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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 592 I think that the Board of Claims has erred in its award in this case. The facts set forth in the above statement seem to me to show beyond controversy that the state never intended to, and, in fact, never has appropriated and taken possession as owner of all the waters of Skaneateles lake, as against all the riparian owners, below the dam down to Seneca river. The state, prior to 1843, had been frequently guilty of acts of trespass as against the owners of the dam and the lands immediately surrounding it and the mills immediately *Page 595 below it. The state's agents had, upon occasion, gone upon the lands of these private individuals and without right opened the gates of the dam and taken the waters from the lake in larger quantities than the proper use thereof by the owners themselves would have required for the running of their mills and their machinery dependent upon that water power, and by taking this excess of water they reduced the head and thus impaired the power and prevented the owners from exercising the rights which they had at the dam and in the use of the waters above it. Although the state was thus a wrongdoer, and though by reason of the wrong it had injured the owners of the water rights immediately below the dam, yet it had thereby done no injury whatever to the lower riparian owners. The water flowed through its natural channel across the lands of these owners, and the natural fall between the dam and themselves was sufficient, and hence they had all the use of the water power which they required. It was not in the letting of the water down that any injury could come to the owners below. The retention of the water, if carried far enough to prevent the use of the machinery by the lower mill owners, would alone cause them injury. But nothing of that kind had happened up to 1843, and it is evident that the final action of the state was without reference to them. The first report made by the engineer to the canal commissioners, in 1842, January 6th, gave a plan by which more water could be obtained from the lake without injury to the mill owners immediately below the dam. The method by which that work was to be done is not important to now notice, but it is material to note that the plan provided for no damage being done to any owner of hydraulic rights on this stream. To speak of the method by which this end was to be accomplished is not necessary. That report and plan were never carried out; no work was ever done under it, and the plan was abandoned. Another report was made by the engineer containing a plan which was to be more expensive in carrying out than the plan contained in the first report, because while the owners of hydraulic power further down on the stream below were not to *Page 596 be injured, yet the owners of such rights immediately below the dam would be damaged, and the value of their rights greatly diminished. This second plan provided, therefore, that these owners were to be compensated for the loss of their rights, and for the lands which they owned, and for the dam itself, all of which were to be appropriated and taken possession of and owned by the state, and payment was to be made therefor to such owners. As the canal had been completed for quite a number of years at this time, neither the canal commissioners nor the canal board had the right to take any property or appropriate any lands which they might have had under provisions looking to the construction of the canal; and the powers of the canal commissioners and of the canal board have their origin, so far as their right to take these lands and these waters are concerned, in sections 17 and 18 of the 1st Revised Statutes (p. 221), and section 74 (id. p. 230).
I have found in the record here no actual decision of the canal commissioners, pursuant to section 17 of the above statute, that, in their opinion, it was necessary or expedient to open a new feeder for the canal at this point, nor is there anything showing that they had caused to be made the necessary surveys and levels, and accurate drafts, plans and models or maps of the contemplated work necessary in opening such new feeder, or showing that any estimate in minute detail of the probable expense to be incurred, had been made, except such proof as may be inferred from the recitals which precede the the resolution adopted by the canal board in June, 1843. We may assume, however, that the canal commissioners had done all that was requisite in order to comply with section 17 above cited, and that the canal board had the necessary plan, map, levels, etc., before it at the time when it passed that resolution. There is no pretense that any other plan or map was adopted by the canal commissioners, or was before the canal board, than the plan which is spoken of in the second report of the engineer to the canal commissioners, and that report provides for the execution of the work and the taking of the land necessary therefor upon *Page 597 the plan of dispensing with lowering the bed of the outlet below the dam at the village and also for the payment of damages for the water rights to be appropriated belonging to the individuals whose mills are situated immediately below the dam which was to be taken. This plan worked no injury to the owners lower down. The map which accompanied this report showed the land which was to be taken and the dam and the situation of the mills, the owners of which were to be compensated for the property of which they were to be deprived and for their water rights. With this plan and this map before the board and with this recital which precedes the resolution adopted by it, it is plain that when the canal board made use of the words of appropriation regarding the waters of the lake and the outlet, it had reference to the subject-matter which was then before that board as contained in that report, plan and map. The general use, therefore, of the words of appropriation, where the resolution speaks of appropriating all the waters of the lake and of the outlet, must be held under such circumstances to refer to the appropriation of all such waters as against those owners whose lands and property and water rights were by the plan to be taken and appropriated and who were specially designated and known and described in the report, the plan and the map before the board when the resolution was adopted. If there were any doubt in regard to the meaning of such language it seems to me that the acts of the officers of the state at the time and immediately subsequent to the passing of that resolution, even down to the year 1892, have been consistent with no other idea than that this appropriation was directed at and meant to apply to the owners of the rights and lands described in the report, the plan and the map. In this way it could very properly be said that as against them the waters of the lake and of the outlet were taken possession of and appropriated by the state, because the state immediately took the lands and extinguished the rights of those owners by virtue of such appropriation. But they never have asserted any right absolutely and subject to no claim or liability for damage, *Page 598 to appropriate the waters of this lake and its outlet as against the lower riparian owners and the state has not assumed the right to wholly withhold the supply of water, without any corresponding obligation to pay to the owners the amount of the damage which such owners might sustain by reason of such withholding. The finding of the Board of Claims and the evidence to support it are both clear upon this question, and although the state has exercised its right to use the water in this lake for the purpose of a feeder to the canal, yet that right has never been inconsistent with the rights of the riparian owners below, excepting in the case of the storage of the water and the withholding of the supply, and in those cases where the withholding of the supply was to such an amount as to prevent the operation of the machinery of the mills by their owners on the stream below, the state has recognized that such withholding was unlawful, and it has passed statutes providing for the hearing of the claims of such owners, and upon proof of facts which would, as against individuals, constitute a legal claim, it has made provision for the ascertainment of the amount and the payment thereof by its agents. This was done in 1868, after the state had withheld the waters for purposes of its own for a length of time sufficient to cause an appreciable damage to the owners below, and thousands of dollars were paid to such owners by the state on account of such damage, which, if the theory of the counsel for the state as now presented were correct, the state was never under the slightest obligation, legal or moral, to pay because of the fact that it had taken possession of and appropriated to its own use those rights many years ago.
