People v. System Properties, Inc.

• Decision Date: 28 February 1957
• Citation: 2 N.Y.2d 330,160 N.Y.S.2d 859,141 N.E.2d 429
• Parties: , 141 N.E.2d 429 The PEOPLE of the State of New York, et al., Appellants-Respondents, v. SYSTEM PROPERTIES, Inc., et al., Defendants, and Trustees of Dartmouth College et al., Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 859

160 N.Y.S.2d 859

2 N.Y.2d 330, 141 N.E.2d 429

The PEOPLE of the State of New York, et al., Appellants-Respondents, v. SYSTEM PROPERTIES, Inc., et al., Defendants, and Trustees of

Dartmouth College et al., Appellants-Respondents.

Court of Appeals of New York.

Feb. 28, 1957.

Randall J. Le Boeuf, Jr., Chauncey P. Williams, Jr., Halcyon G. Skinner and Alfred E. Froh, New York City, for Trustees of Dartmouth College, appellant-respondent.

Richmond D. Moot, Schenectady, for Irving Langmuir and others, appellants-respondents.

Charles H. Tuttle, New York City, for Lake George Ass'n, appellant-respondent.

Jacob K. Javits, Atty. Gen. (Richard H. Shepp and James O. Moore, Jr., Albany, of counsel), for People of the State of New York, appellant-respondent.

DESMOND, Judge.

This protracted and elaborate litigation calls for answers to two closely related questions: who has the title to 'Dam A' in the Ticonderoga River in Essex County, New York, and by whom and to what extent may the operation of that dam be regulated so as to affect the water level of Lake George? Ticonderoga River (or Creek) is the only outlet of Lake George and flows in a northerly direction about 3 1/2 miles, with a drop of some 220 feet, to its outlet in Lake Champlain. Lake George is 33 miles long, about 3/4 of a mile to 3 miles wide. Its clear waters are dotted with islands and surrounded by the picturesque scenery of the Adirondack foothills. At its foot where it empties into Ticonderoga River there is a 400-foot-long natural rock formation known as Natural Dam beyond which there is a relatively level stretch of river. About 3/4 of a mile further down is the so-called Upper Falls, first of a series of waterfalls in Ticonderoga River. Dam A, the subject matter of our lawsuit, is of masonry construction about 83 feet long, and is about a foot higher without flashboards than the Natural Dam. Built upon the brink of Upper Falls in 1903, it is operated and maintained by Trustees of Dartmouth College (substituted for original defendant System Properties, Inc., which in turn had succeeded the builder of the dam). The trustees not only assert ownership of the dam, but assert, too, that the river is nonnavigable in fact and law, that the Dartmouth trustees own in fee the river bed on which the dam stands and that the Dartmouth trustees have, as against plaintiff State and all riparian owners on Lake George, a valid prescriptive right of flowage against the lands on the shores and islands of Lake George. On sufficient proof if has been found by both the trial court and the Appellate Division that a number of dams have successively stood at the approximate present site of Dam A continuously since about the year 1798. It was found by both courts on abundant proof that Dam A 'has the effect of raising the level of the water of Lake George about one foot and one half above the level which would otherwise have obtained'. The Appellate Division's opinion makes these additional findings: 'The dam serves the function of holding back the waters of Lake George and converting it in effect into an enormous reservoir. The waters of the spring floods are stored for use in the drier seasons. This helps to stabilize the water level of the lake and also aids in the development of water power at the dam site'. The record shows disputes as to the fact and extent of damage caused by the dam's flooding operations to the shores and islands of the lake and interference with the enjoyment of the waters by homeowners along the lake, but neither court below made findings of fact in this connection.

This action was brought by the State of New York in 1942 against System Properties, Inc., then the operator of the dam. Seven individual owners, called herein the 'Langmuir' group of intervenors, of homes on Lake George intervened on plaintiff's side. Other intervenors were three counties, seven interested townships, the Village of Ticonderoga, Elizabeth Brereton, a riparian owner on Lake George, and the Lake George Association, the later's membership being about 800 owners of riparian real estate in the Lake George area.

