In re State Reservation at Niagara

The ninth section of the act of 1883, provides that within twenty days after confirmation of the report an appeal may be taken to the supreme court from the appraisal and report, which may be heard at general term ; that on the hearing of such appeal the court may direct a new appraisal before the same or new commissioners, and that “ the second report shall be final and conclusive on all the parties interested.”

The counsel for the appellant contend that the provision denying the right of review of the second report is in violation of art. 1, § 6, of the constitution of the State, and of the fourteenth amendment of the constitution of the United States, in that it seeks to deprive him of property without due process of law.

The property cannot be taken without compensation, and until there is a certainty that it will be paid, or may be obtained, the owners cannot be divested of their property. That rule applies no less to the State than to a private corporation ; except that, in view of the fact that the whole property in the State is held subject to the power of taxation for its legitimate purposes, it may not be required to pay before it can acquire title to property for public use by means of the right of eminent domain; yet, before it is taken, an adequate remedy must be provided which will enable those entitled to payment to seek and obtain it through the aid of the courts, if it may become necessary to resort oto them (Bloodgood v. M. & H. R. R. Co., 18 Wend. 9 , 18 ; Rexford v. Knight, 11 N. Y. 308 , 314).

The question raised by the appellant’s counsel is that the act of 1883, has provided that its continued existence as a law to support the proceedings, and the validity of them, taken under it, should depend upon subsequent legislation which has not been had to the extent required to support them, because the later act does not contain provisions which give certainty that the appropriation there provided for and permitted will cover the amount required to pay the compensation which may eventually be awarded for property ; that it arbitrarily limits the amount to be paid and received to that of the sums awarded, while the possibility exists for its increase by new appraisal and

The apparent amount required to make such payment is provided for by the act in question. The report of the commissioners, while it stands as confirmed undisturbed, has the character of a judgment, and is presumed to represent the sum to which the owners are entitled as compensation. The appropriation was made to provide for such payment, and it does not appear that it may not be sufficient to pay the awards in the event of a new appraisal. We think the proceeding has not fallen for want of legislation.

The other questions presented have relation to the value of the property of the appellant embraced within that so selected and located, with its appurtenances, which involved the consideration by the commissioners, to some extent, of the rights the owners of these premises had, to take and appropriate water from Niagara river for hydraulic purposes; which depended somewhat upon the question whether or not the river was a navigable one, and the title to the bed of the easterly half of it was in the State ; and if so, whether a prescriptive right had been acquired to divert from it water to the premises for the uses to which it was there applied, and to maintain structures in the river for that purpose. The commissioners held that it was a navigable river, and that the riparian owners had no title to any portion of its bed, and no right, as against the State, to maintain such structures in it to divert its waters, unless it was afforded by such continued use as to permit the presumption of a grant. But they allowed compensation based upon such right, without definitely determining that it existed.

It is contended that the grant under which the

Amongst the lots on the lower canal, and included in such partition, were those numbered 16, 18, 20, and half of lot 14, of which Hill and Murray became the owners in 1877. They constitute the premises in question.

For the purpose of supplying this canal with water, a wing dam has been constructed of the length of three hundred and sixty-five feet, extending into and up the Niagara river from the head of the canal, and by which the water is diverted and conducted into it. The dam is supported by the bed of the river.

From this canal, water is taken on to the lots adjacent to it, and applied as power to propel machinery. The appellant has a pulp-mill on his premises so operated. And the value of the property depends largely upon the right to maintain this dam to supply the

By the common law, titles to the beds of navigable rivers were in the sovereign; and grants of land bounded by such rivers passed title to high-water mark only, while grants of land on one side of and bounded by rivers not navigable included one half of the stream, and made its thread the boundary line.

Those in the common law sense of the term deemed navigable, were rivers only in which and where the tide ebbed and flowed. In many of the States, that rule in its strictness has been and is applied, and in others, the large fresh-water rivers, having adequate capacity and used for general purposes of navigation, are deemed navigable, and the States assume to have the proprietary interest in, and j urisdiction over, them; and substantially the same rule is applied to them as that of the common law to those whose waters are subject to tidal influence, with the difference in some instances that the low, instead of the high, water mark is adopted as the boundary line of the riparian owners. This distinction is one of property only, and does not affect the public easement; for by the common law all freshwater rivers of sufficient magnitude and capacity for navigation are public highways, and although the entire proprietary interest of them is in the riparian owners, they have such title subject to the easement of the public, which they cannot lawfully interrupt (Browne v. Scofield, 8 Barb. 239 ; Treat v. Lord, 42 Me. 552 ; S. C., 66 Am. Dec. 298 ). But the right to the usufruct and enjoyment of the waters for any purposes to which water or its power may be applied, is appurtenant to the ownership of the adjoining land, and may be so appropriated by the riparian owner, subject

