
    
      Ex parte Miller.
    The canal commissioners demised to M. the right of taking and using for hydraulic purposes, the water which should flow from a waste-wier, at a prescribed height, so far as the same might be taken without interfering prejudicially with canal navigation; reserving the right to the state wholly to resume the subject of the demise, when the commissioners should 'think it necessary, without being liable to pay damages, or to make compensation for improvements, erections, &c. The lessee transferred all interest in the lease, and the assignee erected and had nearly completed an expensive flouring mill on the premises, when the commissioners caused the waste-wier to be raised beyond the height mentioned in the lease. Held, that the power reserved in the lease extended as well to a partial as to a total resumption of the privilege demised; and that the act of raising the waste-wier was therefore lawful.
    An absolute power of revoking an easement, reserved in a demise thereof, is not invalid as being repugnant to the demise.
    No formal expression of opinion on the part of the canal commissioners, as to the necessity of resuming the subject of the demise, was requisite in this case as a preliminary to (he exercise of the right of resumption; that opinion being sufficiently manifested in the act of causing the waste-weir to be raised.
    The act of the commissioners in resuming the subject of the demise, formed no ground of claim to compensation or damages on the part of the lessee or assignee.
    The statute, (Sess. L. 1838, p. 282, ch. 289,) authorizing the canal commissioners to settle and pay for damages on account of leased surplus waters being resumed in whole or in part, applies only to cases where a legal or equitable claim to compensation exists, and not where, as in the present case, the lessee has stipulated that the state might at any time revoke or modify the lease without being liable to respond in damages.
    The mere reservation in the lease of the right of resuming the privilege in question, would, of itself, have cut off all claim to compensation, independent of the express stipulation to that effect.
    Motion for a mandamus against the canal commissioners. From the relator’s affidavits, it appeared that in 1829, it having become necessary to secure to the Erie canal at Utica an additional supply of water, the canal commissioners appropriated to the use of the state certain land of Mrs. Maria Miller, pursuant to an arrangement with her agent for the purpose of a site for the present weigh lock; with the privilege of a water course to the Mohawk river for discharging the water wasting from the weigh lock, and from the waste-wier constructed at the time adjacent to the weigh lock. On applying to the acting commissioner for compensation, he replied, there would be surplus water wasting from the waste-wier and weigh lock, to the use of which Mrs. Miller would legally have a pre-emptive title; and he suggested that she had better apply for a lease, the rent of which would be fixed at a low rate on account of her claim for damages. She accordingly applied ; and a valuation of rent was made -by the canal appraisers at $25 per annum for the first two years, and $50 per annum afterwards. They gave a certificate to that effect, stating the estimate to be of “the surplus water which maybe spared at the waste-wier, &c. The said estimate is made with reference to a waste-wier fifty feet long, and in height three feet ten inches above the bottom level of the canal during the season of navigation, and in the winter season three feet.” On the 27th of March, 1830, the canal commissioners accordingly executed to Mrs. Miller a lease of the right, &c. of taking and using “ at all times hereafter, for hydraulic purposes, the surplus water aforesaid,” (viz. as described in the certificate of appraisal,) “so far as the same may be taken without interfering with the due and proper use of the water for the purposes of navigation or transportation; reserving however, now and at all times hereafter to the said people, &c. the right wholly to resume the water, &c. and the privilege, <Jfce. without paying damages or allowing compensation for improvements or erections which may or shall be made, &c.; and also the right, without allowing any compensation, &c. to abandon or destroy the work, by the construction of which the surplus water herein conveyed has been created, whenever in the opinion of the canal commissioners, or the legislature of the state of New-York, the occupancy or use of said work shall cease to be advantageous to the said people of the state of New-York,” &c. No counterpart of the lease was executed by Mrs. Miller. She soon after conveyed her interest in virtue of- the lease to the relator, who, in the years 1831, 2, erected and nearly completed a flouring mill on the premises, the cost of which was $30,000. A few days before it was completed, the canal board passed a resolution annulling the lease, on the ground, 1. That the commissioners had no authority, to give it; and 2. That no counterpart had been executed. The waste-wier was then raised and continued to the present time beyond the stipulated height. In 1841, a new and longer waste-wier was erected east of the first waste-wier, from which the water still flows into the mill pond, and can 'be used in the same manner as the water from the first. The new one. is substantially an enlargement of' the old one; and intended to answer the same purpose upon a larger scale. The affidavit of the relator expressed an opinion, that “ it is physically impossible to use the said water in any way that shall interfere with the navigation farther than was intended by the appraisers and commissioners when they guaged the waste-wier and gave the lease”—assigning a reason.
    The stipulated height of the wier was about two inches below the surface of the canal; and it so continued till 1832, when it was raised by the commissioners about four inches, and has since so remained.
    The relator’s affidavits and other papers detailed the occasion and mode of fetching into and discharging from the canal the surplus water in question; but these facts are not material to the question decided.
    The opposing affidavit. of Mr. Earl, one of the canal commissioners, tended to question a fact averred on the ‘ part of the relator, viz. that the surplus water demised to Mrs. Miller arose from the necessity of fetching water into the canal by way of additional supply. He expressed an opinion, that the interest and necessities of navigation and transportation required that no water should be wasted or taken off at the waste-wier; that the water at the present waste-wier should be kept up to the top water line of the canal; that the increasing necessities of navigation and the enlargement of the canal would require that it be elevated a few inches above the top water line; and that no greater quantity of water could be discharged from the cá'nal during the season of navigation than had been discharged since the construction of the new waste-wier, without impairing the due navigation of the Erie canal.
    The motion was for a mandamus commanding the commissioners to reduce the waste-wier to the height stipulated in the lease; or, if the commissioners should be of opinion that the interests of navigation required that no water should be spared, then that they pay damages to the relator as for a total resumption of the surplus.
    
