Matter of Van Etten v. . City of New York

124 N.E. 201, 226 N.Y. 483, 1919 N.Y. LEXIS 894

• Court: New York Court of Appeals
• Decided: July 15, 1919
• Status: Published

Opinions

Collin, J.

This proceeding was instituted under chapter seven hundred and twenty-four of the Laws of 1905 and the amending act, chapter three hundred and fourteen of the Laws of 1906. A repetition of our former statements concerning the purposes and contents of the statute (Matter of Board of Water Supply, 211 N. Y. 174; People ex rel. Burhans v. City of New York, 198 N. Y. 439) is unnecessary.

On September 9, 1913, the closing of the dam impounding the waters of Esopus creek — a non-navigable, freshwater stream — stopped the flow of its waters below the dam entirely, except as the city of New York chose to release water at the dam. The claimant, Van Etten, owned lands riparian to the creek about five miles below the dam. The flow of the waters of the creek along those lands was, of course, destroyed by the dam and its closing. In this proceeding he sought and was awarded compensation for the destruction. A part of the lands was conveyed to the claimant by one Oliver, March 31, 1915, that is, subsequent to the closing of the dam and the consequent destruction of the flow. The record presents the question whether Van Etten or his predecessor in title was entitled to the compensation to be awarded as to such part of the lands.

The city of New York could lawfully take or acquire the right of the riparian owner to the natural and usual flow of the waters of Esopus creek only through and by means of the exercise of the right of eminent domain. Until the city took or acquired the title to the right any interference by the city with it was a wrong and a trespass. The right of the owner of riparian land to the natural flow of water in a stream along the land is a corporeal hereditament and is an incident to and is annexed to the land as part and parcel of it. It is not, and is more than, an easement. The right is usufructuary. It is properly classified at common law, equally with the land itself, as real property. The statute in question recognizes and adopts the classification in the definition: “ The term real estate as used in this act shall be construed to signify and embrace all uplands, lands under water, the waters of any lake, pond or stream, all water rights or privileges, and any and all easements and incorporeal hereditaments and every estate, interest and right, legal and equitable, in land or water. * * *.” (Laws of 1905, chapter 724, section 25.) The Real Property Law recognizes it. (Cons. Laws, chapter 50, section 2.) The claimant as the owner of lands riparian to Esopus creek owned the right, as a part of his real estate, as a part of his lands, to have the waters flow'along the lands and the city of New York could not take or acquire that right — could not lawfully and rightfully divert or destroy the flow — otherwise than through the exercise of the right of eminent domain as authorized by and pursuant to the Constitution of the state, the statutes in question, or the relevant sections (Sections 3357-3384) of the Code of Civil Procedure (Gardner v. Village of Newburgh, 2 Johns. Ch. 162; Scriver v. Smith, 100 N. Y. 471; Smith v. City of Rochester, 92 N. Y. 463; Johnson v. Jordan, 2 Metc. 234,239; Tracy Development Co. v. Becker, 212 N. Y. 488; Farnham, Waters & Water Rights, sections 155e, 462, 472, 486, 489, 503, 512, 731; Kaukauna Water Power Co. v. Green Bay, etc., Canal, 142 U. S. 254; Irving v. Borough of Media, 194 Penn. St. 648.) The case of Benedict v. State of New York (120 N. Y. 228), to which our attention has been called, holds that where a dam for canal purposes was intended to be a permanent structure for the purpose of increasing the depth of water in the river the resulting overflow upon the plaintiff’s land is the talcing of a permanent easement by the state for the use of the canal. The permanent easement was created when the dam was completed and, as the claim for damages was not presented in one year after the construction of the dam, the claimant under the authorizing statute waived his right to damages against the state. In making this decision the court held that the claim of Benedict came within chapter 293 of the Laws of 1830 and was controlled thereby and by the Revised Statutes (Part 1, title 9, chapter IX, sections 46 and 48). The decision is not inconsistent or conflicting with those we have cited. The instant case is one of taking and appropriating the real estate of the claimant, not of damage done by a public work constructed on other lands. (Call v. County Commissioners of Middlesex, 2 Gray, 232.)

The amended claim filed by the claimant with the appraising commissioners, as well as the original claim filed by him, was for the interference with or destruction of the natural flow of the waters of the creek. It is true that the appraising commissioners were, in form, appointed under the provisions of section forty-two of the statute. This proceeding has been conducted, however, with the assent and approval of all the parties interested as one to condemn the real property of the claimant. By common submission and consent it was deemed and conducted as an exercise of the right of eminent domain on the part of the city of New York. The parties have waived the question of jurisdiction and we must treat the proceeding as under the statute for the condemnation of real estate. Under the statute the commissioners of appraisal are to estimate and appraise “ the just and equitable compensation ” to be made to the owners of the real estate taken. (Sections 9, 11, 12, 13.) It is the universal rule, in support of which authorities need not be cited, that compensation in eminent domain includes the sum of the diminution in value of the part, not actually taken, of a parcel of land in part taken. Section 42 of the statute 'has no relation to the talcing or acquisition in eminent domain of real estate by the city. The statute recognizes the clear and established distinction between “ the just and equitable compensation ” for real estate appropriated and the “ damages ” resulting from the construction or execution of the plans. The execution of the plans for a public improvement and the payment of the damages for decreases in value of the property effected by the execution of the plans is not and cannot be under the Constitution or any legal procedure or rule the exercise of eminent domain. The provisions of the statute relating to the proceedings and report of the commissioners in condemnation and the procedure subsequent to the report are applicable in this proceeding.