And in the later case of Smith v. Rochester ( 92 N. Y. 463 ), the views expressed in the opinion delivered, were to the effect that the common law rule applied to the fresh-water rivers in this State without reference to their size, capacity or importance for the purposes of navigation, and, consequently, to all those where the flux and influx of the tide was absent, the riparian owners whose lands are bounded without restriction by such rivers or their banks, take title respectively from either side to the thread of the stream, with all the rights appurtenant. And that the Hudson above tidal influence, and the Mohawk, are distinguished from other fresh-water rivers by reference to the fact that the early and original settlers along those rivers derived their titles from Holland, where the civil law prevailed.

It may be difficult on principle to see how the civil law gained and had supremacy in the valleys of the Hudson and the Mohawk, but it may be that long assumption and recognition as between the State and the oxyners there, in respect to the proprietary rights to those rivers, are entitled to consideration in determining their status. But the opinion proceeds to say that it is generally conceded that this doctrine of the common law is “inapplicable to the vast fresh water lakes or inland seas of this country, or the streams forming the boundary line of States.” And in the

The line between the United States and Canada is located in the center of Niagara River (Treaty of 1783, 8 U. S. Stats, at L. 55; and that of Ghent in 1814, Id. 221). And such is the boundary of Niagara county (Laws of 1808, ch. 40). So far as our attention has been called to any authority relating to this river, it has been recognized and treatéd as in every sense a public river, as much as if it was an arm of the sea in which the tide flowed, and acknowledged as such (Canal Appraisers v. People ex rel. Tibbits, 17 Wend. 571 , 623 ; Kingman v. Sparrow, 12 Barb. 201 ).

And we think, because it is navigable in fact and constitutes the natural boundary between this and another country, is the reason why the proprietary right from its margin to such boundary line is in the. State, and that the riparian owners have taken by the. grant referred to only to the water’s edge of the. stream. And that the fact, that at the particular place in question the river is not navigable by reason, of the interruption produced by the Palls, does not qualify or distinguish it in that locality as a public river from its general character.

We do not deem it necessary for the purposes of this case to further express any opinion in respect to. the applicability of the common law doctrine referred to, to the large rivers in this State which constantly afford facilities for floating large vessels, except when navigation is interrupted by ice.

It follows that the riparian owners had no lawful

And a map of 1836 was produced, which located the terminus of the dam one hundred and thirty-five feet short of where it is at present.

This question of fact was with the commissioners, and justified the conclusion that the wing dam had not for forty years had the length it now has by at least one hundred and thirty-five feet. The canal as it now is was partially made in 1813, was extended from time to time from 1819 to 1836, when it was taken as far down as the premises in question. And the first building erected on them was a saw-mill in 1841, to operate which water was taken from this canal.

This mill was destroyed by fire about the year 1848, and no structure was placed on the premises requiring water-power until 1865, when a stone foundry building was erected there and about ten -horse power of water from the canal was applied to run it; and in 1876-7 that structure was converted into the present pulp-mill, which contains much machinery and requires a much larger amount of water-power supplied by the canal. But from 1833 there were mills on some of the lots above these premises, operated by water taken from the canal.

The use and enjoyment requisite to support the prescriptive right claimed relates as well to the use or diversion of the water as to the continuance of the dam (Stiles v. Hooker, 7 Cow. 266 ). The right to the usufruct of the water (except for purposes of navigation) is proprietary, and that of the State is paramount (Gould v. Hudson River R. R. Co., 6 N. Y. 522 ; Crill v. City of Rome, 47 How. Pr. 398 , and cases there cited). And although the riparian owner as such may use

While the right to maintain the dam upon the bed depends upon the requisite uninterrupted continuance of it at the place where located, the right to use the water of the river is dependent on the like continuous diversion of it.

