Chapter 723, Laws of 1905, provided for the organization of a state water commission and defined its powers and duties. By the terms of the statute no municipal corporation or board, commission, etc., representing such municipality should after the passage of the act have power to acquire, take or condemn lands for any new or additional sources of water supply until it had first submitted the maps and profiles therefor to said commission and obtained the approval of the commission to the same after a public hearing thereon. The maps to be exhibited were required to show the land to be acquired. The profiles were to show the sites and areas of proposed reservoirs and other works, aqueduct lines, etc., and be accompanied by a plan or scheme to determine and provide for the payment of proper compensation for any and all damages to persons or property whether direct or indirect which will result from the acquiring of said lands and the execution of said plans.
Immediately following the enactment of chapter 723, the legislature enacted chapter 724 of the Laws of 1905, *Page 493 which authorized the city of New York through the board of water supply created by the statute in connection with the other boards and officers mentioned therein to acquire uplands, lands under water, the waters of any lake, pond or stream, all water rights or privileges, and any and all easements and hereditaments and every estate, interest and right, legal and equitable, in land or water, including terms for years and liens thereon by way of judgment, mortgages or otherwise, for the construction of reservoirs, dams, aqueducts and other appurtenances for the purpose of an additional supply of pure and wholesome water for the city of New York. Power was conferred upon the city to exercise the right of eminent domain, provision made for the appointment of commissioners of appraisal to ascertain and appraise the compensation to be made to the owners or persons interested in the real estate, etc., to be taken; and upon the filing of the oaths of commissioners the parcels of real estate, etc., on the maps to be taken and occupied by the city were to become vested in fee in the city.
The comptroller of the city was authorized and directed to raise from time to time by the issuance of corporate stock such sums of money as should be sufficient to pay for any real estate acquired or the extinguishment of any right, title or interest therein and all damages appraised to persons interested therein.
In a review of the legislation relating to the subject under discussion (Matter of Board of Water Supply, 211 N.Y. 174, 180,181) we pointed out that the board of water supply provided for under the statute (Laws of 1905, chapter 724) after the necessary preliminary steps had been taken by it, made application to the state water supply commission for its approval under the statute creating the latter named commission (Laws of 1905, chapter 723) and while such application was pending certain sections of chapter 724, Laws of 1905, were amended by chapter 314, Laws of 1906, amongst which *Page 494 was section 42, important to be considered in this case, which section as amended reads:
"Section 42. The owner of any real estate not taken by virtue of this act and chapter seven hundred and twenty-three of the laws of nineteen hundred and five or of any established business on the first day of June, nineteen hundred and five, and situate in the counties of Ulster, Albany or Greene, directly or indirectly decreased in value by reason of the acquiring of land by the city of New York for an additional water supply or by reason of the execution of any plans for such additional water supply by the city of New York under the provisions of this act and chapter seven hundred and twenty-three of the laws of nineteen hundred and five, their heirs, assigns or personal representatives shall have a right to damages for such decrease in value. The board of water supply of the city of New York may agree with such persons as to the amount of such damages, and if such agreement cannot be made such damages, if any, shall be determined in the manner herein provided for the ascertaining and determining the value of real estate taken under the provisions of this act. * * *"
We also quoted from the decision of the state water supply commission dated May 14th, 1906, which made reference to the amendments of the statute in 1906 wherein the report stated: "The amendments were prepared after consideration of the evidence produced and arguments made by the attorneys representing the objectors upon the hearing. Also after a personal inspection of some of the territory proposed to be taken and the study of the laws of the state of Massachusetts and the method adopted by the Metropolitan water board of that state having similar questions and the commission believes that the law as now amended makes fair and equitable provisions for the determination and payment of any and all damages both direct and indirect which may result from the execution of said plans, and *Page 495 that it also protects New York from paying exorbitant and improper damages."
The plan of the board of water supply having been approved by the state water supply commission, the city proceeded to and did acquire title to lands and streams in the Catskill Mountains and erected a reservoir and dam known as the Ashokan Reservoir which is an artificial body of water fourteen square miles in area, created by the construction of a masonry dam across the Esopus creek and a series of dikes which impounds waters at places where otherwise they would escape into adjoining valleys. The reservoir is composed of two separate parts called east and west basins. The west basin is fed entirely by Esopus creek, the adjoining water stream. Gate houses are constructed in such a way that water can be discharged into and through the aqueduct from either or both reservoirs to the city of New York. The reservoirs will impound one hundred twenty-seven billion gallons of water. The capacity of the aqueduct to carry the water to the city of New York is five hundred million gallons per day.