The People's complaint alleged that both Lake George and Ticonderoga River are public navigable waters of the State of New York, that the operation of the dam has damaged and destroyed property of both the State and private owners in and along Lake George and has interfered with navigation and enjoyment of the lake's waters, resulting in a public nuisance. The complaint's prayer for judgment demanded that the dam itself be ordered removed, a demand which the State withdrew at the opening of the trial with the concurrence of all parties except the seven 'Langmuir' intervenors-plaintiffs who continue to press that demand. The further demands of the State were and are that the State be declared to be the sovereign owner and the owner in fee of the bed of the Ticonderoga River including this dam site, that Lake George, Lake Champlain and the Ticonderoga River are all public navigable waters and that the State possesses and is bound to exercise the reserve power to regulate and control, in the public interest, the waters of Lake George and the Ticonderoga River. Defendant System Properties, Inc. (later succeeded in interest by present defendants-appellants-respondents Dartmouth trustees), asserted that it, the dam operator, either by grant or adverse possession owns the dam site, and has a valid prescriptive right of flowage and that the river is a nonnavigable minor stream. The various intervenors, other than the Langmuir group above mentioned and the Lake George Association, have not appealed from the Appellate Division's determination and so are not parties in this court. The Lake George Association, whose members are interested in keeping the Lake George level at a height which will protect the lake's beauty and enhance its use and enjoyment, argue in this court that the Appellate Division should not have stricken out so much of the trial court's decision, hereinafter described, as in effect fixed the upper and lower levels between which Lake George's waters must be kept.

Both courts below wrote careful, able and comprehensive opinions. 189 Misc. 991, 77 N.Y.S.2d 758; 281 App.Div. 433, 120 N.Y.S.2d 269. The two courts were in agreement as to the history of the dams and as to title to the river bed at the site of the dam being in System (now Dartmouth). The two courts differed as to whether the river was navigable, Trial Term giving a negative and the Appellate Division an affirmative answer to that question. The Appellate Division held with the State in the latter's contention that it has a sovereign or reserve power, paramount and not subject or subordinate to any prescriptive right of the dam operator, to control and regulate the waters and water level of Lake George by regulating the use and levels of the Ticonderoga River and that the operation of Dam A is subject to that sovereign power of the State, which power may be exercised in the public interest not only as to production of water power but in relation to recreational and other uses of Lake George. Trial Term did not directly affirm or deny the existence of such power. Trial Term did make a determination as to what it considered to be under all the circumstances the 'most advantageous' water level of Lake George, fixed that level between upper and lower limits, announced a plan for maintaining those levels during the summer months, appointed the State Superintendent of Public Works as the court's agent for seeing to it that its directives were carried out, and retained jurisdiction in the Supreme Court to enforce or modify the judgment. The Appellate Division struck out those provisions of the Trial Term judgment which had determined the most advantageous levels for Lake George and which designated the State Public Works Superintendent as the Supreme Court's agent, etc. It was the holding of the Appellate Division that the State's sovereign power over the waters of Lake George and Ticonderoga River could be exercised for the State by the Legislature or its designated officer or agent only and not exercised by any court or enforced by any individual riparian owner. The judgment entered on the Appellate Division's order determined that the Ticonderoga River was a navigable stream, title to the bed of which at the dam site is owned by defendant Dartmouth, and that the State has complete sovereign power over the water levels of the lake and river but that fixation of such levels or other governmental control is a legislative power.

We will now take up three questions: first, title to the river bed; second, navigability of the river, and, third, power of the State to control and regulate the use of Lake George and its outlet stream, the Ticonderoga River.

First, we deal with the question, answered in the affirmative by both lower courts: does System (Dartmouth) own the title to the riverbed lands under the dam? This, it is clear, is a question different from that of navigability since under New York law the bed of such a stream as the Ticonderoga River is subject to private ownership, regardless of navigability. Fulton Light Heat & Power Co. v. State of New York, 200 N.Y. 400, 412, 94 N.E. 199, 202, 37 L.R.A.,N.S., 307, see Appleby v. City of New York, 271 U.S. 364, 46 S.Ct. 569, 70 L.Ed. 992. The dam operator's opponent on this issue of river-bed title is the State which says that it (the State) is the owner as successor to the rights of the British Crown and that System (Dartmouth) has no record title to the lands under water and has not and could not perfect title thereto by adverse possession.

We first turn to the dispute as to whether System (Dartmouth) has record title or title by grant to the river bed at this place. The existence of such title was found affirmatively by the Trial Term and by the Appellate Division. In July, 1764, King George III made and delivered to John...