Waterloo Woolen Manuf'g Co. v. Shanahan

• Decision Date: 06 October 1891
• Parties: WATERLOO WOOLEN MANUF'G CO. v. SHANAHAN et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 345

28 N.E. 358

WATERLOO WOOLEN MANUF'G CO.

v.SHANAHAN et al.

Court of Appeals of New York.

Oct. 6, 1891.

Appeal from supreme court, general term, fifth department.

Action by the Waterloo Woolen Manufacturing Company against James Shanahan, individually and as superintendent of public works of the state of New York, and William L. Sweet, Justin B. H. Mongin, George Cook, William Fuller, and William Albaugh, to enjoin the improvement of the Seneca river and the old Bear race. From a judgment affirming a judgment for plaintiff, defendants appeal. Reversed.

Chas. F. Tabor, Atty. Gen., for appellant Shanahan.

Charles A. Hawley, for appellants Sweet, Mongin, and Cook.

Fred'k L. Manning, for respondent.

O'BRIEN, J.

The defendant James Shanahan, as superintendent of public works, in behalf of the state, entered into a contract with the defendants Fuller and Albaugh for the performance of certain work in dredging and otherwise improving the channel of Seneca river and old Bear race at Waterloo. The contractors had entered upon the work when this action was commenced, and both they and the superin tendent of public works were enjoined from proceeding therewith; and by the final judgment in the action this injunction against them, and all persons acting under them, is made perpetual. This appeal involves an examination of the reasons and grounds upon which the operations of the state, acting through one of its officers, and in pursuance of legislative direction, have been arrested at the suit of the plaintiff. The judgment in this case decides that the improvement is not authorized by law, and that the consummation of the work contemplated will injuriously affect certain property rights of the plaintiff. It is necessary, at the outset, to get as clear an idea as possible in regard to the nature, origin, and extent of these rights in order to get a more comprehen sive view of the questions involved in the controversy. The plaintiff is a domestic manufacturing corporation engaged in the manufacture of woolen goods on an extensive scale at Waterloo, deriving the power for the operation of its machinery from the waters of Seneca river. It was incorporated in the year 1836, but the water rights and privileges which it owns, and which it is claimed are to be affected by the acts of the defendants, existed long prior to that date. In the year 1802 the state conveyed, by letters patent, 640 acres of land to John McKinstry on the north shore of the Seneca river, where is now the site of the present village of Waterloo. In December, 1807, he conveyed this land to one Elisha Williams, who erected one or more mills on the site now occupied by the plaintiff's factories, adjoining or near the river. The motive power for these mills was furnished by a race or canal constructed by Williams from the river, on the north side, and near the upper end, of what is now Big island, which divides the flow of the water of the river, the main current being south of the island, and on the opposite side from the race. The mills, so erected by Williams, were in operation in the year 1813, when the legislature, by special act, incorporated the Seneca Lock Navigation Company. Laws 1813, c. 144. This company, under the power conferred upon it by law, took the canal or race constructed by Williams, as a part of its canal, reserving to him, however, the right to draw water from the canal, for the use of the mills, not necessary for navigation purposes. The navigation company, in the prosecution of its business, used the river as a high way, except around the rapid places, where it constructed a canal and locks for the passage of its boats, and the mill-race dug by Williams was utilized for this purpose. While the company carried on its operations the situation was this: It had the right to the use of the race, which was made 40 feet wide and between 3 and 4 feet deep, supplied with water from the river, for the passage of its boats, and Williams and his grantees were entitled to all the surplus water from the canal or race for the use of their mills. The respective rights of the corporation and the grantees of Williams to the use of the water flowing through the race, thus converted into a canal for public use, are regulated and defined by the statute under which authority was given to acquire the race, and by a recent decision of this court. Manufacturing Co. v. State, 104 N. Y. 562, 11 N. E. Rep. 264. With the rights of the parties thus vested and defined, the legislature, in the year 1825, authorized the construction of the Cayuga and Seneca canal by the state, and for that purpose authorized the purchase of all the rights and privileges of the navigation company. Laws 1825, c. 271. The state, under this statute and the proceedings thereunder, acquired such rights to the use of the water as the corporation to which it succeeded then had, and no more, and Williams and his grantees still retained the right to the use of the surplus waters then flowing through the canal from the river, and no more. Manufact uring Co. v. State, supra. Subsequently the state found it necessary to enlarge the capacity of the canal, which occupied the old mill-race, by making it deeper and wider. The last improvement in this respect was authorized and executed under chapter 479, Laws 1857. This enlargement resulted in a canal 70 feet wide and a minimum depth of 7 feet, with a maximum depth of 9 feet, in place of the original race, and consequently a greatly increased quantity of water was diverted from the channel of the river into the canal. The plaintiff, having succeeded, through mesne conveyances, to all the rights of Williams, has enjoyed the benefit of the increased body of water, thus supplied by the state, in the additional power which it furnished for the operation of machinery, and the advantage thus gained it now claims as a property right, which it seeks to retain and protect in this action. It has not been found by the court below, nor is it alleged in the complaint, that any right which the plaintiff's grantors had or enjoyed, during the occupation of the race as a canal by the navigation company, is threatened or will be injuriously affected by any act of the defendants. But it is alleged and found that, since 1857, the plaintiff has used and enjoyed the waterpower for its factories, as enlarged and increased by the improvement of the canal, made by the state in that and previous years, with the acquiescence of the authorities of the state having charge of the care and management of the canals, and that such use and enjoyment has ripened, by the lapse of time, into a property right, which is threatened and will be seriously impaired if the contract made by the defendants with the state is carried out.

