Whitehall Water Power Co. & Champlain Silk Mills v. Atlantic, Gulf & Pacific Co.

Howard, J.:

Tn 1*765 Philip Skene obtained from the Crown of Great Britain the grant of about 25,000 acres of land lying in the northern part of what is now Washington county. The King in his royal patent made these reservations: “Excepting the said Wood Creek which is reserved as a common highway for the benefit of the publick. ” Also ‘ ‘ except Wood Creek as aforesaid, for a common and publick highway.” At or near the site of the falls in Wood creek the Whitehall Water Power Company, Limited, and its predecessors in title have, for many years, maintained a dam across the creek. This dam was destroyed in 1910 by the defendant herein, a foreign corporation pursuing the work of constructing a section of the barge canal under contract with the State of New York. Neither the dam nor the bed of the creek had been appropriated by the State at the time of the alleged trespass. There are two plaintiffs herein, but in speaking of the “plaintiff” I shall refer to the Whitehall Water Power Company, Limited, the alleged owner of the premises.

In Champlain Stone & Sand Co. v. State of New York (142 App. Div. 94), a case decided by this court and unanimously affirmed by the Court of Appeals (205 N. Y. 539), it was determined that the bed of Wood creek did not pass to the grantee by the “Artillery Patent” but was retained by the Crown of Great Britain, and, as a result of the Revolutionary war, became vested in the State of New York. Again, in Johnson v. State of New York (151 App. Div. 361), under this very “ Skeeneborough Patent,” the title to Wood creek was declared to be in the State. These adjudications settle the law and no further discussion as to the effect of the reservations in these patents is necessary.

But even though the Crown did retain title to the bed of the creek, which title afterwards came to the State, the plaintiff, nevertheless, claims to hold the title by a subsequent grant from the State.

Philip Skene was a Tory and a traitor. His lands in the State of New York were forfeited by attainder, were confiscated and sold. The Commissioner of Forfeitures who conducted the sale and executed the deeds derived his authority from chapter 64 of the Laws of 1784. That statute, so far as it confers authority upon the Commissioned to sell, reads: “That it shall * * * be lawful * * * for the said Commissioner * * * to sell and dispose of all lands, tenements, hereditaments and real estate * * * heretofore confiscated and forfeited to the People of this State * * *. ” The deed which Webster, the Commissioner, executed, undertook to, and, so far as the form goes, it did convey a good, perfect and complete title to the premises described. So far as the statute authorized the conveyance of the lands described in the deed the conveyance was perfect and the State warranted the title. But the Commissioner undertook, apparently, either purposely, or through ignorance or mistake, to convey Wood creek; and it is contended by the plaintiff that this conveyance gave to the grantee a good and perfect title to the bed of the stream. The plaintiff’s position is that Webster’s deed, even though he was acting beyond the scope of his statutory authority, was valid and sufficient and was recognized as such by the State and confirmed by subsequent statutes.

The Commissioner could only do that which the statute authorized him to do, and the subsequent ratification of his acts by statute was only a ratification of his lawful acts. The State if it had intended to do so, might have ratified and validated Webster’s attempt to deed away the bed of Wood creek, but these statutes of ratification on which the plaintiff relies are general in their terms and expression. They do not specifically confirm the deed of Wood creek. Therefore, we must construe these confirmatory statutes as applying only to the authorized acts of Webster. This construction is forced upon us by the further fact that specific statutes of the State (Laws of 1801, chap. 186; Revised Laws of 1813, chap. 4.7; Laws of 1879, chap. 272; Laws of 1901, chap. 683) have continuously recognized Wood creek as the property of the State. In the statute of 1801 the State declared Wood creek to he a public highway “ to the falls.” If the plaintiff was only laying claim to the dam and the land immediately under it, there might be some force in its contention that the State intended to make it a public highway only to the falls, but not through and including the falls. The plaintiff, however, claims not only the land Immediately under the dam which was destroyed but also the “Falls, water and lands ” described in the Webster deed; that is, all that part of the bed of Wood creek included in the conveyance. It is altogether improbable that the State would repeatedly declare this stream to be a public highway and appropriate moneys to clean it out and make it passable as a public highway while acknowledging it to be the property of private owners. Our conclusion, therefore, is that Webster’s deed of the premises in question did not divest the State of its title to the bed of Wood creek, and that no subsequent statute has operated to give it that effect.

But the plaintiff further claims that the State is estopped from making any claim to the premises in question. We think this contention is unsound. That a sovereign State may, under certain circumstances, like an individual, be estopped, may be admitted, but the State can never be estopped by the unauthorized acts of its agents. (People v. Ostrander, 144 App. Div. 860; Wells v. Johnston, 171 N. Y. 324; Miller v. Mayor, etc.; 3 Hun, 35; Indiana Central Canal Co. v. State, 53 Ind. 575.) The acts of the State itself, that is, the statutes relative to forfeited lands, might operate as an estoppel were they intended to be confirmatory of Webster’s unauthorized acts, but, as we have seen, they referred only to his lawful acts. Ho estoppel was pleaded by the plaintiff, but, assuming that the plaintiff could avail itself of the doctrine of estoppel without pleading it, yet, under the circumstances presented here, we hold that the State was not estopped.

It is perhaps well to refer to the plaintiff’s apparent consent to the alleged trespass. The evidence is rather meager on this subject and not altogether clear, but it appears that the original plans of the State did not contemplate a removal of the old dam. After a conversation between a representative of the State ánd a representative of the plaintiff the plans were changed. In this conversation Mr. Meyer, speaking for the plaintiff, stated that if the State gave him more head he did not care whether they took out the old dam. The plans were then changed and the defendant 'proceeded to remove the old dam without opposition from the plaintiff, and, indeed, in apparent complete harmony with the plaintiff, for an arrangement was made in writing between the parties whereby the defendant agreed to and did supply the plaintiff with electric power in the interim between the demolition of the old dam and the construction of the new one. It is true that the plaintiff in that agreement attempted to reserve all its legal rights; but it made no objection to the removal of the dam and it could not, in fact, consistently object after having induced the change of plans by its previous consent. The plaintiff may have been under some misapprehension as to its legal rights; it may have supposed that the destruction of the property gave it a cause of action against the State. But as to the acts of this defendant, if the plaintiff gave its consent, it cannot now complain. Where there is acquiescence there can be no trespass. We do not, however, base our decision on this acquiescence, but on the failure of the plaintiff to establish its title to the premises in dispute.

The supply of water power to the plaintiff’s - mill has not been depleted but greatly improved by the destruction of the old dam and the erection of the new one. Neither has the State attempted to cut off the plaintiff from the use of this water power; it may perhaps attempt to do so in the future. But no issue as to the prescriptive rights of the plaintiff in the • waters of Wood creek is presented by this appeal, and we express no opinion on that subject.

The judgment should be reversed, with costs.

The findings of fact of which we disapprove are those numbered 8, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 31, 33, 34.

In addition to the findings of fact of which we approve made by the trial court as disclosed in the decision and in the findings made at the request of the defendant we adopt as further findings of fact the requests of the defendant to find as indicated in the record and numbered 14, 15, 16, 18, 19, 22, 24, 27, 31, 33, 35, 36, 37, 38, 40, 41.

All concurred, Kellogg, J., concurring in result in memorandum, in which Lyon, J., concurred.