
    Cornelia Lee and Others, Appellants, v. Charles H. Childs and Others, as and Constituting the Board of Commissioners for Changing the Channel of the Mohawk River under Chapter 93 of the Laws of 1891 and Acts Amendatory Thereof and Supplemental Thereto, Respondents.
    Fourth Department,
    November 15, 1910.
    Water and watercourses —improvement of Mohawk river under chapter 93 of the Laws of 1891 — damages of riparian owners—statutory remedy exclusive. *
    As the right of riparian owners on the Mohawk river who do not own the bed thereof to compensation for damages caused by changes in the river channel authorized by chapter 93 of the Laws of 1891 depends wholly upon said statute, they can enforce their rights to damages only by the procedure provided in the statute. That remedy is exclusive; a suit to restrain the commissioners from making the contemplated improvements does not lie.
    Appeal by the plaintiffs, Cornelia Lee and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 19th day of November, 1908, upon the report of a referee dismissing the complaint upon the merits.
    The action was brought to restrain defendants, as commissioners, from diverting the water of the Mohawk river from its old channel to the new channel, made therefor by said commissioners, unless and until the claim of plaintiffs for damages claimed on account of such diversion was paid, or unless and until the said commissioners should apply for and secure the appointment of a commission to ascertain said damages under the provisions of chapter 93 of the Laws of 1891.
    
      Theodore L. Cross, for the appellants.
    
      William Townsend, for the respondents.
   Robson, J.:

Plaintiffs, as the referee has found, are not owners of any part of the bed of the Mohawk river. As a corollary to this finding he has found that the State, for purposes of advantage to the use of the stream by the public, may change the course thereof without payment of damages or liability therefor to owners of land adjacent to the river. But it seems that the statute by which the change of the river’s channel was authorized and under which these defendants were appointed and act as commissioners in fulfilling the purposes of the statute gives to the owners of lands adjacent to the river as it flowed in the old channel a right to damages for diversion of the waters of the stream which they did not have at common law. Section 5 of this statute (Laws of 1891, chap. 93) among other things provides in effect that the commissioners are authorized in behalf of the People of the State of Hew York to agree with the riparian owners, or the owners of lands adjacent to the old river channel, as to the damages occasioned to such owners by the change of the channel, and in case of disagreement as to the amount of damages, the commissioners shall acquire the title, rights or interests of such owners by condemnation proceedings. . (See, also, Laws of 1903, chap. 126, amdg. said §5.) It would seem to be clear that in this provision of the statute there is a recognition that owners of land adjacent to the old channel had an easement appurtenant to their land, which, if taken, or interfered with by changing the river channel, would entitle the owners to compensation therefor in the manner provided by the statute. This right to compensation is again indirectly recognized in an act which is supplemental to the act above cited (Laws of 1907, chap. 131), which authorized the city of Utica to borrow money for the purposes, among other things, óf the payment of damages to riparian owners upon the old channel of said river for diverting the water thereof.”.

The case here presented is one where the work is authorized by the statute to be done," and the right to prosecute and complete the work is not made to depend upon the satisfaction of the right of riparian owners to damages, if any they have. , Plaintiffs’ right to damages being dependent upon the statute alone, they are limited in enforcing that right to the procedure provided by the statute. The statutory remedy is exclusive and must be followed by those seeking relief under its provisions. (Matter of Melenbacker v. Village of Salamanca, 188 N. Y. 370, 377 ; Smith v. Boston & Albany R. R. Co., 181 id. 132.) For that reason, if for no other, this action to restrain the commissioners from completing the contemplated, improvement will not lie..

If plaintiffs have rights as owners of lands adjacent to the old river channel, and the commissioners refuse to take proceedings to condemn those rights, then performance of their statutory duty may be compelled in a proper proceeding for that purpose.

In any event this action ought not to be maintained, even if plaintiffs’ right to relief therein were to be based solely upon a discretionary exercise of the court’s equitable powers in refusing the injunction. This great public work should not be held up simply because plaintiffs’ damages have not been paid or adjusted. Besides, plaintiffs’ business, in which the river waters were used and upon deprivation of which the chief claim for damages is predicated, was conducted in violation of a city ordinance, and was, itself, a nuisance.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  