New York Power & Light Corp. v. State

Van Kirk, P. J. This claim against the State is for damages caused to claimant by a dam in the Mohawk river at Crescent, Saratoga county, above the old aqueduct, erected by the State as part of the Barge Canal construction. (Laws of 1903, chap. — 340 — 147, as amd.) The claim was filed by the Cohoes Company. That company, on January 1, 1918, transferred the claim with all its rights, franchises and privileges in that river to the Cohoes Power and Light Corporation, the predecessor of the present claimant. Claimant has no other grant or concession from the State. Thus the rights granted to the Cohoes Company must be determined. This company was organized under chapter 90 of the Laws of 1826 as a private corporation to do a hydraulic and manufacturing business solely. It received no grant of lands under the waters of the river, but did receive the right to “ erect and maintain a dam across the Mohawk river, opposite the lands belonging to said corporation, above the Great Cohoes Falls, for supplying water necessary for the purpose of said corporation; provided always, that nothing in this act contained shall be so construed as to * * * impair or injure the rights and privileges of the people of this State.” It also had the right to construct canals to conduct water from the river to its plants, “ provided, That said corporation shall not at any time, by means of their said canals or otherwise, take or use any of the waters of said river which shall now or hereafter be required by the State for the purposes of navigation.” The last paragraph of the act provides: “ That the rights and privileges hereby granted shall be deemed to be taken subject to the right of the Legislature hereafter to alter, modify or repeal the same.” Chapter 44 of the Laws of 1834, entitled “ An act for the relief of the Cohoes Company,” contains this: “ Whenever, in the opinion of the Canal Commissioners or of the Legislature, it may be necessary to take from the company’s pond or works any of the waters of the Mohawk river, the same may be taken for the use of the Erie and Champlain canal, or either of them, at such points and in such manner as the said Commissioners or the Legislature shall deem proper.” By chapter 486 of the Laws of 1884 the Cohoes Company received a further concession from the State which authorized it (section 1) “ for the purpose of securing a better supply of water for its hydraulic and manufacturing operations, or for either, to erect a dam across the Mohawk river above the present aqueduct of the Erie canal at Crescent, Saratoga county, and to maintain the same and the pond or reservoir of water thereby made.” (Section 2.) “ The said company in erecting and maintaining said dam and its abutments and appurtenances may use the bed of said river, and any lands of the people of the State of New York now not used or required for said canal, which were formerly occupied as a part of the Erie canal by the former aqueduct of — 341 — the Erie canal at Crescent, now destroyed and its approaches now disused, and any lands adjacent thereto, not now so used or required. The said dam shall be located where its abutments can be placed upon lands now owned, or which, or the right to abut thereon, shall hereafter be acquired by said company, or upon said lands of the people of the State of New York, or partly upon each.” There was no further reservation, except that the location, channels and construction plans must first be approved by certain State officers. These are the acts or grants on which the rights of claimant depend. The rights granted by the 1884 act have never been exercised. But the Cohoes Company, under the 1826 act, erected a dam about 4,000 feet above the Cohoes Falls with a crest elevation (after some changes) of 154.2 feet and has since used the waters of the river for its hydraulic purposes. This dam, recently, has been raised to a crest elevation of 157 feet, which fact is later discussed. In the original claim damages were asked for loss sustained by diminishing its pondage rights at its Cohoes dam. That claim was withdrawn; at the same time amended requests to find were filed by the claimant, containing a written statement, to which, for certainty, we refer as follows: The claim is limited “to one for compensation for the taking and appropriation of its lands at and above the aqueduct of the Erie canal at Crescent and its right and franchise to construct and maintain a dam across the Mohawk river above the aqueduct under chapter 486 of the Laws of 1884. These amended requests ask for no compensation for the appropriation of any other property, or for the interference by the State with claimant’s use and enjoyment of any rights under chapter 90 of the Laws of 1826. * * * The questions presented by the amended requests to find relate entirely to the value of pondage created by a dam at the aqueduct site utilized under the 92-foot head available at' the Cohoes Falls and in connection with claimant’s existing development there.” In calculating this value the 157 feet crest elevation of the Cohoes dam is used, on the theory that the right of the claimant to erect and maintain a dam at 157 feet crest elevation is superior to the rights of the State “ except