City of Syracuse v. Stacey , 86 Hun 441 ( 1895 )

HARDIN, P. J.

Chapter 291 of the Laws of 1889 contains an act “to establish and maintain a water department in and for the city of Syracuse.” The third section of the act authorizes and directs the water board, for and in the name of the city of Syracuse, “to acquire, construct, maintain, control and operate a system of water works to furnish the city of Syracuse and its inhabitants with water from Skaneateles Lake.” In the fourth section of the act it was provided that in case the water board shall be unable to acquire by purchase “any property necessary for the acquisition, construction, maintenance, control and operation of the system of water works contemplated by this act, including the property, rights of property, privileges and franchises owned or possessed by any corporation * * it is hereby authorized to acquire the same in the manner following.” In the fifth section it is provided that the board may present its petition to the supreme court, at a general or special term thereof, praying for the appointment of commissioners of appraisal to ascertain and determine the amount of compensation which ought justly to be made to either or any of the owners or persons interested in any or all of the property, rights, privileges, and franchises deemed necessary by the board. The section contains a further provision, viz.:

“It shall contain a description of the property sought to be acquired, and must state in effect that the property is requisite to the acquiring, construction, improving, maintaining, controlling or operating said waterworks.”

The section also provides for several other details to be inserted in the petition. Section 6 of the act provides how the petition shall be served. Section 7 confers upon the court power to appoint special guardians for infants and idiots. And section 8 provides:

“Any of the persons whose estates or interests are to be affected by the proceedings may show cause against granting the prayer of the petition, and may to that end disprove any of the facts alleged therein.”

And it also provides:

“The court shall hear the proofs and allegations of the parties, and if no sufficient cause is shown against granting the prayer of the petition, it shall make an order for the appointment of three disinterested and competent freeholders * * * to ascertain and determine the compensation whicli ought justly to be made to the owners or persons interested in the property so to be acquired.”

Further provisions are found in the act regulating further proceedings. Section 18 of the act of 1889 was amended by chapter 314 of the Laws of 1890, and in the section, as amended, it was provided, viz.:

“Before any water shall be taken from Skaneateles Lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water. The city of Syracuse shall at all times protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles Lake in accordance with the provisions of this' section.”

Plaintiff’s petition was prepared and verified on the 14th day of November, 1892. Chapter 95 of the Laws of 1890 contains “An act to amend the Code of Civil Procedure,” and is known as chapter 23 of the Code of Civil Procedure, and the first section of the chapter provides, viz. “This title shall be known as the Condemnation Law.” The chapter contains 28 sections, which are numbered as sections 3357 to 3397 of the Code, inclusive, and in the last section of chapter 95 it is provided, “This title shall take effect- May first, one thousand eight hundred and ninety.” In section 3383, as amended by chapter 247 of the Laws of 1890, it was provided that “so much of all acts and parts of acts as prescribe a method of procedure in proceedings for the condemnation of real property for a public use is repealed,” except such acts and parts of acts as prescribe a method of procedure in certain specified cases, not important to be considered, as they do not relate to the case in hand. It was expressly provided in chapter 247 that that act shall take effect immediately, and it was passed on the 30th day of April, 1890.

In Railroad Co. v. Hammond, 77 Hun, 41, 28 N. Y. Supp. 454, it was said, “A complete system of practice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure.” In Re New York & B. Bridge, 137 N. Y. 97, 32 N. E. 1054, chapter 23 was assumed to be a revision of the condemnation law. Inasmuch as the plaintiff’s proceedings were instituted subsequent to the time when the provisions of the general condemnation law took effect, the provisions found therein should be applied to, and control and govern, such proceeedings.

Plaintiff, with a fixed purpose of acquiring benefits and privileges conferred by section 18, as amended in 1890, instituted the proceedings for the purpose of complying with that part of the section found in the following language:

“Before any water shall be taken from Skaneateles Lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all waterpower rights upon the outlet of said lake to be affected by the proposed storage of water.”

In Sweet v. City of Syracuse, 129 N. Y. 333, 27 N. E. 1081, and 29 N. E. 289, O’Brien, J., said:

“Between the lake and the canal numerous mills are situated, along the outlet, being supplied with power from the running water; and these are some of the water rights referred to in the statute, which the city is bound to purchasé or extinguish.”

In the same case, at page 339, 129 N. Y., and page 289, 29 N. E., Earl, J., said:

“Before any water shall be taken from Skaneateles Lake under the provisions of this act, the city of Syracuse shall acquire or extinguish ail waterpower rights upon the outlet of said lake to be affected by the proposed storage of water.”

