
    In the Matter of the Application and Petition of Charles Strauss and Others, Constituting the Board of Water Supply of the City of New York, to Acquire a Perpetual Underground Easement, etc., for the Construction of a Pipe Line, etc. Addition to City Aqueduct Department, Section No. 1. City of New York and the Board of Water Supply of the City of New York, Appellants; Staten Island Rapid Transit Railway Company and New York Transit and Terminal Company, Ltd., Respondents.
    Second Department,
    April 23, 1915.
    Municipal corporations—eminent domain — condemnation of lands for additional water supply, city of New York — change in plans of local improvement — resubmission to State Water Supply Commission not essential — statutes construed.
    The statute creating the State Water Supply Commission and that providing for a supply of water to the city of New York, being contemporaneous acts, must be read together. The City Water Supply Act provides for two sets of maps, one for the State Commission and another more detailed for the Board of Estimate and Apportionment. After satisfying the requirements of the State Commission Act by reports showing the municipal needs in respect to a water supply, maps must be presented to said Commission showing the territory where the water is to be impounded, etc. This proceeding before the State Commission relates to the sources of the municipal supply, as distinguished from the event- ■ ual distribution of the water within the municipality.
    Where the State Water Supply Commission has approved plans relating to an additional water supply for the city of New York showing the general lines of construction, the board of estimate and apportionment of the city is to consider detailed plans relating to the construction of the water system within the municipality, and after approval is to transmit them to the corporation counsel to make application for the appointment of commissioners of appraisal in condemnation proceedings; no further submission as to local matters need be submitted to the State Commission.
    Hence, where through necessities of construction the plans relating to the introduction of the water to the city of New York have been changed by relocating the conduits, an application for the appointment of commissioners of appraisal should not be denied upon the ground that the matter has not been resubmitted for approval to the State Commission.
    The appointment of said appraisers should not be denied because the petitioner has not alleged or shown that it has been unable to agree with railroad companies as to their compensation for loss, as provided in section 13 of chapter 734 of the Laws of 1905 relating to the consequential damages to local railroad companies through interference with their traffic, if the lands to be taken are no part of railroad rights of way and are not appurtenant thereto.
    Appeal by the City of New York and another from an order of the Supreme Court, made at the Kings County Special Term and' entered in the office of the clerk of the county of Richmond on the 7th day of January, 1915, denying their application for the appointment of commissioners of appraisal herein.
    The city of New York by its board of water supply in 1905 had prepared a map and profile of its Catskill aqueduct system extending from various reservoirs as proposed in the counties of Ulster, Sullivan, G-reene and Schoharie, and leading under the Hudson river to the city of New York, whence beneath the East river it entered the borough of Brooklyn and finally passed under the Narrows at Bay Ridge to Staten Island. On May 14, 1906, the map and this aqueduct plan received the official approval of the State Water Supply Commission. It was thereafter formally accepted by the city board of estimate and apportionment.
    Subsequently in 1912 the city, without resorting to condemnation, acquired an easement of approach at Staten Island extending inland from the pierhead line to lead a submerged water pipe to form a connection with the system of Richmond water mains. Before construction had reached this submarine line the fee of this water-front land, subject to this easement, was acquired by the adjoining dock company, on which, under a city permit, the dock company has erected a stone crib, pile platforms, with a spur track, all located close to the situs of this water-pipe easement.
    The plans for crossing New York harbor involve a submarine excavation by dredging out a trench in which is to be laid a flexible water pipe with caulked joints, after which the trench is to be filled and covered over.
    In approaching the shore the excavation was to be at a depth of over twenty feet. The added risk of such deep excavation so near this crib work and other recent structures led the engineers of the hoard of water supply to shift the location of the trench about fifty feet further away from this crib. This involved a new plan and an amended condemnation map of the land to be taken, showing also the temporary easements sought in connection therewith.
    This map, having been approved by the board of estimate and apportionment and certified to the corporation counsel, was made the basis of a condemnation proceeding. The Staten Island Rapid Transit Company and the New York Transit and Terminal Company, as interested in this shore front, appeared and objected to the appointment of commissioners of appraisal. After hearing and taking testimony, the court at Special Term denied the city’s application.
    The city of New York, and the board of water supply of the city of New York on behalf of the city of New York, have appealed therefrom to this court.
    
      Charles J. Nehrbas [Terence Farley, Henry W. Mayo and Frank L. Polk with him on the brief], for the appellants.
    
      Marvin W. Wynne [Nicholas Kelley with him on the brief], for the respondents.
   Putnam, J.:

The learned court at Special Term sustained the objection by the defending owners that the condemnation map of this particular water front had not been submitted for approval to the State Water Supply Commission.