We do not think that by the action of the canal board or the canal commissioners, or their combined action, these rights of the owners upon the stream below were included in the words of appropriation in the resolution of the canal board. Therefore, neither they nor their predecessors had any ground upon which to base an appearance before the canal appraisers and attempt to prove any permanent damage to their rights by *Page 599 virtue of the resolution of appropriation. The appropriation did not touch them or their rights. Mere words of appropriation, unaccompanied by any act on the part of the officers of the state towards carrying such appropriation into execution and taking possession of or controlling in some form the property which is to be appropriated, cannot amount to an actual and complete appropriation, and when we have, as we have in this case, ample scope for the application of these words of appropriation to those owners only who were included in the engineer's report and plan and map, and in respect to whom actual possession was taken, they will not be extended so as to include those who beyond all question were not within the contemplation of the board which, with the plan and map before it, passed the resolution.
This policy on the part of the state not to then take the rights of the riparian owners farther down the stream was not unwise at the time. For more than twenty years after the appropriation as stated, there was no trouble with these owners, and the state had all the water it required. And for more than twenty years in addition the occasions have been few for withholding the water to the damage of the owners. It would probably have been quite expensive to extinguish those rights at that time, and the necessity for doing so was not present. The state continued on, therefore, and when the necessity arose for temporarily withholding water it was done, its liability for the damage it thus caused was acknowledged, and it was paid under legislative sanction. It is conceded that the state has never in fact paid for the permanent appropriation of these rights, and we find no hardship in making it liable for causing them temporary damage since the last payment on that account.
There is nothing in the case of Sweet v. City of Syracuse (129 N.Y. 316) which is inconsistent with the views herein expressed. The question as to what rights existed in the lower owners of the waters below the dam on this stream was not in controversy. The plaintiff in that case assumed that the state was the owner of the waters of the lake and of the outlet, *Page 600 and that by virtue of proceedings heretofore taken the state had made Skaneateles lake substantially a part of the canal system of the state, and that it had no constitutional power, therefore, to permit any portion of the waters of that lake to be used for any other than canal purposes. There were some other constitutional objections discussed in that case which are not material here. This court simply said that at most the state had taken the waters of the lake to an extent that was necessary for canal purposes, and that any surplus beyond that might be, by legislative act, permitted to be used for other purposes without in any degree infringing upon the constitutional provision that the canals of the state shall not be sold or in any manner disposed of. What was stated in regard to the rights of the state in the lake was simply with reference to this question, and without having the subject of the rights of the lower proprietors on the stream as between them and the state in mind, and without deciding or attempting to decide, or even referring to the question whether such rights did or did not exist. The act itself, however, which enabled the city of Syracuse to take the water upon conditions specified, recognizes that there might be important rights on the part of these lower owners on the stream, and indeed the act seems to assume that there were, and it provides that the city shall not go on with the construction of the work unless, under certain circumstances, those rights are extinguished, as provided for in the act.
I recognize the importance of the principles which might be deduced from the decision of this case in some of its possible aspects. We do not, however, intend to decide what generally it may be necessary and requisite for the state to do in order to obtain the right to the use of all the water in this or any other lake or stream, and as against the world for the purpose of carrying on its canal system. We limit our decision to the peculiar facts in this case, and we hold that the words contained in the resolution of the canal board appropriating the waters of Skaneateles lake and the outlet of the same to the use of the public as a reservoir and feeder to the *Page 601 Erie canal are to be limited, by reason of the facts above detailed, to the property and rights spoken of in the report, plans and map of the engineer, which were before the canal board at the time of its adoption of the resolution, and which, when read in connection with the resolution, limit those words in the manner already indicated.
For these reasons we think the claimants made out a good cause of action against the state for damages sustained by them by the withholding of the waters from the Skaneateles creek in 1892, as described in their claims, and as all the facts have been brought out, and there is substantially no dispute in regard to them, and as they lead, as matter of law, to the conclusion that a cause of action was made out, it is proper to order judgment here for the amount of the damage that it was conceded the plaintiffs were entitled to, if they were entitled to any. The award of the Board of Claims should, therefore, be reversed and an award entered for $1,000 in favor of the claimant John E. Waller, and an award of $2,500 entered in favor of the claimant the Skaneateles Paper Company, with costs.
All concur, except ANDREWS, Ch. J., not voting, and O'BRIEN, J., dissenting.
Award reversed and ordered accordingly.