Pocontico Water Works Co. v. Bird — 22 N.Y. St. Rep. 827

Majority

p. 827

The Pocontico Water Works Company, Resp’t, v. Seth Bird et al., as Water Commissioners, App’lts.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1, Rifabian bights—Acquired by wateb company—Injunction.

"The plaintiff is a corporation organized for the purpose of supplying water to cities and villages. Laws i 873, chap. 737. It legally acquired by purchase and condemnation various riparian rights on the Pocontico river. The rights appurtenant to the land of one Hart, are necessary for its purposes, and proceedings to acquire them have been instituted The defendants propose to locate a dam and reservior on Hart’s land, for the purpose of drawing water to supply the village of Tarrytown, and to that end undertook to acquire riparian rights. Held, that the defendants should not be permitted to condemn and take any part of the plaintiff’s rights, as it might result in substantial destruction of the plaintiff's franchise.

:2. Same—When taken fob quasi public uses.

When the plaintiff acquired its riparian rights, they became something more than mere riparian rights; they were taken for quad public uses; they retained all the elements of riparian rights to which were added the uses for public purposes.

Appeal from an order of the special term, Westchester •county, granting an injunction restraining defendants from building a dam.

The plaintiff a corporation organized under Laws 1873, ■chap. 736, and Laws 1876,' chap. 415, supplementary thereto, for the purpose of supplying water to cities and villages, brought this action to restrain the defendants, as the board of water commissioners of Tarrytown, from building any water system on the premises of George Hart and others on the stream known as the Pocontico river, alleging that it will interfere with their rights, since it owns by purchase and condemnation various riparian rights in the river. The water privileges both above and below Hart’s land had been secured, and proceedings to acquire these appurtenant to Hart’s land had been commenced. The plaintiffs have several" large contracts and are negotiating for others. The defendants propose to locate a dam and reservoir on Hart’s land for the purpose of damming water from the stream

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there to supply the village of Tarry town; and undertook to acquire riparian rights for their use. The plaintiffs procured an injunction against the defendants locating their dam as projected, and from that order, granting the same, this appeal is taken.

J. S. Millard and Henry C. Griffin, for app’lts; Edward T. Lovat, for resp’t.

—It is now found by the learned trial judge that these riparian rights appurtenant to Hart’s land were necessary for the plaintiff’s purposes. True, the evidence of this necessarily rests largely upon the opinion of witnesses. But it was scarcely possible- to give any other evidence on that point, unless it should consist of the details' of facts upon which the opinion was based. Some of these were given or are apparent.

The plaintiff’s works were constructed not simply with reference to the wants of the village at the time of the construction, but for the future. We can readily see how and why these opinions should be sound. Hence the finding upon this point seems reasonably sustained by the evidence. Assuming that fact, we fail to see how the defendant can be permitted to condemn and take any part of those rights. It might result in substantial destruction of the plaintiff’s franchise, and that was scarcely contemplated by the laws authorizing condemnation. If defendants may take these rights, why may not some new company come and take them again, and so on, to the practical destruction of the public objects and benefits upon which the right to condemn depends. This is not the case of a street.

We do not overlook the point that Hart’s riparian rights have not yet been acquired by plaintiff, but that does not alter the difficulty. When plaintiff acquired its riparian rights appurtenant to other property they became something more than mere riparian rights. They were taken for quasi public uses. They retained all the elements of riparian rights to which were added the uses for public purposes. 0

Now what is it that defendants propose to do? The essential feature of their scheme is that they propose to divert the waters of the river. That will be an injury to the riparian rights which plaintiff owns. Those rights might be condemned if they stood alone; but not the new rights, which were superadded to and impressed upon .them. These views seem to us to justify the decision of the learned trial judge.

But it is also apparent that when plaintiff obtained all riparian rights of Brombacher’s Sons, that the same in-

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eluded all the surplus water that would flow over the plaintiff’s dam to the storage reservoir. Of course the plaintiffs could not go upon Hart’s land, but Brombacher’s Sons had a right to the natural flow of all the water that-came down in streams from Hart’s land.

The findings of fact seem to be fully sustained by the evidence, and such findings justify the judgment. We find nothing in the exceptions prejudicial to the defendant.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J." not sitting^