The creation of the State Water Supply Commission (Laws of 1905, chap. 723), and that for the New York city water supply (Laws of 1905, chap. 724), as contemporaneous acts, are to be read together. (Matter of Board of Water Supply, 211 N. Y. 174, 181.) In connection with granting such right to municipalities, the State created a central commission to regulate taking interior sources of water supply. Municipal applications for leave to take such new or additional sources are to be accompanied by an exhibit of maps of the lands to be acquired and profiles thereof showing the sites and areas of the proposed reservoirs and other works, the profiles of the aqueduct lines and the flow lines of the water when impounded, plans and surveys and abstract of official reports relating to the same, showing the need of such municipal corporation for a particular source or sources of supply and the reasons therefor, and shall be accompanied by a plan or scheme to determine and provide for the payment of the proper compensation for any and all damages to persons or property, whether direct or indirect, which will result from the acquiring of said lands and the execution of said plans.” (Laws of 1905, chap. 723, § 3.)

After public hearing this State Commission was to determine if the plans “are justified by public necessity, and whether such plans are just and equitable to the other municipalities and civil divisions of the State affected thereby and to the inhabitants thereof;” also if they make “fair and equitable provisions for the determination and payment of any and all ” resulting damages (§ 3).

The City Water Supply Act had a final clause that, before such taking, the “maps and plans covering the work contemplated by this act ” should be approved by the State Water Supply Commission. (Laws of 1905, chap. 724, § 46.) Plainly this local act did not thereby add to the requirements for such applications to the State Commission already laid down in the preceding chapter. The “maps and plans covering the work ” meant the exhibit of maps and profiles already prescribed by section 3 of the State Water Supply Commission Act.

The City Water Supply Act provides for two sets of maps and plans, one for the State, and a more detailed set for the board of estimate and apportionment. After satisfying the requirements of the State Water Supply Commission Act by reports showing municipal needs, it is to present to the State Water Supply Commission maps showing territory where the water is to be impounded in a reservoir; the site of the works proposed, also as the water leaves the reservoir; the aqueduct lines and the flow lines. Obviously these all relate to the sources, as distinguished from the eventual distribution within the different wards or divisions of the municipality.

The record here shows that the plan and layout of this water supply system approved by the State Water Supply Commission, indicated two parallel lines running under New York bay from Bay Ridge to Staten Island, where presumably these aqueduct branches were to feed into the system of Richmond local water mains.

The State Commission, as judges of the sufficiency of the maps and plans exhibited, doubtless might have demanded more detailed plans, or that this aqueduct be projected on a different scale, but its unqualified approval determined the adequacy of the plan, as covering the work contemplated for the purposes of these statutes.

But besides these maps and plans for the State authorities, the board of estimate and apportionment is to consider plans and surveys under section 3 of the City Water Supply Act, which are to be followed by detailed maps, in sets of six, on which are to be “ laid out and numbered the various parcels of real estate on, over or through which the same are to be constructed and maintained ” (§ 5).

When the city board of water supply have had these maps adopted by the board of estimate and apportionment, they are to transmit them so certified to the corporation counsel, who then is to give the usual notice (§ 7) and to make application for the appointment of commissioners of appraisal. This excludes any idea that after the board of estimate and apportionment has acted, these acquisition maps are to be further submitted to the State Commission. Such submission of condemnation maps to the State Water Supply Commission has not been had in the course of official procedure hitherto in the many condemnations taken under this act. Practical official construction and statutory interpretation are, therefore, in accord with considerations of practical efficiency, in the conclusion that such submission is not required after the general plan, maps and profiles have been approved by the State Water Supply Commission.

It was, however, urged that under Laws of 1905, chapter '724, section 13, this petitioner must allege and show that it had been unable to agree with the railroad company upon its compensation for its loss.

The language here is permissive rather than mandatory. It relates to “loss, darriage or expense, direct or consequential,” resulting to a steam railroad in any county in which land shall be acquired. This refers to losses beyond the land condemned, being any resulting interference with the railroad traffic. This provision for such indirect damages to a steam railroad came in by an amendment to section 13, introduced in the Assembly on March 29, 1905. (Assembly Journal, p. 1629.) Its purpose seems to have been to protect the interests of the Ulster and Delaware Railroad Company, whose tracks and stations had to be relocated. It was further provided that if no agreement should be reached, the commissioners of appraisal appointed to estimate damages for lands acquired in such county ” are directed to pass upon such claim and to make awards therefor as provided in this act.” (See Laws, of 1906, chap. 314, §3.) The amended provisions of section 13, therefore, have no relation to this defending railroad since the water-front lands to be now taken are neither part of its right of way nor appurtenant thereto. Defendants’ other objections were rightly rejected by the learned justice at Special Term.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for the appointment of commissioners of appraisal granted.

Jenks, P. J., Carr and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Motion for appointment of commissioners of appraisal granted, and proceeding remitted to the Special Term for entry of an order, upon two days’ notice to the respondents, appointing said commissioners in accordance with opinion.  