In further elucidation of the provisions of section IS, the same learned judge said:

‘•The city of Syracuse shall at all times protect and save harmless the state of New York from and against all claims and demands of riparian owners upon said lake and outlet, for loss or damage occasioned by any act or structure authorized thereby.”

To avail of the provisions of the statute, as thus interpreted, it was the purpose of the city, in preparing the petition in this case, to the end that the rights of tire several defendants might be condemned, and, upon payment being made therefor, that the same be extinguished or acquired by the plaintiff. After the petition was prepared and served, and the parties were given notice thereof, and appeared in court, an application was made to amend the petition. Section 3368 of the condemnation law provides that title 1 of chapter 8 of this act shall also apply to proceedings had under this title. Upon turning to that chapter, we find that"it embraces sections 721, 722, and 723, which confer upon the court power to correct mistakes, omissions, defects, and irregularities, and to amend any pleading or other proceeding by inserting an allegation material to the case. The court, in granting the amendment asked for to the petition, did not exceed its power. Upon turning to the petition, as amended, we find that it contains language inserted therein, as it must be assumed, for the purpose of describing, pursuant to section 3360 of the Code, the property, rights, and interests sought, to be condemned. That section provides that the proceedings shall be instituted by presentation of a petition by the plaintiff—

“Setting forth the following facts: * * * (2) A specific description of the property to be condemned, and its location by metes and bounds, with reasonable certainty. * * * (8) A. demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken.”

In Re Water Com’rs of Amsterdam, 96 N. Y. 360, it was said:

“It has been uniformly held that, in proceedings of this character, extreme accuracy is essential for the protection of the rights of all parties. In re New York C. & H. R. R. Co., 70 N. Y. 191. There must be no uncertainty in the description of the property to be taken, nor in the degree of interest to be acquired.”

Section 18 of the act of 1890, already alluded to, confers upon the water board power, “under the restrictions and conditions mentioned” in the statute—.

“To take and conduct water not required for the Erie Canal, from Skaneateles Lake, to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water shall be so taken, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. * * * The dam and all structures connected therewith, together with the regulation at all times of the flow of water from said lake into the aforesaid pipe, shall be and continue in the exclusive charge and control of the superintendent of public works.”

Further provisions are made as to the power oí the state officers, and then it was declared, viz.:

“It being understood that the rights of the city of Syracuse hereby conferred in and to such surplus waters, are to be subject always to the superior claims of the state thereto.”

The act then provides further “restrictions and conditions” upon the power given to the city to take and conduct water not required for 'the Erie Canal “through a pipe not exceeding thirty inches in diameter,” in the following words:

“Before any water shall be taken from Skaneateles Lake under the provisions of this act, the city of Syracuse shall acquire and extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

Biparian owners upon the outlet have rights and privileges “affected by the proposed storage of water,” and those rights the act authorized and required, the city “to acquire or extinguish” before taking any water from the lake under the provisions of this act. The terms of the statute received construction in this court in Hall v. City of Syracuse, 71 Hun, 466, 24 N. Y. Supp. 959, and it was there said:

“By chapter 291 of the Laws of 1889, the Syracuse water board was created, and power was conferred upon it to acquire, by purchase or condemnation, for and in the name of the city of Syracuse, any property necessary for the acquisition, construction, maintenance, control, and operation of the system of waterworks contemplated by the act. By section 18 of this act, as amended in 1890 (chapter 314), it was authorized, under certain conditions, to take water from the Skaneateles Lake. One of the provisions of this section is that: ‘Before any water shall be taken from Skaneateles Lake, under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake, to be affected by the proposed storage of water.’ It was also provided that the powers granted to the water board to acquire property under the act, and to make payment therefor, shall be deemed to include full power and authority to do and perform all acts and things necessary and proper to enable the city to obtain water from the lake under the provisions of the amended section.”

It may be observed that the act does not, in terms, define the water rights and privileges of the owners upon the outlet, but carefully provides "that whatever rights they have affected by the storage or taking authorized shall be “acquired or extinguished before any water shall be taken” under the provisions of the act. According to this compact entered into by the city with the state, by accepting the provisions of the act, it becomes clearly the imperative duty of the city to acquire and extinguish “all water-power rights upon the outlet of said lake to. be affected by the proposed storage of water.” As we have already mentioned, one of the restrictions and conditions imposed upon the city, precedent to the right to take any of the surplus waters, was the requirement that the city increase the. storage capacity of said lake sufficiently to store therein all the ordinary flow of its watershed. To enable the plaintiff to comply with the requirements of the act, its petition should describe and specify all the water-power rights affected by the proposed storage and tailing of water from the lake. It seems reasonable to suppose the legislature contemplated the necessity of extinguishing all the water powers and rights upon the outlet, and, because of that necessity, required, among the restrictions and conditions imposed upon the city, the one which could be complied with only by acquiring or extinguishing such rights and powers. The petition, as it was after being amended, and as it was precisely when the special term pronounced its judgment in which it was determined that the property named therein was required for public use, and that the city was authorized to condemn, did not describe in clear and definite language all the water-power rights of the several defendants owning property upon the outlet mentioned in the petition and the schedules thereto. In the seventh subdivision of the petition the following language is found:

