Sturr v. Water Power & Control Commission of Conservation Department

267 A.D. 44, 44 N.Y.S.2d 940, 1943 N.Y. App. Div. LEXIS 5964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1943
• Status: Published

Opinions

Bliss, J.

A previous apportionment of costs of these same drainage improvements in the Wallkill Valley Drainage Improvement District was annulled by this court on January 17, 1940 (Matter of Stoltz v. Water Power & Control Comm., 258 App. Div. 440) and the matter was remitted. Since then much additional evidence has been taken by the Commission and a new determination made which is the same in result as the previous one.

The Wallkill Valley Drainage Improvement District includes the so-called “ black dirt ” area or bottom lands of the Wall-kill Valley in the towns of Goshen, Minisink, Warwick and Wawayanda in Orange County. It is about twelve miles long and three miles wide and contains approximately twenty thousand acres. It has lately and especially since the formation of the district become widely known as the ‘ ‘ onion center ’ ’ of the country.

* Frequent floods led the property owners, many of whom now oppose this assessment, to urge the. formation of the district, to seek State and especially Federal financial assistance and the passage of appropriate legislation. The district itself was formed on April 23, 1935, by the respondent Commission pursuant to Laws of 1935, chapter 348, which added sections 494-o to 494-s (now §§ 494-m to 494-q) both inclusive, to article VIII of the Conservation Law. Point seems to be made by the petitioners that the formation of this district and the carrying on of the project was something forced upon them by State or national officials. While the argument, even if true, would be quite beside the point here involved, it is only fair to say that the present record fails to sustain it and shows the contrary to have been the fact.

The district was legally established and a great deal of work done by Federal authorities under direction of a TJnited States Army officer, with Federal funds and the labor of the Civilian Conservation Corps. While the project is not completed it is apparent that the work already done has improved flood conditions, and has benefited the district as a whole. Likewise the final completion when complete benefits will be felt is just that much nearer realization and property values have risen on that account.

The Commission, after formation of the district and other necessary steps, proceeded to determine the benefits as required by the statute — the test being the difference in value of each parcel to be benefitted in its natural state and as though completely drained. Petitioners now seek to review this determination, although they made no effort to do so within the time required by the statute. Thus that determination is not now before us. The next step was the apportionment of cost. These costs were principally those incurred for necessary rights of way, easements, materials and engineering and amount in all to approximately $225,000 plus interest. This figure may be compared with the total expense of $4,300,000 supplied by the Federal government. The Commission first designed a complete system of drainage for the entire district and estimated the cost of such system. This was done in detail. Then the cost of all these ditches was apportioned and in case the total cost assessable on any parcel exceeded the total benefit to that parcel, the plans were modified to eliminate such excess. As the Federal government was constructing the main channel there was deducted from the total benefit to each parcel the amount assessable on that parcel for all drainage work except the main channel, leaving a residual benefit from the main channel, the estimated cost of which was then apportioned according to these residual benefits. The reason advanced for the adoption of this method is logical. Had this not been done, a parcel farthest removed from the ditch would have had to bear a share in whatever cost might be assessed against it, in considerably greater proportion than a similar parcel adjacent to the ditch and most immediately benefited thereby, which obviously would have been unjust. The Commission then apportioned the costs of the rights of way, spoil, and other expenses here under review, in the same percentages that it would have apportioned the construction cost of the main outlet ditch, had that cost been borne by the property owners instead of being paid by the Federal government. Credit was also properly given for drainage work already done.

We believe that the Commission adopted a method fairly within the statutory requirement. (Conservation Law, § 492.)

The determination should be confirmed.

(See “Black Acres”, National Geographic Magazine, Nov. 1941.)