, where dams are erected by canal commissioners,’ and, while providing that such owners shall be entitled to the use of so much of the surplus water as may be necessary for their mills, upon their constructing a raceway and gate in the dam, further provided, that nothing therein contained should be so construed as to deprive them ‘of any right or rights, which they may have owned and possessed prior to, and independent of, any license, or grant, made by this act, unless compensation shall be made therefor,’ etc. The owners of the mill plant, in 1827, executed a bond to the state, as required by the act where millowners avail themselves of the right to construct a raceway and a gate, conditioned to keep them in constant repair; but, of course, that could not affect any rights which they may have possessed. They were expressly saved by the act. As already observed, no claim was ever made against the state for any of the acts of the canal commissioners in constructing the Oswego Canal, and matters remained as they were in the time of Hubbard and Falley's ownership; excepting that changes were made to the old flume and a new hydraulic canal was built. The claimants hold the parcels of property and the riparian rights, affected by the appropriation of the state under the provisions of the Barge Canal act, with the same right, title, and interest, as did Hubbard and Falley, who, first, commenced to subdivide the tract of 200 acres by various grants. The state had not, heretofore, sought to acquire any further rights, or properties, than were involved in the construction of the Oswego Canal, in 1827, on the easterly margin of the river, and in the diversion thereto of so much of the river waters as was necessary. The claimants and their predecessors in interest appear to have utilized and enjoyed, without claim, or interference, on the part of the state, such properties and rights as had become vested in Conrad Stene and his grantees. The riparian rights of the claimants attached to the three parcels involved here and consisted in the right to use the river waters; the most beneficial right, naturally, being the use at the power-plant structure of the opening in the dam. It is found that ever since 1827, until the present appropriation by the state, the claimants and their predecessors in title have been ‘in the actual, undisputed, and open possession, claiming under and by virtue of written instruments, title, ownership, and rights of possession,’ of the properties in question and have drawn from the river, through the openings in the dam pier, so much of the water as has been needed for their purposes. The possession and occupation for upwards of 60 years, prior to the filing and service of the appropriation maps, are found to have been ‘adverse to any claim by the state to any part thereof, except as to the construction and maintenance of the said state dam and the use of the waters of the Oswego river by the state.’

In this situation, in 1906, the state engineer took the requisite action under the provisions of the Barge Canal act to appropriate the lands, structures, and waters of the claimants, in question. By the terms of that act it was, among other things, provided that that official should be authorized to ‘enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary’ (Laws 1906, c. 365, § 1). The state engineer was to make and file maps of the lands to be appropriated, and the superintendent of public works was to serve upon the owner of any real property, so appropriated, notices of the filing and date of filing of such maps, which should, specifically, describe the portions appropriated. The act provides that, from the time of the service of such notice, the entry upon, and the appropriation by the state of, the real property therein described should be deemed complete; that such notices should be conclusive evidence of such entry and appropriation, and of the quantities and boundaries of lands appropriated; and that the Court of Claims should have jurisdiction to determine the amount of compensation for lands, structures, and...