      R. B. Miller, the relator, in person.
    
      E. F. Smith, contra.
   By the Court,

Cowen, J.

It cannot be necessary that I should follow counsel in examining the powers of the canal commissioners to make the lease in question, or the power of the canal board to declare it void; for, on looking more closely into its provisoes and reservations than I was enabled to do upon the argument, I entertain no doubt that the canal commissioners have don'e no more, in reducing the height of the water, than the terms of the lease warranted.

Take this to be a valid instrument; it amounts to the demise of the surplus water which should be wasted at a prescribed height of the wier, with the proviso that the water should not be so used as to interfere prejudicially with the navigation; and reserving the right to the state at any time when the commissioners should think it necessary, wholly to resume the subject of the demise without being liable to pay damages or make compensation.. Here is the demise of a definite subject—a privilege to be derived from the water of a waste-wier of three. feet ten inches—and they have resumed the water by raising the wier to four feet or more. It seemed to be supposed on the argument that the clause, if valid, would warrant nothing short of a total resumption; but whether it should bé total of partial lay in the election of the state. It would be singular reasoning to say, that because the state have reserved the whole dominion, they shall not be entitled to exercise it in part, In one sense, however, the 1'e.sumption may be considered as total. The thing demised was a privilege based on a height of three feet ten inches during navigation, and less during winter. By the act of the commissioners in raising the height to the top line of the canal, the specific subject is withdrawn. It is enough, however, that it does not lie with the lessee or her assignee to object that the lessors have not done all which they reserved the right to do. It was for the benefit of the relator they did not do more. -At least he has not shown how it could work him any prejudice; and we must intend that the moderation of the state was for his benefit, till the contrary be shown. He seems to suppose a total resumption necessary, in order to raise a claim against the state for indemnity. I will consider the force of this argument under that branch of the motion which insists that the commissioners shall, if their opinion be in favor of total resumption, pay damages as if it had actually been effected.

It was thrown out that such an absolute power of revocation as. is claimed here and as I have felt bound to allow, was repugnant to the terms of the lease, and therefore void. Had this been a demise of land, there could be no doubt of the landlord’s right to limit the interest even by his own absolute will, and there is nothing in the nature of an easement which 'takes from the man who grants it, a power to impose the like limitation. The .almost universal rule is, that the owner of property may part with it, subject to such restrictions and reservations as he may think proper to impose. This doctrine will also be further considered in connection' with the relator’s claim for compensation.

No formal expression of opinion by the commissioners was necessary that the water could no longer be spared consistently with the interests of navigation. Such appears to be the fact; and the commissioners have made the requisite alteration. We must intend that they did their duty, especially so long as there is nothing appearing to the contrary. It would be a forced, not to say an impossible inference, that they acted contrary to their opinion. Whatever the fact may be, that opinion is made the test. There can be no legal objection that it was formed arbitrarily.

It is supposed that the relator is entitled to damages at least; but. on what ground I have been unable to perceive. Here is a lease, subject in express terms to a total nullification by the opinion of the lessors’ agents without the lessors being subject to damages or liable to make compensation. There is nothing in the deed itself calling for damages; but the express contrary. It goes even farther than was necessary; for the mere provision to resume, would, by its own sense, have cut off all claim to compensation. One may learn this, I should suppose, if authority were necessary, from any book which treats on the construction of contracts. Quod sub certa forma concessum vel reservatum est, non trahitur ad valorem vel com.pensationem. (Bac. Max. Reg. 4.) Bacon adds: “ The law permitteth every man to part with his own interest, and to qualify his own grant as it pleaseth himself; and therefore doth not admit any allowance or recompense, if the thing be not taken as it is granted.” Speaking of a right of common, he says it may be so framed that the grantor may avoid it altogether, or qualify it, or indeed prevent its taking effect at all. He says “he shall make void his own grant, rather than the certain form of it should be wrested to an equity or valuation.” In the case at bar, the state has done more than to insert a naked reservation. That alone would cut off all claim to compensation. Who ever heard of a suit for damages because a landlord at will entered 1 But to avoid all possible misconstruction, the commissioners inserted a clause of express stipulation against compensation. The building progressed while the lessee’s eyes were entirely open. The commissioners entered in behalf of. the state and qualified the grant so early as 1832; and nothing has been done, that I see, since that time, to raise a color for claiming compensation. The waste-wier has been kept up; and it does not appear that rent has since been claimed or accepted by the state, though-it has in one instance been tendered.

It is supposed, however, that the statute, (Sess. L. 1838, p. 282, ch. 289,) contains a direction to pay damages. I think not. That statute indeed declares, that the canal commissioners are authorized to settle with all persons claiming damage on account of leased surplus water being resumed in whole or in part; and to pay the amount to be agreed upon out of the canal fund. But the statute creates no new right. It must have pre-supposed cases of legal or equitable claim; not a case where the lessee stipulated to use the water in subordination to ’ the claims of the canal, and, to enforce such use, stipulated farther, that the state might on the opinion of its agents, at any time revoke or modify the privilege without being -liable to respond in damages. A right to damages under such, circumstances, if it exist at all, is but jus precarium ; not jus legitimwm. It may be conceded that the legislature can allow the former, or they may, if you please, depute the power of allowing it to. the canal commissioners; but there is nothing in it which we can recognize. It is still, as the books say, a mere right in curtesy, for which there is no remedy at all.” If the state or commissioners may settle a claim based upon such a right, yet, whether they will do so, depends upon arbitrary discretion, which is never controllable by mandamus.

Motion denied.  