Work was commenced by the city in the year 1906. At that time the total area of watershed above the lands of claimant involved in the proceeding was 284 square miles.
September 9th, 1913, the opening or gate in the masonry dam was permanently closed and as found by the commissioners since that date no water has been allowed to flow through said structure and down Esopus creek except as the engineers of the city in charge have let water out. The effect of closing the gate or opening in the dam was to reduce the drainage area of watershed between the dam and the lands of claimant to about twenty-eight square miles.
Since December 27th, 1915, water from the reservoir has been delivered to the inhabitants of the city of New York. *Page 496
On November 18th, 1913, the claimant filed with the board of water supply a claim which was dated October 21, 1913, wherein he alleged ownership of lands described in five several deeds to which reference was made for a more particular description of the premises and that he was also seized in fee of other lands adjoining the premises and used in connection therewith; the construction by the city of the dam and reservoir on Esopus creek for the purpose of impounding the water of said creek and diverting the same to the city of New York; that the city in September, 1913, wrongfully and unlawfully impounded the waters of the creek above the premises of claimant for the purpose of filling the reservoir and diverting the waters therefrom to the city or elsewhere and intends to permanently impound the flow of water and divert the same and by reason of such diversion and interference with the natural flow of Esopus creek through and along the premises of claimant he had and will sustain damage in the sum of fifteen thousand dollars which he demanded the city pay to him.
The board of water supply in February, 1915, represented by the corporation counsel of the city filed with the Supreme Court a duly verified petition from which it appears that former commissioners had been appointed for hearing of claims under section 42 of the statute. The first commission appointed in 1910 was continued until sometime in the year 1914. A second commission was appointed May 4th, 1912, and its term extended in 1913 and 1914. A third commission was appointed March 1st, 1913, the two last named commissions existing at the time of the filing of the petition mentioned in February, 1915. Due notice having been given of the filing of said petition on May 1st, 1915, an order was made appointing the commissioners who heard the present claim as a commission to ascertain and determine the damages if any that any one may be entitled to by reason of section 42, chapter 724 of the Laws of 1905, *Page 497 as amended by chapter 314, Laws of 1906 (hereinbefore quoted), provided an agreement cannot be had with the board of water supply.
On December 15th, 1915, the claimant presented an amended claim practically in the language of the original claim presented in November, 1913, save that lands described in seven separate conveyances referred to therein were included in addition to the lands described in the five several deeds mentioned in the original claim and that the damages demanded were increased in amount.
The commissioners reported that the claimant Van Etten is the owner of certain lands in the town of Marbletown, Ulster county, located some miles below the reservoir and dam, which lands consist of about 359 acres of lowland and about 450 acres of upland. The lowlands lie between Esopus creek and a highway known as the Mountain road and are comparatively level. The uplands lie to the north of the Mountain road and rise to a considerable height above the lowlands. The lowlands have a frontage upon the Esopus creek of about 7,500 feet and consist largely of agricultural lands, in the main under a high state of cultivation. At the time of the hearing of this claim the lowlands were used as a dairy farm.
The lands were acquired by the claimant by twelve separate conveyances, each conveyance save one being a full covenant deed. The real estate in six of the several conveyances was acquired by him subsequent to June 1, 1905, the date specified in section 42 of the statute of 1905 and the amendment thereto authorizing the enterprise by the city. One conveyance of land was made to claimant March 31, 1915, some eighteen months subsequent to the act of the city in closing the opening or gate in the dam.
