Benedict v. State — 30 N.Y. St. Rep. 651

Majority

p. 651

Allen Benedict, App’lt, v. The State of New York, Resp’t.

(Court of Appeals, Second Division,

Filed April 15, 1890.)

Headnote

State—Permanent appropriation op land—Limitation.

By tile erection of a dam in the Black river, pursuant to chap. 151, Laws 1864, the waters of the river were caused to overflow plaintiff’s land, filling the ditches, and preventing drainage, thus keeping the water in the soil, and destroying the grass. The dam was intended to he a permanent structure. Held, that the overflow was the taking of a permanent easement by the state for the use of the canal, and fell within the act of 1880; that the appropriation took place when the dam was erected, and that the claim was barred at the expiration of one year from that time.

Appeal from a decision and order of the board of claims, affirming an award of “ nothing ” made by the canal appraisers upon a claim for damages to lands sustained from.the overflow thereon of the waters of the Black river, which overflow was caused by a dam erected in said river by the state pursuant to chapter 151, Laws of 1864.

Levi II. Brown, for claimant; John W. Hogan, dep. att’y-gen’l, for the state.

By repeated adjudications of this court it has been established that chap. 321 of the Laws of 1870 does not confer a new jurisdiction to hear claims against the state for the taking of a fee in lands, or for the appropriation of a continuous and permanent easement therein for canal purposes, and that the act named was intended to supplement and extend existing jurisdiction by adding authority to hear and determine new cases for which existing legislation afforded no remedy. Mark v. The State, 97 N. Y., 572 ; Heacock v. The State, 105 id., 246 ; 7 N. Y. State Rep., 353; Stewart v. The State, 105 N. Y., 254 ; 7 N. Y. State Rep., 358.

The cases that fall generally within the act of 1870 are’ ones for damages arising from the canals themselves, their use and management, or the negligence and conduct of canal officers in

p. 652

matters relating to or connected with the canals. If the claim is one arising out of the permanent appropriation by the state of lands or an easement therein and which will presumably continue while the canals exist, the land owner’s remedy is controlled by the Revised Statutes, part 1, title 9, chapter 9, §§ 46-48, or by Laws 1830, chapter 293.

We think the injury for which the claimant seeks to recover was of the latter class. There is in the claim presented no allegation or assertion of negligence, nor is the injury one of a temporary character. It arises from the construction of a dam across the Black river which caused a portion of the claimant's lands to be overflowed, filling the ditches and preventing drainage through them, thus keeping back the water in the soil and destroying the grass.

The construction of this dam was authorized by chap. 151, Laws of 1864, and was for the purpose of improving the navigation of the Black river between the mouth of Otter creek and Carthage. The Black river at this point is a part of the canal system of the state. Chap. 157, Laws of 1836. The dam was intended to be a permanent structure for the purpose of increasing the depth of water in the river, and the overflow upon the plaintiff’s lands was the taking of a permanent easement by the state for the use of the canal.

The case, therefore, fell directly within the law of 1830, which provides, in § 1, “ when any lands are overflowed by the erection of any dam by the canal commissioners on any river or stream connected with the public works, it shall be the duty of the canal appraisers to make a just and equitable appraisement, etc.” The claim was required to be presented within one year. Section 2 same act; chap. 9, title 9, part 1, § 48; chap. 836, Laws 1866, § 5 ; Stewart v. The State, supra.

There is no substantial difference between the case last cited and the one at bar. In the case cited the claimant alleged the appropriation of his lands to be permanent. In this case it is apparent that such is the fact. The dam was completed August 31, 1868, and the claim was presented March 29, 1871. The neglect to present the claim within one year after the construction of the dam was a waiver of all right of damages against the state. Mark v. The State, supra.

It is claimed that the damages were not sustained at the time of the completion of the dam, and that it could not be known whether there would be any damages until the effect of the soakage upon the grass could be seen in the summer of 1869.

The statute provides that the claim must be presented “ within one year after such premises shall have been taken or permanently appropriated,” and we are of the opinion that the state appropriated the land when the dam was completed and the water in the river raised.

The statute was, therefore, effective against the claim on the 31st day of August, 1869.

The order must be affirmed.

All concur.