Majority
p. 358Nathaniel Stewart, App’lt, v. The State of New York, Resp’t. (Court of Appeals, Filed April 19, 1887.)
Headnote
Canals—Laws 1870. chap. 821.The act of 1870 does not relate to or confer a new .-jurisdiction to hear claims for the taking of a fee, or for the appropriation of a continuous and permanent easement by the state, and so does not cover claims for injury through the rebuilding of a state dam, which is a permanent structure, necessary for the canal navigation, where its effect in setting-back the water is so evidently permanent and lasting as to show that if the state did not formally take a fee, it at least took a continuous and lasting easement, almost equivalent to an entire appropriation of the land.
Appeal from board of claims.
William C. Stephens, for app’lt; I). O'Brien, att’y-gen., for resp’t.
Our decision in the case of Mark v. State ( 97 N. Y., 580 ), and in Heacock v. State (ante —), just rendered, establish that the act of 1870, whatever may prove to be its entire scope, does not relate to or confer a new jurisdiction to hear claims for the taking of a fee, or for the appropriation of a continuous and permanent easement by the state. The injury to this claimant was wholly of the latter character. He alleges that the state, “for the purposes of canal navigation, rebuilt the dam at Oswego Falls, on the Oswego river and canal; that, by reason of such rebuilding, the waters of said Ox creek were set back upon the lands of claimant and the said stream became
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sluggish, and the current almost wholly destroyed; that the channel of said stream became filled with growing flags and grass, and by the accumulation of earth and other material, whereby the waters thereof do not pass off, but remain the entire year on said lands, rendering them valueless for any purpose whatever, and destroyed the timber thereon; that the damage to said claimant, by reason of the acts and facts stated, is from one hundred' and fifty to two hundred dollars per acre.” The dam referred to was a permanent structure, necessary for the canal navigation, and its effect in setting back the water was so evidently permanent and lasting as to show that, if the state did not formally take a fee, it at least took a continuous and lasting easement, which was almost in its consequences equivalent to an entire appropriation of the land. There was neither assertion of negligence, nor proof, or offer to prove the same, and so the claim was not provable under the act of 1870, because already provided for under the act of 1830, or the amendatory act of 1866. Whatever doubt there may be as to the character and scope of the limitation in the act of 1830, there is none as to that in the amendment of 1866. The claim was required to be presented in one year. The only question here is whether the claim was for a permanent appropriation of the appellant’s lands to the use of the state. He himself so declares. He alleges a permanent easement taken by the state for the use of the canals, and corresponding damages. He therefore had a remedy before the act of 1870, and not under that act. The award should be affirmed.
All concur.