“The city of Syracuse hereby asks to condemn and acquire all the property, rights, title, and interest of the defendants, and every of them, of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the Erie Canal, and to any part and use thereof as the same flows, or might flow, through the outlet of said lake, along, over, upon, contiguous, and appurtenant to said parcels, respectively, except for the use, diversion, and storage thereof for the uses and purposes of the city of Syracuse and its inhabitants, as a source of water supply, as aforesaid.”

In the prayer of the petition it was asked that it may be adjudged that the public use requires the condemnation of—

“All the right, title, and interest of the defendants, respectively, and every of them, of, in, and to the waters of Skaneateles Lake and its watershed, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous, and appurtenant to the several parcels of land described in the schedules hereof, owned by them, respectively, or in which they have any interest, except so much thereof as from time to time, by lawful authority of the state of New York and its representatives, may be discharged from said lake, and permitted to flow through the outlet thereof for the purpose of supplying the Erie Canal; and that the plaintiff is entitled to take, hold, and forever enjoy the right to store, divert, and use the waters of Skaneateles Lake as a reservoir and source of water supply for the city of Syracuse and its inhabitants as aforesaid, except so much thereof as from time to time, by lawful authority of the state of New York and its officers, may be discharged from said lake, and permitted to flow through the outlet thereof, for the purpose of supplying the Erie Canal.”

In the schedules, after referring specifically to the property of each defendant, it was said:

“The plaintiff asks to condemn and acquire, all and several, the rights, title, and interest of the defendants * * * of, in, and to the waters of Skaneateles Lake and its watershed not required by the state of New York for the Erie Canal, as the same flow, or might otherwise flow, in the outlet of said lake, and upon, along, over, contiguous, and appurtenant to the land and premises adjacent to said outlet described.”

Then follow descriptions of the sundry parcels owned by the several defendants against whom the proceedings were instituted.

notwithstanding the interpretation given to section 18 of the act of 1890 at the trial term, and the construction of the amended petition found in the judgment entered upon the decision made at the trial term, extensive discussions were held before the commissioners as to the meaning of the language used in the petition, so far as it relates to a description of the property and water rights specified and required to be obtained by the provisions of the act. The commissioners, before closing their awards, inserted therein the following language:

“The foregoing awards of compensation are based upon an appropriation by the city of Syracuse of all the water rights of the several claimants of, in, and to the waters of Skaneateles Lake and its watershed, with the right to store in said lake, and to divert therefrom, as may at any time be authorized by law, so much of the waters of said lake and its watershed as shall not be required by the state of New York for the Brie Canal.”

As already stated, section 3360 of the Code requires the petition to contain “a specific description of the property to be condemned and its location, by metes and bounds, with reasonable certainty”; and subdivision 8 provides that the demand for relief shall be for the condemnation “of the real property described,” and that commissioners of appraisal be appointed to ascertain the compensation to be made “to the owners for the property so taken.” It was the duty of the plaintiff to obey the provisions of the statute, and implicitly and accurately follow its requirements. In doing so, it was its duty to insert an accurate, specific description, with reasonable certainty, of the precise property rights to be condemned, to the end that the proceedings should comply with the statute, and the defendants be enabled by the petition to understand just what is taken from them, and just what is left, if anything, after the taking has been had under the proceedings instituted by the petition. The ownership which the defendants have: in the water flow and water rights is a corporeal right,—“an incident of property in, and parcel of the land owned by them.” Scriver v. Smith, 100 N. Y. 471, 3 N. E. 675; Ang. Water Courses, § 90. In Re New York C. & H. R. R. Co., 70 N. Y. 191, it was said there must be no uncertainty in the description, nor in the degree of interest to be acquired. To the same effect is In re Water Com’rs of Amsterdam, 96 N. Y. 361. In Hayden v. State, 132 N. Y. 533, 30 N. E. 961, it was held that, where a permanent appropriation is sought to be had of land or water, “the quantity must be definitely ascertained and described, so that the owner may know how much has been taken, and what he is entitled to be compensated for.” And in the course of the opinion it was said:

“If the water to be appropriated is described as all in a certain lake, or all flowing in a particular stream, such would, undoubtedly, be a sufficiently definite description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it, was appropriated, and the description was too indefinite to effect a legal appropriation.”