only the State’s right to construct and maintain the barge canal as constructed and now maintained. Or to put it another way, the rights of the Cohoes Company and of claimant under the act of 1826, were and are subject to the right and power of the State to do what it has done in the building of the barge canal; but claimant may maintain under the act of 1826, and under its. rights — 342 — as a riparian owner, its present dam with a crest elevation of 157 feet, since that dam at such crest elevation does not impair or interfere with the full enjoyment by the State of the navigation project which it has created. * * * The particular right so claimed is the right to maintain its dam at the crest elevation of 157 feet, which has no further or other effect upon the barge canal structure than to raise the water on the lower side of the Crescent dam some 2.8 feet above what it would be if there had been no increase in the crest elevation of claimant’s dam. No claim has been made by the State that by so maintaining its dam claimant interferes in the slightest degree with the operation and maintenance of the barge canal.” The dam constructed by the State at Crescent submerged the claimant’s privilege to construct and maintain a dam under the act of 1884, and also submerged some of its riparian lands. Plaintiff’s claim is limited to damages for its lands appropriated and for destroying its privileges and pondage rights at its proposed Crescent dam. There is of course no dispute that it is entitled to recover damages for the lands appropriated for the Crescent dam construction. Our inquiry is thus limited to the rights granted in the act of 1884. Claimant has taken the position that, the Mohawk being a public stream, its rights therein, under the grant of 1826, are “ subject to the right and power of the State to do what it has done in the building of the Barge Canal.” This is justified by the authorities and applies as well to the grant of 1884. The Mohawk river is a public, navigable stream; the title to its bed is in the State unless specifically granted. (People v. Canal Appraisers, 33 N. Y. 461; Williams v. City of Utica, 217 id. 162; Danes v. State of New York, 219 id. 67.) “ To be navigable, it is not necessary that it should be deep enough to admit the passage of boats at all portions of the stream.” (Danes v. State of New York, supra, 71, citing St. Anthony Falls W. P. Co. v. St. Paul Water Comrs., 168 U. S. 349; Morgan v. King, 35 N. Y. 454.) Rifts and shallows do not affect its general character as a navigable stream; the authority of the State extends over these. (West Virginia P. & P. Co. v. Peck, 189 App. Div. 286, 292; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251.) The rights and title in the beds and waters of a navigable stream are controlled by the laws of the State in which the stream is. (St. Anthony Falls W. P. Co. v. St. Paul Water Comrs., 168 U. S. 349; United States v. Chandler-Dunbar Co., 229 id. 53.) In this State control of the beds and waters of navigable streams rests, as an attribute of sovereignty, in the State in trust for the people and cannot be unconditionally — 343 — conveyed. (Smith v. City of Rochester, 92 N. Y. 463, 479; Matter of Long Sault Development Co., 212 id. 1.) There is an exception to this general rule; the State may unconditionally convey a valid title in the bed and waters of a navigable stream when the conveyance is made for a valuable consideration, in aid of the development of public waters for navigation and commerce or in the interests of the public (Langdon v. Mayor, etc., of City of N. Y., 93 N. Y. 129; Coxe v. State of New York, 144 id. 396; First Construction Co. v. State of New York, 221 id. 295), but only when it does not unduly interfere with the development of the stream for navigation and commerce. Beyond this the control of navigable waters, for the purposes of the trust under which the sovereign holds it, can never be validly conveyed or lost. (Illinois Central Railroad v. Illinois, 146 U. S. 387, 453; Coxe v. State of New York, 144 N. Y. 396; Matter of Long Sault Development Co., 212 id. 1; Appleby v. City of New York, 235 id. 351.) In Appleby v. City of New York (271 U. S. 364, 395; 235 N. Y. 351) Chief Justice Taft said that the Illinois case (supra) was necessarily a statement of Illinois law, but the general principle and the exception have been recognized the country over and have been approved in several cases in the State of New York, and then quotes from Coxe v. State of New York (supra), as follows: “ The title which the State holds and the power of disposition is an incident and part of its sovereignty that can not be surrendered, alienated or delegated, except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit.” Grants of gift, not made to improve navigation or in the interests of the public, are conditional grants and are made subject to the paramount right of the State to improve the stream. The State holds the title to lands under the waters as proprietor and may convey, without consideration, such lands or the right to use them. In such grants, however, there is an implied reservation of the public right; they will be construed against the grantee and, when they contain no words excluding governmental control