
    Thomas L. Taylor et al., Respondents, v. State of New York, Appellant.
    (Claim No. 28330.)
   — This is an appeal from a judgment of the Court of Claims awarding $950 damages to claimants for flooding claimants’ lands fronting on Oneida Lake in the year 1945. The State conceded that claimants’ lands were flooded during the year 1945 to their damage of $950 “ by reason of the construction and maintenance of the Barge Canal facilities ”. The State asserts, as its sole defense, that during the period from 1914 to 1936 it acquired a prescriptive right to maintain Caughdenoy Dam at its 1945 level and the prescriptive right to flood claimants’ lands. Under the facts in this case such a right must depend upon the actual flooding of claimants’ lands. The evidence presented fails to establish such flooding with sufficient continuity or regularity or with sufficient definiteness as to extent, to permit the acquisition by the State of any permanent prescriptive right. Subsequently to the alleged prescriptive period in the years 1936, 1940 and 1943, claimants have had judgments in the Court of Claims for damages resulting from flooding the same lands. The final judgment of a court of competent jurisdiction that the State was legally liable for flooding in those years is res judicata that the State had acquired no legal right to flood claimants’ lands. The judgment should be affirmed, with costs. Judgment unanimously affirmed, with costs to respondents. Present — Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ. [See post, p. 825.]  