In People v. Board of Trustees, 137 N. Y. 89, 32 N. E. 1111, a statute authorizing condemnation proceedings was under consideration, and Andrews, C. J., observed, “the statute can only be satisfied by a reasonably accurate description by boundaries or fixed monuments” ; and in that case it was intimated that the difficulty was not cured because, in the course of the hearing, the claim of the petitioner was limited “to a strip of land ninety feet in length.” In Railway Co. v. Dominick, 55 Hun, 199, 8 N. Y. Supp. 151, condemnation proceedings were brought in review, and it was there said that, in a proceeding “to condemn property rights, extreme accuracy is required in the description of the property sought to be acquired, and there must be no uncertainty in such description, or in the degree of interest sought to be acquired.” In the course of the opinion in ■ that case it was said “the property owner’s rights should not be left even to doubtful, though plausible, construction.” It was claimed by the learned counsel for the plaintiff before the special term, and before the commissioners, and has been argued before this court that the “appropriation by the state in 1843 of the Skaneateles waters cut off the right of riparian owners along the outlet”; and a similar claim was made by the attorney general, in behalf of the state, in the case of Waller v. State, 144 N. Y. 579, 593, 39 N. E. 680. That claim has been refuted by the court of appeals since the decision of this case at special term, and that court has held “that the rights of the owners on the stream below were not included in the words of appropriation in the resolution of the canal board, and so they had no grounds upon which to base an appearance, and claim any permanent damage to their rights.” In the course of the opinion of Peckham, J., delivered in that case, he said:

“We do not think that by the action of the canal board or the canal commissioners, or their combined action, these rights of the owners upon the stream below were included in the words of appropriation in the resolution of the canal board. Therefore, neither they nor their predecessors had any ground to base an appearance upon before the canal appraisers, and attempt to prove any permanent damage to their rights by virtue of the resolution of appropriation. The appropriation did not touch them or their rights. * * * This policy on the part of the state not to then take the rights of the riparian owners further down the stream was not unwise at the time. For more than twenty years after the appropriation, as stated, there was no trouble with these owners, and the state had all the water it required. And for more than twenty years in addition the occasions have been few for withholding the water to the damage of the owners. It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present. The state continued on, therefore, and when the necessity arose for temporary withholding water it was done, its liability for the damage it thus caused was acknowledged, and it was paid by legislative action. It is conceded that the state has never in fact paid for the permanent appropriation of these rights, and we find no hardship in making it liable for causing them temporary damage since the last payment on that account. * * * The act itself, however, which enabled the city of Syracuse to take the water upon conditions specified, recognizes that there might be important rights on the part of these lower owners on the stream; and indeed the act seems to assume that there were, and it provides that the city shall not go on with the construction of the work unless, under certain circumstances, those rights are extinguished as provided for in the act.”

That opinion comes to the conclusion that “the claimants made out a good cause of action against the state for damages sustained by them by the withholding of the waters of the Skaneateles creek” (or outlet) in 1892, as described in their claims. It seems, as between the plaintiff and the defendants, the defendants, as owners, were entitled to a free and uninterrupted flow of the water in the outlet, without any interference, diminution, or depreciation thereof on the part of the state, until the water-power rights and privileges were acquired and extinguished by the city. The legislature is the sole judge of the expediency of allowing an interference with the natural rights of the citizens of the state in water powers and rights owned by them, and as to the expediency of exercising the right of eminent domain for any public purpose. Varick v. Smith, 5 Paige, 137. In Be Poughkeepsie Bridge Co., 108 N. Y. 490, 15 N. E. 601, Andrews, J., said:

“The power of eminent domain, which resides in the state, as an attribute of sovereignty, is nevertheless dormant until called into exercise by an act of the legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient; and the state can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore it is that wherever an attempt is made, either by the officers of the state, or by a corporation organized for a public purpose, to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to the statute conferring it. In the absence of statutory authority, private property cannot be invaded by this power, however strong may be the reasons for the appropriation. In construing statutes which are claimed to authorize the exercise of the power of eminent domain, a strict, rather than a liberal, construction is the rule. Such statutes assume to call into active operation a power which, however essential to the existence of the government, is in derogation of the ■ ordinary rights of private ownership, and .of the control which an owner usually has of his property.”