of the waters, they are subject to the jus publicum. When the State assumes control of a stream and in executing its plan of development uses rights granted conditionally, it does not take property within the meaning of the Constitution, article 1, section 6, which requires compensation. In exercising its Sovereign right of control it is not subject to such burden. (Lewis Blue Point Oyster C. Co. v. Briggs, 198 N. Y. 287; Sage v. Mayor, 154 id. 61; Lansing v. Smith, 4 Wend. 9; Shively v. Bowlby, 152 U. S. 1, 32; Union Bridge Co. v. United States, 204 id. 364, 389; People v. N. Y. & S. I. Ferry Co., 68 N. Y. 71, 79, 80.) — 344 — We need not here consider the rights of the Federal government in this public stream; it has asserted no right therein above the Cohoes Falls and, until it does, the State’s power and rights are plenary. (Appleby v. City of' New York, 235 N. Y. 351, 361.) The determination to canalize the Mohawk river was a lawful exercise of the legislative power to promote navigation and commerce. In adopting its plan of development the State acted as sovereign. Its plan was reasonable and not sabject to question in the courts. (United States v. Chandler-Dunbar Co., 229 U. S. 53; Shively v. Bowlby, 152 id. 1, 32.) It is not needful to consider what would be claimant’s rights if it had constructed its dam before the State acted; its right must yield to the State’s discretion. When the State constructed its dam it terminated claimant’s privilege. (People v. N. Y. & S. I. Ferry Co., supra, 80.) The primary use of public streams is for purpose of navigation; the erection of piers or dams in them to improve navigation is entirely consistent with such use and infringes upon no right of the riparian owner. (Union Bridge Co. v. United States, 204 U. S. 364.) There are no dams in the Mohawk which will interfere with the full use of the stream for canal navigation. The State’s plan required the use of the complete site of claimant’s proposed dam; without using it the State could not carry out its plan. The privilege to claimant of building and maintaining a dam did materially interfere with the State’s plan. Without the construction of the dam by the State it could not exercise its sovereign right of control. An expectation that the claimant might at some future time construct a dam which might supply the State’s need does not militate against its rights to build its dam. The State need not suspend its service to the people until claimant sees fit to exercise its privilege. Chapter 486 of the Laws of 1884 does not purport to convey title to any part of the bed of the stream. It was a grant of gift, a donation, undoubtedly made at the request of the Cohoes Company. It was made solely for the beneficial use of that company and not for any public purpose or benefit. It contains no words excluding government control of the waters or the lands thereunder. There was no stipulation in the grant that the grantee should do anything in consummation of the purposes of the grant. The Cohoes Company received thereby simply a license or privilege to build and maintain a dam. Nine years passed, after this act, before the Barge Canal was contemplated and nothing was done towards developing the privilege granted, nor has anything to that end been done since. The small stone construction on the border of the stream, which is said to have cost $800, could not have been — 345 — a part of the proposed dam or any part of a construction in connection therewith. No dam was to be located where this stone construction was made; if it were, the small outlay would justify little consideration. We think, therefore, that, in carrying out its plan and thus depriving claimant of its privilege, the State did not subject itself to a claim for compensation. We find nothing in the First Construction Case (221 N. Y. 295) in conflict with this view. In that case the grants were in the public interest and provided for development of the water front in aid of commerce and navigation. They were grants of that to which the State, for a valuable consideration, could convey absolute title, not subject to the paramount rights of the State. The subject of the grants did not materially interfere with the full development of the harbor by the State or Federal government; and the court found consideration for the grants. It said (pp. 317, 318) they were' “ ‘ not nude pacts, but rest upon obligations expressly or impliedly assumed to carry on the undertaking to which they relate. * * * They are made and received with the understanding that the recipient is protected by a contractual right from the moment the grant is accepted and during the course of performance as contemplated, as well as after that performance.’ ” The instant case is very different. The grantee assumed no obligation to erect a dam or to do anything in the exercise of its privilege, and the State could not develop the stream according to its plan without terminating claimant’s privilege. We think also that the facts distinguish this case from Waterford El. L., H. & P. Co. v. State of New York (208 App. Div. 273; affd., without opinion, 239 N. Y. 629). If we are right in our conclusion above stated, it is immaterial whether or not the right of the State to use the waters of the Mohawk river for navigation purposes is reserved in the grant of 1884; at the same time we think the Court of Claims was right in holding that there is such reservation. The necessary reservation is specifically stated in the acts of 1826 and 1834. If, in the act of 1884, there is no such provision, we think that such reservation is implied. (Lansing v. Smith, 4 Wend. 9, 24; People v. N. Y. & S. I. Ferry Co., 68 N. Y. 71, 76, 79; Lewis Blue Point Oyster C. Co. v. Briggs, supra, 292; Sage v. Mayor, 154 N. Y. 61, cited in Scranton v. Wheeler, 179 U. S. 161.) Otherwise the act would abdicate the State’s sovereign right in this public stream. Also the act of 3884 (supra) is not an independent grant; it was made simply in aid of the privileges granted in the act of 1826 (supra), namely, — 346 — to secure “ a better supply of water for its hydraulic and manufacturing operations.” The acts should be construed together. Further, it does not appear that the claimant will be deprived of its rights as sought to be established under this claim for damages. Had the claimant exercised its privileges and constructed its dam at Crescent it might not have been necessary for the State to construct its dam. Without question the State then could have drawn water for its canal from the pond created by a Crescent dam built by claimant. For a hundred years it has been the policy of this State to supply water to the Erie and Champlain canals from the Mohawk and Hudson. The amount of water so drawn is comparatively trivial. Whether the dam be built by the State or claimant substantially the whole stream must pass over or by the Crescent dam; it would, not be used by the State for navigation purposes. It does not appear that the State intends to interfere with such flow of the stream. If it should attempt to use the waters it would naturally be by leasing the power. If it did leasé the power its act would be that of a proprietor, not of a sovereign, and the waters used at the dam would have to be returned into the stream below the dam; that is, into the pond formed by the Cohoes dam. So that the claimant would have the use of the waters of the river except the comparatively small amount diverted through the canal. Claimant is a riparian owner and has the right to use on its property the waters of this public stream. ( United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38; Fulton County G. & El. Co. v. Rockwood Mfg. Co., Inc., 205 App. Div. 787; modfd., 238 N. Y. 109.) None of its riparian lands below the Crescent dam have been appropriated. It is true that had claimant built a dam it, to a reasonable extent, could have controlled the pondage and discharge of water at the dam (Clinton v. Myers, 46 N. Y. 511); but this control would have to yield to the State’s right to use the stream and its waters for canal purposes as it must yield now. The pond must be kept of sufficient depth to carry the canal traffic in the river and canal. At the same time the claimant has been saved the expense of building and maintaining a dam. There is a failure of proof showing what, if any, damages the claimant has suffered under these conditions. Should the State attempt hereafter to use the waters of the river from the Crescent dam pond, otherwise than for navigation purposes, and that use should interfere with claimant’s rights, it could then have its day in court to protect its rights. In this connection we refer to the refusal of the Court of Claims to find that claimant was entitled to maintain its Cohoes dam at the crest elevation of 157 feet. The effect of maintaining the dam at — 347 — this level, rather than at 154.2 feet, would result in diminishing the head at the Crescent dam by 2.8 feet. If the State later asserts a right to have the Cohoes dam maintained at the lower elevation, claimant may then defend. In our view this issue was not before the Court of Claims; all findings and refusals to find in respect thereto should be stricken from the record without any expression by this court as to the proper crest elevation of the Cohoes dam. We should not attempt to foretell what the State may sometime do in respect to the power at the Crescent dam. We have not overlooked the fact that claimant is the assignee of rights granted originally by other legislative acts and to other grantees which have been transferred to the Cohoes Company. But these have not increased or altered the right of claimant as hereinabove stated. Judgment for the value of the lands appropriated has been awarded. This is a question for the Court of Claims. Its finding is justified by the evidence. Claimant’s power development is located wholly on the south side of the river. At the time of the appropriation claimant owned no lands on the south bank at the site of the proposed Crescent dam and pond. Claimant purposed to use the waters from the Crescent pond solely in aid of its developments at the Cohoes dam; it has not intended to generate power at the Crescent dam and has not shown damages because excluded therefrom. The judgment should be affirmed, with costs. Hinmajst and Whitmter, JJ., concur; Hill, J., dissents on the authority of Waterford El. L., H. & P. Co. v. State of New York (208 App. Div. 273); Hasbrouck, J., dissents, with an opinion.