The city of New York has acquired under the statute *Page 498 and by reason of the execution of its plans now practically completed, the right to impound and divert all the waters of Esopus creek at the point where the Ashokan dam was erected by means of which it has exercised possession and control of said waters, and by reason of which owners of land directly or indirectly decreased in value, if any, by reason of the impounding and diverting of all the waters of Esopus creek were entitled to damages therefor; claimant was entitled to be compensated for any decrease in the value of his land by reason of the impounding and diversion of all the waters of said creek at said dam and dikes and for all time, so that the determination and award of this commission shall be a continuing and complete bar against him, his heirs and assigns forever. The amount of the award made to claimant was $8,650, and included damages to all lands described in the twelve conveyances set out in the amended claim. The order of the Special Term in all respects ratified, approved and confirmed the report in so far as affects the claim of Mr. Van Etten, provided that the comptroller of the city of New York pay to claimant the amount of the award for the impounding and diversion of all the waters of Esopus creek and for all time to come which award will be a continuing bar against claimant, his heirs and assigns forever, with interest on the amount of the award from the time the right to impound and divert said waters was acquired by the city of New York, to wit, the date of the filing of the oath of the commissioners, September 10th, 1915. A further provision was "A brief description of said real estate affected by the impounding and diversion of the waters of Esopus Creek and Beaverskill by the city of New York, as aforesaid, is as follows:" then follows a reference to the twelve separate deeds referred to in the amended claim.
The project of the city of New York to provide a supply of pure and wholesome water for the inhabitants *Page 499 of that city was one of magnitude. In Matter of Board of WaterSupply (211 N.Y. 174-182) we made particular reference to the extent of the undertaking, and the facts found by the commissioners in the present case furnish additional information on the subject. A consummation of the enterprise involved an unusual expenditure of money by the city, consequently was of interest to the taxpayers of the city, likewise it involved the rights of owners of lands and water rights in the Catskill mountains and the valley adjacent. A review of the statutes enacted in the years 1905, 1906, indicates that the legislature had a keen appreciation of the project and intended to afford ample protection for the city and likewise to guard the varied interests which might in anywise be affected by the undertaking. Publicity and opportunity for every interest to be heard before the state water supply commission and the board of water supply predominated in each statute.
That the end to be attained under the statute of 1905 as amended in 1906 was a public purpose; that a certain definite and adequate method of ascertaining the amount of damages sustained by any person thereunder and due provision made for the payment of compensation is not controverted.
Conflict of opinion prevails between counsel for the respective parties as well as between members of the court as to the particular provision of the statute applicable to a hearing of the claim at bar. Upon the hearing before the commissioners, and upon the argument of the appeal, counsel for claimant asserted that the claim was one for condemnation of real estate. Counsel for the city insisted that the commissioners having been appointed under section 42 of the statute were without jurisdiction to hear the claim as an ordinary condemnation proceeding, but were limited to hearing and considering it as one to recover damages for land not taken, but depreciated in value by reason of the execution of the plan of the city. *Page 500
In Matter of Board of Water Supply (211 N.Y. 174, 183 we said: "The statute contemplates a proceeding to condemn the fee of the real property required by the cit (L. 1905, ch. 724, § 7), and a proceeding to determin the damages arising from a decrease in the value of a established business (L. 1905, ch. 724, § 42, and L. 1906 ch. 314) (the subject for determination in that case) These proceedings are separate and distinct although there seems to be no reason why a commission cannot be named with authority to hear claims presented under both statutes. If commissioners had been appointed to hear claimants of both classes it would have resulted in * * economy of time * * * but where one commission is appointed solely for the purpose of hearing claims for damages by reason of the city taking the fee of real property it is not legal error if a claimant refuses to submit his claim for damages arising from a decrease in the value of an established business to such commission * * *."
Applying the principle of that decision to the present case, the fact is apparent that if, as contended for by claimant, the proceeding was one for condemnation of real estate the city could not be compelled to try the claim before commissioners appointed to hear claims arising under section 42 of the statute. The claimant and the city were at liberty to consent to a hearing before commissioners appointed under either provision of the law and in that event would be bound by any determination made. The city maintaining its position that the claim was one to recover damages for land not taken, but depreciated in value by reason of the execution of the plan of the city, and claimant having proceeded to trial before a commission appointed solely to hear such claims, cannot now be heard to assert that the claim was one arising under the earlier sections of the statute regulating the acquiring of land in the usual condemnation proceeding
Under section 3 of chapter 723, Laws of 1905, the *Page 501 State Water Commission Act, the city was required to accompany its application to that body for approval with not only maps showing lands to be acquired and profiles showing the sites and areas of proposed reservoirs and other works, but also a plan or scheme to determine and provide for the payment of the proper compensation for any and all damages to persons or property whether direct or indirect which will result from the acquiring of said land appearing on the maps filed and the execution ofsaid plans. I have heretofore called attention to the fact that section 42 of the statute of 1905 was amended in 1906 before approval by the state water supply commission of the maps, plans, etc., of the city, and to the report of that commission in its approval of the plan of the city especially with reference to section 42, as amended, which was mentioned in the report as being a fair and equitable provision for the payment of any and all damages both direct and indirect which may result from the "execution of the plan of the city." All of which has important bearing upon the intention of the legislature in the amendment of section 42 of the statute.