Under that wholesome doctrine, it is not unreasonable to exact of the petitioner in this case that it should fulfill and carry, out all the conditions and restrictions imposed upon it by the legislative acts under which it seeks to derive important and valuable rights and privileges. So1 far as the conditions and restrictions found in the statute relate to the rights of the defendants, they are entitled to have the full benefit thereof. Nor does the fact that the legislature authorized the plaintiff to take by means of a conduit with 30-inch carrying capacity, which would be about 15,000,000 gallons per day, deprive the defendants of the right to have the full benefit of the restrictions and conditions named in the act carried out, and that the acquisition or extinguishment shall be of all water powers and water rights upon the outlet. Earl, J., in speaking of the acts authorizing the city to acquire water, says, in Sweet v. City of Syracuse, supra:

“The right given to the city of Syracuse to draw water from the lake is, as we have seen, in its very largest extent, a mere license, to be exercised under the constant supervision of the state, and subject to its paramount right and control. * * * This is not a gratuitous appropriation. The city is to increase the storage capacity of the lake, and erect and maintain at its own expense a dam, and the structures connected therewith. There are two parties to the bargain, each of which gets some advantage.”

And it was competent for the legislature to enact that, “before any water shall be taken from Skaneateles Lake under the provisions of this act, the city of Syracuse shall acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water.” Judge Beckham, at page 599, 144 N. Y., and page 680, 39 N. E., of Waller v. State, distinctly assumes that the state had not acquired the rights of riparian owners upon the outlet. He says:

“This policy on the part of the state not to then take the rights of riparian owners further down the stream was not unwise at the time. * * * It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present.”

It was competent for the legislature in 1890, in amending section 18, to declare the necessity, and by imperative requirement, as a condition of the license then given to the city, to burden it with the duty to “acquire or extinguish all water power rights upon the outlet of said lake to be affected by the proposed storage of water.”

Neither the petition, the findings of the trial court, the judgment^ or the award of the commissioners, “specify” or “describe” definitely and certainly the quantity of water necessary for the Erie Canal. The canal is some nine miles from the lake, and it is supposed that the water that passes from the lake goes down along the outlet before it reaches the canal, requiring a lapse of something like 12 hours’ time. In the language used by the learned attorney general in another forum, it may be properly said “the quantity of water used for the canal is necessarily uncertain, depending on the volume of commerce, and accidents to the canal banks.” The theory of the plaintiff, as evinced by its petition, and announced at the trial term, and as indicated by the decision and judgment thereof, as well as the special language found in the awards, seems to be based upon the idea that the state, by virtue of the resolution of 1843, worked an invasion of, and an acquisition of, the original water rights and privileges of the owners of the lands upon the outlet. The logic and theory of the opinion in Waller v. State, supra, are adverse to such theory, as in the latter case the court held “the rights of the owners upon the stream below were not included in the words of appropriation in the resolution of the canal board.” It has been repeatedly held that the right to divert the waters from a natural stream “can only be acquired under and by virtue of the sovereign right of eminent domain, and upon making just compensation.” Varick v. Smith, 5 Paige, 137; Clinton v. Myers, 46 N. Y. 511; Scriver v. Smith, 100 N. Y. 471, 3 N. E. 675; Smith v. City of Rochester, 92 N. Y. 465, and cases cited in the opinion of Ruger, C. J. The doctrine of the cases just mentioned was referred to with approval in Hardin v. Jordan, 140 U. S. 394, 11 Sup. Ct. 808, 838. The acts of 1889 and 1890 authorized the plaintiff, in furtherance of its system of waterworks, to bring to its aid the power of eminent domain, it being competent for the legislature to give such power. In re Union Ferry Co., 98 N. Y. 153. The proceedings instituted by the plaintiff rest upon those acts and the general condemnation law found in the Code.

The logic and doctrine of the opinion delivered in Waller v. State, supra, since the trial and decision of these cases at special term, and the views herein expressed, lead to the conclusion that, under the peculiar circumstances of these cases, the judgment at special term, and the awards and order confirming the same, should he reversed, as to the appellants. However, the petitioner may be able to supply the necessary averments, and may also be able to cure the defects of description; and it should therefore have leave, if so advised, to apply at special term, with the proper papers, for the amendment of the present petition and proceedings. If such amendment be granted, the present proceedings may stand, and be continued, as to the appellants. The order so far as appealed from is reversed, with $10 costs and disbursements, and appraisal vacated, and judgment reversed, with costs of the appeal to the appellants, and a new trial granted, if plaintiff elects, within 30 days after the entry of an order upon this decision, to proceed with the proceedings, and applies for leave to amend its petition. If such leave is not applied for or granted, the petition is dismissed, with costs of this appeal and the trial court. All concur.