It does not very clearly appear how much water had been taken into the inlet and canal for the period of forty years before the proceeding was instituted. The evidence in respect to that fact is found in the character of the dam and its effects in the diversion of water from the river into the canal. If it be assumed that it was within that time one hundred and thirty-five feet less in length than it now is, the water then taken by it was.considerably less than at present. There is evidence tending to prove that the reduction of its length one hundred and twenty feet would reduce the quantity of water diverted by it thirty per cent. The commissioners were permitted to find that there was no prescriptive right as against the State to take from the river and use the quantity of wafer which is taken by the dam as now extended. There has been a dam of upwards of two hundred feet in length which continuously for upwards of forty years gave some supply of water to the canal, and assuming that the right was acquired to thus maintain the dam, it necessarily follows that as a consequence the diversion of the water into the canal which it would produce would also result as a right.

The evidence does not very definitely permit the measure of the quantity which would be supplied to the canal by the pier or dam so curtailed.

The commission, without expressing any definite

The contention of the counsel for the respondents, that this dam was a public nuisance, and therefore its continuance and use could not ripen into a right, we think, is not supported.

It is conceded that the river is incapable of actual navigation at this place, and the diversion of the water there does not affect the river for that purpose elsewhere. A public nuisance is an injury to the jus publicum, which in this river is that of navigation only.

The common right of the public is in no manner interrupted or liable to be impaired by this structure where it is located. Beyond the fact of navigation, the rights in the river are proprietary, only the invasion of which is to be dealt wiih as such. The common right of navigation in navigable rivers of the State is in the people, and the equality of their right to use them for that purpose cannot be abridged except by themselves through the power they have delegated to the legislature (People v. N. Y. & S. I. F. Co., 68 N. Y. 71 , 78).

A question is presented in respect to a piece of land reclaimed from or made in the bed of the river opposite these premises and adjacent to the bank. On the hearing there was conflict of claim to that made land, founded in the contention of those succeeding to the rights of the parties who took under the original grant, that the premises conveyed to Hill and Murray did

If that contention is supported in fact, he is not entitled to it, because the right to accretions as such in the bed of a river depends upon actual contiguity. And any separation of his land from such alluvion by that of another, however narrow it may be, defeats his right (People ex rel. Banks v. Colgate, 67 N. Y. 512 ; Saulet v. Shepherd, 4 Wall. 502 ; The Schools v. Risley, 10 Id. 91; Barney v. Keokuk, 94 U. S. 324 , 334 ; 3 Washb. Real Prop. 55).

But it seems unnecessary to determine the question of boundary, as the formátion was not such as to govern title to it by that of the contiguous bank. To vest such a title it was necessary that the formation must have been gradual or imperceptible in the legal sense of the term (3 Washb. Real Prop. 59; Halsey v. McCormick, 18 N. Y. 147 ; Cook v. McClure, 58 N. Y. 437 ; County of St. Clair v. Lovingston, 23 Wall. 46 ).

This was not done in that manner, nor was the formation produced naturally or artificially wholly by the action of water, but by the deposit there of material excavated in the construction of the canal. This did not divest the State of its ownership in the portion of the bed of the river so reclaimed (Whetmore v. Brooklyn Gas Light Co., 42 N. Y. 384 ).

The learned counsel for the appellant contend that his property was greatly undervalued by the commissioners and that the compensation was very inadequate. And while this contention relates to the premises exclusive of his alleged water-rights applicable to them, the latter are the subject of the greater discrepancy between the amount claimed and allowed. By the arrangement, as has been seen, which distrib

In 1840, when such rights were defined, the waterwheels in use were those known as the tub, breast, overshot and undershot wheels, and as then ordinarily used, it required from ten to twenty-five horse-power to drive one run of mill-stones. And in the use of those waterwheels an efficiency of only from sixteen to forty per cent, of power was realized, although the overshot wheel, when well placed, might give sixty per cent, effective power; but this required comparatively expensive preparation which was not usually accomplished.

Since then, improvements have been made,' and brought into use water-wheels which give from seventy-five to upwards of eighty per cent, efficiency, and especially is that afforded by what is known as the turbine wheel. So that, with the same quantity and head, the efficient power is greatly increased for the propulsion of machinery upon these premises. And since 1840, the head has by excavation been increased from eight and a half feet to upwards of sixteen feet practical head, thus doubling the power which may be appropriated to such uses.

Upon this method of calculation, a largely increased efficiency is found, and an estimated rental value per horse-power is made on that basis, and when capitalized produces a sum very much in excess of that awarded to the appellant; but on this subject of value there is a wide difference and conflict between the witnesses of the respective parties.