Thus far our attention has been directed to the origin, nature, and extent of the property rights on the north side of the river, as developed since the grant from the state in the beginning of the present century. In order to appreciate and understand the motives which probably inspired or stimulated the legislation which must be hereafter considered, and which is the real point of contention between the parties, it is necessary to notice other, and what, perhaps, might be called rival, interests and rights which, during the same period, were developed on the south or opposite side of the river, and which must have been materially affected by the operations of the state, and of the corporation the rights of which the state acquired, on the other shore of the stream. About the year 1798 one Samuel Bear settled on lands on the south shore, now the site of South Waterloo, or that part of the village which is south of the river. The Seneca river flows from the outlet of Seneca lake, at the village of Geneva, easterly through the villages of Waterloo and Seneca Falls, and, finally, empties into the Oswego river. It divides the village of Waterloo, one ward being south of the river and other the north. In the year 1804 the state conveyed 100 acres of land to Bear, lying along and south of the river, with the water-power and privileges connected therewith. He also dug a race and erected a mill on his land. The use by Bear of the waters of the river for manufacturing purposes on the south side, through this face, probably antedated a similar use by Williams on the other side, though this fact is not found, and, in our view, is not very material. It is the channel known in the case as ‘Bear Race,’ and entered the river near the easterly end of Big island, and a considerable distance easterly or below the point where Williams tapped the river with his race on the opposite side. The defendants Sweet, Mongin, and Cook are the owners of this race, water-power, and mill, having derived title thereto through mesne conveyances from Bear. The channel of the river was originally along and near the south shore, so that when Bear built his mill the facilities for obtaining a proper supply of water were, apparently,as good on his side of the river as on the other. But subsequently, as we have seen, the navigation company, and, later, the state itself, diverted the water, at a point above, into the canal on the north shore, and the plaintiff's mills, using the surplus, must have had a better supply than the mills on the other side. In fact the plaintiff has succeeded in this case, in the courts below, on the ground that the power of the legislature to appropriate money has been used for the purpose of securing to certain mills, on the south side of the river, a greater supply of water, which must necessarily diminish the surplus from the canal, and thus take property from the plaintiff for the use of persons on the opposite side of the river. This view of the situation, and this conflict of private interests, will enable us to consider the legislation which the plaintiff has thus far successfully assailed.

By chapter 113 of the Laws of 1887 the...