The character and extent of the work constructed by the city prior to September 9, 1913, indicates that the city had long theretofore acquired title to the lands, water rights, etc., necessary for the reservoir dam, aqueduct, etc., which has been delineated on the maps and profiles filed and approved, and had proceeded with the construction work at that time to a point where it was possible to impound and divert the water of Esopus creek to the city of New York. The report of the commissioners does not disclose, neither is it claimed, that prior to that time the city had interfered with the natural and ordinary flow of water in the channel of the creek below the point where the dam was erected. The plan of the city down to September 9, 1913, though in process of execution had not been executed. True, the dam had been constructed as a part of the plan, but it did not *Page 502 interfere with the flow of water of Esopus creek and could not do so until the opening in the dam was closed, and the city enabled to impound the water in the reservoir. Upon the closing of the dam, the city asserted its right under legislative authority as a part of the plan to impound the waters of Esopus creek and convey the same to the city for a public purpose, or, if it so desired, to discharge from time to time water through the channel of the creek as it was wont to run therein. In the latter event, the owners below would be entitled to use the same as theretofore utilized, but they could not demand of or require the city to discharge water therein. The city would not, however, be entitled to discharge an excess of water down the creek causing damage to lands, buildings, crops, etc., or by its negligence permit such damage to be sustained. The physical closing of the opening of the dam and assertion of such right by the city was operative as an execution of its plan on September 9th, 1913 (People ex rel.Janes v. Dickey, 206 N.Y. 581; Matter of Grade Crossing,Buffalo, 209 N.Y. 139 Shepard v. Manhattan Ry. Co., 169 N.Y. 160), and riparian owners on Esopus creek below the dam were relegated for relief to the remedy prescribed by the statute authorizing the enterprise.
Prior to the execution of the plan and the assertion of the right of the city by the physical act of a completion thereof, riparian owners on Esopus creek below the dam though not the owners of the water of said creek which in the absence of the dam would naturally flow through the channel of the creek (Sweet v.City of Syracuse, 129 N.Y. 316, 335) were possessed of a right to have the water flow unobstructed in the natural channel as an incident of property in their lands. Such right while frequently termed an easement is distinguished from an easement in that it is a corporeal right. (Scriver v. Smith, 100 N.Y. 471; TracyDevelopment Company v. Becker, 212 N.Y. 488, 489.) *Page 503
By reason of the execution of the plan of the city, riparian owners of the creek below were divested of a corporeal right in their lands by reason of an appropriation of the same by the city. (Scriver v. Smith, 100 N.Y. 471, 478 and cases cited;Benedict v. State, 120 N.Y. 228.)
A casual reading of the Benedict case may lead one to conclude that the decision is inapplicable as an authority here. I construe the decision as directly controlling in this case, unless mere form is to be substituted for substance. In that case the state erected a permanent dam for the purpose of increasing the depth of water in the Black river. Land of Benedict was overflowed for which he claimed damages. In the course of the opinion it was said "the overflow upon the plaintiff's (claimant's) land was the taking of a permanent easement." The term easement as thus used has given rise to the question of application of that decision to the present case. That the expression was not used in the opinion as determining the interest the state acquired in the land of claimant clearly appears from the opinion which states "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." As was said by this court in Scriver v. Smith (supra) corporeal rights may be called easements but they differ from easements in that they do not have origin in grant or prescription presupposing a grant.
The execution of the plan of the city of necessity included the right to divert or control the flow of water in Esopus creek. It did not contemplate the acquisition of real estate along the creek many miles. The plan and the statute recognized that the lands of riparian owners not acquired by the city would be depreciated in value by reason of the execution of the plan of the city by reason of the superior right of the city to divert and *Page 504 control the water of Esopus creek; therefore, the statute, section 42, made provision for compensation in such case, to "be determined in the manner herein provided for the ascertaining and determining the value of real estate taken under the provisions of this act."