The appellant has been permitted by an act of the legislature passed April 7, 1885, to present to the court on this appeal as evidence, a judgment-roll in an

It is contended that this record is conclusive evidence in this proceeding, of the rights of the appellant in respect to the water, and establishes the fact that with increased head and improved wheels he has for his lots the right to appropriate upwards of six hundred effective horse-power.

The act referred to does not give the record that effect, but directs that it shall be considered by the court on the appeal “ as to its competency, materiality and relevancy, as if said evidence had been received by the commissioners of appraisement under objection and exception.” So that the legislature has not adopted this adjudication as effectual to establish against. the State, any rights of the parties to the action by the judgment declared.

The record stands upon its own merits, and has in

The rule is general, that a judgment is not evidence against one who is neither a party to the record nor a privy of the parties to it, or some of them (1 Greenl. J$v. §§ 522, 523).

By this judgment is declared the right of the parties to take to their premises and use a certain quantity of the water of the Niagara river. If that be assumed, then the matter of distribution by the judgment which concluded the parties might be effectual to establish their rights, as between them respectively, and a third party interfering with their rights. But the difficulty is, that the State, originally having the proprietary interest in the use of the water of the river, does not concede, but contests, their claim of righ t to the use of the water, and not having been a party to that action, and no opportunity to be heard there, the judgment in that respect has no force as against it. And when we come to inquire about that on the assumption of a prescriptive right of those parties, the question arises, how much water did such right afford them?

It appears that the commissioners were permitted to conclude, and it may be assumed that they did hold, that those parties had no such right to the use of the water which was diverted by the dam, as it was at the time of the hearing, and that a considerable portion of it had. been added within forty years. And it appears by the evidence, that by the lengthened dam the quantity taken into the inlet was only seventy-two thousand cubic feet per minute, and only thirty-one thousand cubic feet per minute of that entered the canal; that thirty-three thousand feet per minute went over the spillway into the river above the canal, and the residue escaped by leakage and waste.

There is, therefore, no support for the contention

But the supply of the quantity of water, assumed as the basis of the estimates contended for, will be much more than has ever been taken by means of the dam as it is.

It is contended in support of the claim that, having acquired the right to that portion of the bed of the river embraced within the wing dam, the parties have the right to draw over that section of the bed any amount of the water of the river they can cause to flow there, and that it is immaterial how much they have hitherto drawn through it or used. And that, therefore, the commissioners erroneously based their right upon the quantity used.

But, as the paramount usufructuary right to the water is in the people of the State, the riparian owners can have no greater right by prescription in respect to quantity than that afforded to them by the condition of the means of the diversion as maintained continuously for the prescriptive period. A right so

The people of the State by their legislative power are seeking to appropriate to a public use—to the use of themselves—that which is theirs, and by the right of eminent domain, property of certain individuals.

The right to the use of the running water of the river, except so far as it has become appurtenant to the property of the claimants by an acquired prescriptive right of diversion and use, remains in the people of the State, with the right to treat it as exclusively for public purposes. The right of diversion so acquired by those parties, as against the State, must be limited to the quantity and extent of diversion for forty years.

It cannot be enlarged by the creation of additional means for appropriation of the use of it. And it may be assumed, that in that view the commissioners applied the rule of measure to the rights of the claimants in that respect. So that, assuming the existence of the right of diversion to the same extent as the structures maintained for that length of time may produce for the use of the land-owners, it is quite evi- • dent that the appellant is not entitled to the quantity of water, or of power from it, for his premises, which is claimed in his behalf. And we cannot say, in view of all the evidence, that his rights in that respect have been under-estimated by the commissioners. It does not in any manner appear that the commissioners applied erroneous principles to their method of esti

There is apparent conflict of evidence in respect to the value of the property, by some of which it is estimated below the amount of the award, and by some, very much in excess of it. It was such as to present a question of fact for the commissioners to determine. And they were required by the statute to, and did, take a personal view of the premises.

We have carefully examined the evidence on that subject, and think their conclusion was justified and is supported by it. • And we cannot say that the commissioners failed to award a just and proper compensation.

We fail to discover any substantial error in the admission or exclusion of evidence on the hearing.

The appraisal and report and the order of confirmation should be affirmed.

Smith, P. J., and Barker, J., concurred.