
    In the Matter of the Application of Edward Tracy et al., Water Com’rs of Lansingburgh, Resp’ts, to acquire water rights of Warren Erwin, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 5, 1891.)
    
    Riparian owners—Damages for appropriation of rights.
    Respondents appropriated the waters of a stream above appellant’s mill, and deprived him of his water power. In this action to acquire his water rights, the commissioners awarded $900 therefor. It appeared that the stream was a torrential one, liable to be suddenly swollen by heavy showers and again shrink to a small stream, and that the storage dam was small. Held, that the award was sufficient; that the average capacity of the stream exclusive of seasons of flood and freshet was not a true test of the value of the appellant's water rights, as the water that runs to waste for the lack of a sufficient storage dam to hold it ought not to be reckoned or applied to eke out the shortage of the dry season.
    ■ Appeal by Warren Erwin from the order of the special term confirming the award of the commissioners and from the award itself.
    
      James B. Stevens,• for app’lt; A. C. Oomstock, for resp’ts.
   Landon, J.

For the purpose of providing the village of Lansingburgh with a proper supply of pure water, the water commissioners intercepted and appropriated the waters of Oil Mill creek above the appellant’s premises and thus totally deprived him of the use of the stream as a water power and privilege. The water commissioners instituted this proceeding under chap. 432, Laws 1883, to acquire the water, rights thus appropriated. The commissioners appointed by the court to appraise the just compensation to be made to the appellant awarded him $900.

No error of law is alleged. We should not find an error of fact in the amount of the award unless it appears to be more or less than the clear weight of the evidence requires. The appellant strenuously insists that it is much less. The stream had formerly been used as a water power, but such use had been suspended for several years before the appropriation. The question was, what was it worth for the purposes of utilization ? The nature of the ground would afford an ample head of water from a small storage dam, and hence, since the storage capacity was small, a material question was, what was the available and constant volume or capacity of the stream. The commissioners, personally inspected the stream and locus in quo and heard the-testimony of the many witnesses. They evidently concluded that the stream was a torrential one, liable to be quickly and greatly swollen by heavy showers and rains and rapidly melting snows, and, these subsiding, to shrink to a comparatively small stream. They obviously concluded that without a large storage dam the surplus of water in seasons of high water would be wasted, and when the stream returned to its constant normal flow its supply of water was too inconsiderable to be of large value. The appellant undoubtedly pressed upon their attention, as he presses upon ours, what we may term the fair average capacity of the stream. That is to say, its average capacity exclusive of seasons of flood and freshet. It is obvious that this is not a true test, for the water that runs to waste for lack of a storage dam sufficient to hold it ought not to be reckoned ; it cannot be applied to eke out. the shortage of the dry season. Indeed, without a sufficient storage dam or reservoir, there can be no practical averaging of the-volume of water; each day must afford its own supply, and every day is a lost one in which the supply is too small. These were undoubtedly the views of the commissioners, and it must be conceded that they find support in the testimony and seem to be-sensible.

The appellant insists that the price or value of a horse power of water at Cohoes is the proper measure of the value of a horsepower of water in this stream. This difference is to be noted: at Cohoes the water is delivered to the customer by the water power company free from any liability to the customer to maintain the dam which stores it. Here the appellant would have to maintain his own dam. This difference was undoubtedly considered by the commissioners and affected the amount of the award, and properly so, we think.

Upon the whole case we must affirm the award and order.

Order affirmed, with fifty dollars costs and disbursements.

Learned, P. J., and Mayham, X, concur.  