(dissenting). I dissent and vote to modify. Chapter 256 of the Laws of 1834, entitled “ An Act to provide for supplying the city of New-York with pure and wholesome water,” provided for the appointment of five persons as water commissioners for the city of New York. They were charged with the duty of making a survey and adopting a specific plan for the procurement of a water supply for the city of New York, which plan, upon approval by the common council of the city, was to be submitted to the electors for their assent or refusal to allow the common council to proceed in raising the necessary money to construct the works. It is undisputed that the specific plan of these water commissioners, formulated in accordance with the provision of the act, was for the erection of Old Croton dam, as subsequently constructed, which is six miles upstream from the property owned by the petitioner. The water commissioners, by petition dated the 25th day of January, 1842, addressed to the vice-chancellor of the First Circuit, sought the appointment of three appraisers to examine property inclusive of that now owned by respondent “ and to estimate the amount of damage thereto by the operation aforesaid.” The damage, in the opinion of these commissioners, as appears from their petition, was “ that by the construction of the work aforesaid the use of the water of the Croton River for Milling and Manufacturing purposes will be diverted from the lands and premises hereinafter particularly mentioned and described.” On the 8th day of March, 1842, the vice-chancellor made an order *29appointing appraisers to “ examine the property hereinbefore described and to estimate the damage sustained by the owner thereof in consequence ‘ of the diversion of the said waters therefrom for the purposes aforesaid.’ ” The order recites that the owners of the land had objected to the estimating of damages before the proportion of the “ said waters ” to be diverted could be ascertained. It was, therefore, provided: “ And whereas it is contemplated that it may be necessary now or at some future time to divert the whole of the said waters of the said Croton River for the purposes aforesaid; and the said petitioners therefore, and in order to obviate the aforesaid objection, consent the said damages shall be estimated as for a total diversion of said waters from said lands and premises. Therefore it is ordered that the said appraisers do estimate said damages as for a total diversion of said waters from said land and premises accordingly and that the Mayor, Aldermen & Commonalty of the City of New York' be at liberty at any time or from time to time hereafter, to divert a part or the whole of the said waters of the said Croton River from this land and premises for the purposes contemplated by the aforesaid act.”
The report of the appraisers in fixing damage states, inter alia: “ And we do further report that such appraisal and estimate is made as for a total diversion of said water from said land, premises and property in the said order and map particularly mentioned and described, and that in making such appraisement regard was had to the circumstance that in and by said order the Mayor, Aldermen and Commonalty of the City of New York are at liberty at any time and from time to time hereafter to divert a part or the whole of said water from the said Croton River from said lands and premises, for the purposes contemplated by the aforesaid act.” (Italics mine.)
The orders confirming the report of the appraisers recite that it appears that the appraisers estimated the damages which have been or will be sustained by the owners in consequence of the diversion of the water of the Croton river for the purposes aforesaid, and such appraisal is made as for a total diversion of said waters from said property and decrees that upon such payments the city of New York “ shall be at liberty at any time, or from time to time thereafter to divert a part or the whole of the waters of the said Croton River from the said lands and premises for the purposes contemplated by the aforesaid act.”
When the act providing for the promulgation of a plan, the plan itself, the petition of the water commissioners, the order of appointment of appraisers, the report of the appraisers, and the order confirming that report are considered together, it seems *30reasonably clear to me that the damage which was estimated and paid was for the diversion of water caused by the erection of the specific dam in contemplation. How much water this dam would divert was a moot question, and, therefore, damages were allowed on the basis of diversion of all that it was possible to divert, which at the most, was all the water that would flow into the reservoir created by the dam. That, I think, is the meaning of “ the whole of the said waters of the said Croton River ” as the term is used in the order of appointment and the report of the appraisers. This did not mean all the water of the Croton river itself in so far as the river was comprised of and fed by tributaries below the dam, separate and independent of water, if any, that might flow over the dam in question.
In 1905, when the city of New York constructed the New Croton or Cornell dam, approximately two miles southwest of the Old Croton dam, it impounded, from seven tributaries to the Croton river, waters that never constituted waters that flowed into the reservoir behind the old dam, and, in my opinion, were not appropriated and diverted waters within the contemplation of the condemnation proceeding of 1842. It is conceded that respondent has not been compensated for such additional diversion.
In my opinion, therefore, the order under review should be modified by providing for a direction to the corporation counsel of the city of New York to institute and prosecute appropriate condemnation proceedings to ascertain and fix and pay damages to the petitioner by reason of the damning up and diversion of the waters below the old dam.
Peremptory mandamus order reversed on the law and not in the exercise of discretion, with costs, and proceeding dismissed with costs.
Settle order on five days’ notice.