In eminent domain the rule is established beyond room for discussion that he from whom the title of the condemned property is taken is entitled to the compensation. The time of the acquisition of title by the condemnor is the time at which the right to compensation and its amount accrued and the then grantor in invitum is the owner of and the party entitled to be paid the compensation. (Ga tes v. DeLaMare, 142 N. Y. 307, 314; Matter of Mayor [Trinity Ave.], 116 App. Div. 252; Drury v. Midland Railroad Co., 127 Mass. 571, 578; Wood v. Commissioners of Bridges, 122 Mass. 394; Ft. Wayne & S. W. Traction Co. v. Ft. Wayne & W. R. Co., 170 Ind. 49; Matter of Nassau Electric R. R. Co., 173 App. Div. 253.) As to acts of the condemnor which are in their nature trespasses or which work consequential damages, as distinguished from compensation in eminent domain, the right to recover the damages flowing from them is in the owner at the time the injury is done. (Pappenheim v. Met. El. R. Co., 128 N. Y. 436, and cases last cited.) What concerns us is the time of the passing to the city of the title of the claimant to the right to the flow and use of the waters of Esopus creek. The general and fundamental rule, in the absence of a statutory provision, is that the title does not pass until, and does pass when, the compensation is paid. The payment of the compensation and the passing of the title are, presumptively, simultaneous acts. (Cushman v. Smith, 34 Me. 247; Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641.) The rule may be and commonly is changed by statute. The title may, by force of a statute, become vested before payment or award of compensation if an adequate and legally certain remedy is provided whereby the owner may compel payment of his compensation. But it is the divesting of title which entitles to the compensation and he from whom the title is taken, and not his grantor or grantee, is' to be paid the compensation awarded. (Matter of Petition of the United States, 96 N. Y. 227; Matter of Application of Mayor, etc., of the City of New York, 99 N. Y. 569; Sweet v. Rechel, 159 U. S. 380.) When the state is the condemnor the statute probably need not provide the specific assurance of the payment or recovery of compensation.

The obvious scheme of the statute, briefly stated, is: Sectional maps or plans of the entire work contemplated by the act, including the sites of dams, reservoirs, aqueducts, etc., delineating and numbering in parcels all the real estate as defined by the statute, or otherwise, which the prosecution and completion of the work authorized by the act required, should be made from time to time by the engineers and employees of the board of water supply of the city of New York. (The real estate taken below the dam or dams, that is, the right to the use and natural flow of the waters of the creek,. was not, in fact, so delineated.) Those maps or plans were to be approved by the board of water supply, the board of estimate and apportionment and the state water supply commission. They might be approved section by section, “ and shall be so determined that one set of commissioners (in condenfnation) shall not be appointed upon a section covering more property than can reasonably be passed upon and awards made by said commissioners within the limits of a year from the time of the filing of the oaths.” (Section 5.) For each delineated section a set of commissioners should be appointed. The commissioners, as to a section shall take and file oaths. “ On filing the said oath, in the manner provided in the previous section, the city of New York shall be and become seized in fee of all those parcels of real estate which are on the maps,” etc. (Section 11.) The compensation awarded shall be “ with lawful interest thereon, from the date of filing the oath and certified copies thereof as by this act required.” (Section 17.) “ Upon the filing of the oath of the commissioners of appraisal ” the contracts, specifications and plans for construction may be approved and the construction entered upon. (Section 26.) Until the oath is filed the city or its representatives can enter upon or interfere with any land or water or water rights_for the purposes only of making surveys or investigations and posting notices. (Section 4.) Inter- ' ference with the real estate in any other manner or for any other purpose was unlawful and a trespass and in no sense constituted the taking. (Village of St. Johnsville v. Smith, 184 N. Y. 341.)

In virtue of the express enactments of the statute the title to this real estate of the claimant, that is, the title to the right to the flow and use of the waters of the creek, did not pass from him, and the city did not acquire it, until the time of the filing of the oaths of the commissioners of appraisal who awarded the compensation. Their oaths were filed September 9, .1915. The conveyance from Oliver to Van Etten was, as we have stated, made March 31, 1915. The closing of the dam did not divest Oliver of the title he then had. The statute otherwise expressly provided. So long as Oliver held the title he could convey it, and Van Etten, from whom the title was taken by the city of New York, was entitled to the compensation. (Brinckerhoff v. Wemple, 1 Wend. 470; Matter of City of Syracuse, 224 N. Y. 201; Village of St. Johnsville v. Smith, 184 N. Y. 341; Matter of Thompson, 89 Hun, 32; affirmed, 148 N. Y. 743; Oliver v. P. V. & C. Railway Co., 131 Penn. St. 408.)

The commissioners who made the awards were appointed May 1, 1915. The order appointing them stated: “ This commission shall be and act as the successor to certain commissions hereinbefore duly appointed by orders of this court and knowrn as Business Damage Commissions Nos. 1, 2 and 3, as is more fully set forth in the petition of the Board of Water Supply of New York dated Febry. 16, 1915.” Inasmuch as the appearance and consent of the parties to proceed before the commissioners were essential to give them jurisdiction in this proceeding to condemn the real estate actually taken, the passing of the title was the time of the filing of the oaths of the commissioners who thus acquired jurisdiction and made the award. The claimant was entitled to the compensation for the taking of the title to the riparian right incident to and a part of the tract conveyed by Oliver. The award was properly made.

This proceeding has no relation to injuries, if any, to the lands of claimant, caused by the city by means of excessive and abnormal quantities of water discharged into Esopus creek or its- channels.

The order should be afiirmed, with costs