Opinion
Argued November 22, 1901
Decided December 20, 1901
David B. Hill, Charles A. Hawley and George Barrow for Richard M. Stacey et al., appellants.
David B. Hill and Edwin Nottingham for Skaneateles Paper Company et al., appellants.
Thomas Hogan, E.N. Wilson and Melven Z. Haven for respondent.
These proceedings were instituted by the city of Syracuse for the purpose of condemning and acquiring the rights of the defendants in the waters of Skaneateles lake and outlet. The history of the proceedings is fully set forth in the opinion of the Appellate Division ( 45 App. Div. 249), and need not be here repeated. At the time these proceedings were instituted Syracuse was a city of about one hundred thousand inhabitants situated about seventeen miles north-easterly of Skaneateles lake. This lake is a body of fresh water about fifteen miles in length, having a general width of about one mile and a surface area of about thirteen and one-quarter square miles. The tributary watershed covers about sixty square miles, exclusive of the lake, the level of which is much higher than the city of Syracuse. The outlet of the lake flows in a northerly direction and discharges into the Seneca river.
These proceedings were instituted pursuant to the provisions of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890. The judgment entered herein on the 28th day of September, 1895, under which the commissioners were appointed particularly specifies the duties of the commissioners as follows: To "condemn and acquire from the defendants and every of them the following rights and property, to wit: 1. The right and authority to increase the storage capacity of Skaneateles Lake sufficiently to store therein all the ordinary flow of its watershed in accordance with the provisions of section 18 of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, with the right to store such flow within the lake and withhold the same from the outlet thereof and all the rights of the defendants and every of them to the discharge of the waters of Skaneateles Lake into the outlet thereof and to the flow of such waters through such outlet along, over and contiguous to the respective parcels of land referred to at paragraph four of the amended petition and described in the schedules thereof. 2. All water power rights of the defendants and every of them upon the outlet of Skaneateles Lake arising out of their respective ownership of, lien upon or other interest in the several parcels of land referred to at paragraph four of the amended petition and described in the schedules thereof. 3. The right to divert and withdraw from said lake and the waters to be stored therein such and so much water as from time to time the uses of said city and its inhabitants may require and as may be lawfully taken therefor." The commissioners, in their report, ascertained and determined the compensation which ought justly to be made by the plaintiff to the owners of the property and rights appraised, giving the amount awarded to each party.
It is contended on behalf of the appellants that an improper basis was adopted by the commissioners in determining the amount that should be awarded to them; that the award made was upon the basis of the difference in value of the affected properties with and without the rights condemned as specified in the judgment; that this basis did not give them full compensation for all of the rights and property taken by the proceedings; that the defendants, together with the other riparian proprietors on the outlet of the lake collectively or as tenants in common, were the owners in perpetuity of a complete reservoir capable of storing therein all the yield of the watershed of the lake, which constituted property of great value to them and to the public, which value was marketable and capable of ascertainment; that such property was not only capable of being acquired in condemnation proceedings, but herein was acquired from such proprietors and the title thereto is now, by the confirmation of these proceedings, vested in the city of Syracuse.
In order to determine the question raised by the appellants it becomes important to ascertain more fully the precise nature and character of their properties. As we have stated, they were the owners of lands upon or through which the outlet of the lake ran, having mills thereon propelled by the power derived from the water, or were lienors or otherwise interested in such lands. It further appears that in 1815 and 1816 one Thomas Gibbs obtained grants from the riparian proprietors of the lake giving him the right "to raise and keep up the water in the said lake by a mill dam across the outlet thereof to about the height of six feet to the top of a certain rock with a circle marked thereon at the west end of the bridge across the said outlet, being for the use of mill purposes." After the procuring of these grants Gibbs in 1817 constructed a dam across the outlet at its intersection with the lake in accordance with the terms of the grants, and the same was thereafter maintained for mill purposes. Thereafter Gibbs or his grantees erected mills and manufacturing establishments immediately below the dam which were operated by the water furnished from the dam. In 1843 the canal board of the state, by a resolution, appropriated the waters of Skaneateles lake and its outlet for a reservoir and feeder to the Erie canal, and thereupon took possession of the lands and mills belonging to Gibbs or his grantees, including the dam which had been erected across the outlet, and subsequently the state paid to the owners the amount awarded to them, amounting to about the sum of thirty thousand dollars. Thereafter the state maintained the dam, rebuilding it in 1868. The defendants are lower riparian owners upon the outlet.
We shall assume, for the purposes of this case but without so deciding, that the defendants or their grantors, who acquiesced in the building of the dam by Gibbs in 1817 and who have sanctioned its maintenance ever since and have built up mills and factories upon the outlet with reference to existing conditions, understanding that the dam was to remain and be maintained permanently, have an interest in and a right to have all of the waters tributary to the lake stored therein and so discharged as to give them a uniform supply of water for their mills during all the seasons of the year.
We do not understand that the defendants have any greater interest in the dam or the waters of the lake. Neither they nor their grantors were parties to the grants. They never owned any portion of the dam, and they are not riparian owners upon the lake. Their ownership is confined to the outlet. The terms of the grants we have already quoted. It is to keep up the water in the lake by a dam across the outlet to the height of six feet " for the use of mill purposes." Here we have an express announcement of the purpose for which the grants were made. There is no conveyance of any title to the water, or right to divert it or sell it. There is simply the right to construct a dam, raise the water six feet high and use it for mill purposes, nothing more.
Water, when reduced to possession, is property, and it may be bought and sold and have a market value, but it must be in actual possession, subject to control and management. Running water in natural streams is not property and never was. The construction of a dam across an outlet of a lake or a river or a creek for the purpose of securing power with which to operate mills or factories is not a reducing of the water to possession or to control or management, in such a sense as to change its legal character and make it property. If it did, the owner at times might find it difficult to control, especially in case of freshets or floods. He might have trouble in preventing it from being precipitated upon the lands of his neighbors below and find it unpleasant to respond to them for the damages caused by his property.
The defendants gave evidence by experts tending to show that the waters of this lake were worth nine millions of dollars. Possibly this might be so if it could be marketed and the amount collected therefor that is charged consumers by some of our municipal governments; but upon this basis of computing values the waters of one of our great northern lakes would become worth nearly as much, if not more, than the assessed value of all of the other property of the United States combined. It will thus be readily seen that the value of water depends largely upon surrounding circumstances.
What, then, was the interest of the defendants in the waters of the lake? It was, as we have seen, to have the dam maintained at the outlet to the height named; to collect and store the water in seasons in which it is flowing in abundance and distributed in uniform quantities through the outlet during the dry seasons for mill purposes. As riparian owners upon the outlet they had the right to use the water flowing through their premises for mechanical purposes. If the flow was made uniform during the year it made their premises more valuable for such purposes. Their interest was a natural incident to the land. It was a usufructory right, and, as such, it could not be severed from the land. It may be destroyed, but if it is preserved, it must be in connection with the land through or over which the water flows. If one of the defendants should sell his lands, he would no longer be interested in having the dam maintained or in having a uniform supply of water running through the outlet. If he retains his lands, and the waters of the lake are diverted from the outlet, then his usufructory right is destroyed and his lands are damaged in the amount of the value of that interest.
It appears to us that the difference in the value of the premises affected with and without the water rights affords a full compensation to the owners, and that the basis adopted by the commissioners for the determination of the damages sustained was correct.
The order appealed from should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, MARTIN, LANDON and CULLEN, JJ., concur; VANN, J., not sitting.
Order affirmed.