The position of the claimant in the case is consistent with the views expressed. In this claim dated October 21st, 1913, some six weeks after the closing of the dam, he sought damages to five parcels of land, as he alleged, for the unlawful act of the city in the construction of the dam and reservoir, the impounding of the water of the creek in September, 1913, and the intention of the city to permanently divert the water to the city of New York, thereby depriving him of his right to have the flow of water in the creek continue. The amended claim filed just previous to the hearing before the commissioners contains the same allegations and sought to recover damages, not to five parcels of land, but to twelve parcels, to one of which he acquired title in 1915.
The pleadings having alleged that the act of the city was wrongful and unlawful it is rather difficult to comprehend how the claim was one for real estate taken under the provisions of the statute preceding section 42. Upon the hearing of the claim for the purpose of establishing damages, and as bearing upon a depreciation in the value of his land, he offered evidence of the value of his land as a whole in September, 1913, before the dam was closed on September 9th, and the value of the same thereafter. The execution of the plan of the city of necessity included the right to impound and divert the water in whole or in part, as the demands of the inhabitants of the city of New York required. Thus the primary purpose of placing a gate in the dam. The acquisition of such right did not require a description of the channel of the creek or the flow line in times of freshets by metes and bounds; such lines were well defined. Any damage to the rights of riparian owners could as well be determined *Page 505 under section 42 of the statute as through a condemnation proceeding. The measure of damages was the same in both cases.
With certain modifications certain of the findings of the commissioners would cover my conclusions which are as follows:
The city of New York has duly acquired and appropriated under acts of the legislature of the state of New York, and by reason of the execution of its plans for an additional supply of water for the inhabitants of the city of New York as in the statute provided, the right to impound and divert all the waters of Esopus creek at or near Brown's station in the town of Olive, Ulster county, N.Y., at which point the city has erected a dam known as the Ashokan dam, by means of which it has since the 9th day of September, 1913, when the plan of the city was executed and by reason thereof and under the statute exercised a right of possession and control of said waters and appropriated the rights of lower riparian owners on the stream below, which corporeal rights were annexed to the land of the claimant and should be described in the report and order of confirmation.
That the claimant is entitled to compensation for the depreciation in the value of his land by reason of the execution of the plans by the city, which shall for all time be a continuing and complete bar against said owner, his, her or their heirs and assigns forever, with interest on the sum awarded from September 9th, 1913.
The appropriation by the city and its rights under the statute became complete upon the execution of the plan, and by the physical act of the city in closing the dam and assumption of its rights thereby on September 9th, 1913, and a claim thereunder arose on that day as to any land then owned by the claimant, but does not embrace lands thereafter acquired.
Claimant cannot be compelled to accept compensation for or be barred of a right to recover damages which *Page 506 may at some time in the future be caused by the act of the city in a discharge of an excessive quantity of water down the channel of Esopus creek, resulting in damage to land, buildings or crops, or arise by reason of negligence on the part of the city. Such construction of the statute would give rise to speculation and was not contemplated therein.
The fact that the city may not take the entire waters of Esopus creek from some years cannot be considered here. It has a right by reason of the execution of the plan to take all the waters at once or whenever it pleases and for such right riparian owners below the dam are entitled to compensation for depreciation in the value of land by reason of the execution of the plan of the city and thereafter are forever barred from any future claim therefor.
The order of confirmation should be specific as to the rights and interests acquired by the city to the end that the public records relating to real estate in the county of Ulster will disclose the rights of the city and give public notice to future purchasers of any land therein.
For error in allowance of compensation to claimant for lands conveyed to him in 1915, the amount of which is not ascertainable from the record so as to permit a modification, the order of the Appellate Division should be reversed and a new hearing had to determine the compensation to which claimant is entitled in accordance with this opinion.
CHASE, CUDDEBACK and McLAUGHLIN, JJ., concur with COLLIN, J., for affirmance; HISCOCK, Ch. J., and CRANE, J., concur with HOGAN, J., for reversal.
Judgment affirmed. *Page 507