
    William B. Sayre, App’lt, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed, October 7, 1890.)
    
    1. Board of claims—Insufficient award.
    Through the careless and unskillful building of a feeder to the Che-mung canal through coarse gravel, thirty feet higher than the canal where it passed through the land of claimant’s father, the water leaked through and flooded forty-five acres of said land, rendering it wholly useless from 1833 to 1870. Claimant became the owner of the land in 1846. In 1849 one and a half acres were taken by the Chemung railroad and the damages assessed and paid. In 1870 the state .drained the land, but left embankments "which cost claimant $500 to remove, and put him to an expense for restoring the land. Claimant proved a loss of $8,375, but the Board of Claims allowed him but $3,000. Held, that the award was insufficient under the evidence given; that the claimant was entitled to the rental value of the land overflowed for twenty-four years; for the expense for removing the dirt thrown up by the state in making the draining ditches; for the expense in breaking up the land after it had been drained, but not on the reduction in the compensation from the railroad made through the land being submerged, as there was no adequate proof of such claim.
    2. Same—Modifying awabd.
    The court of appeals has jurisdiction upon an appeal from the hoard of claims to modify the award by increasing it to the amount of damages established by undisputed evidence.
    Appeal by plaintiff from judgment of the board of claims, awarding him $3,000.
    \ From May 17, 1830, to January 9, 1846, Matthew Sayre, the father of the claimant, owned certain land at Horseheads, Che-mung county, consisting of 138 acres. In or about the year 1832 the state constructed the Chemung canal through such land, and about the same time constructed near tó it a feeder for such canal -through coarse gravel, about thirty feet higher than the canal where it passes through such land. When the water was let into the feeder it leaked through the same and passed upon and covered to the depth of two feet about forty-five of the 138 acres of land. The land thus overflowed was, during all the time to the year 1870, rendered wholly useless. The leakage of water from the feeder was due to carelessness and unskillfulness in the construction and maintenance of the feeder. On the 9th day of January,1846, the claimant became the owner of such land, and has ever since ' owned and possessed the same. In the year 1849 the Chemung railroad was built through the overflowed land, and about one and a half acres thereof were taken therefor, and the damages for such taking were assessed according to law. In the fall of the year 1869 and the spring of 1870 the state caused ditches to be dug through the land which drained it and caused it to become dry and tillable. In the construction of such ditches the earth taken therefrom was placed on the edges thereof, and thus large embankments were formed which obstructed the flow of surface water, and the claimant was obliged from necessity to remove such earth at an expense of about $500. After the overflow of the water ceased in 1870, in consequence of the digging of the ditches, the claimant was obliged to expend, and did expend, a considerable sum of money to reclaim the land and get it in condition for farming purposes; and the land was not fully reclaimed until about two years after 1870.
    For the damages thus caused to him the claimant filed a claim against the state, in which the following items of damages were specified:
    Use of forty acres or thereabouts from 1846 to 1870, of which claimant was deprived, at' $6.50 pier acre . $6,240 00
    Deprivation of use of land for two years after completion of ditches.....................,....... 900 00
    Cost of restoring the land........................ 235 00
    Damage accruing from appraisal of the railroads, rendered less by reason of condition of land......... 500 00
    Expense of removing the earth on the banks of the
    state ditches................................. 500 00
    
      The claim was brought to a hearing before the board of claims, and two of the commissioners united in awarding the claimant $3,000 “by reason of the overflow of water upon his said land as aforesaid from the year 1846 to the year 1870.” The third commissioner dissented, and found an award of $8,593, made up of the following items:
    Loss of use of forty-four acres of land for twenty-six
    years at $6.50 per year........................ $7,336 00
    Damages to land taken by railroad................ 100 00
    Expenses of removing the earth taken out of the ditches and placed upon the sides thereof and of breaking up and restoring the land after the ditches
    had been dug................................ 650 00
    Interest on the last item thirteen years............. 507 00
    The claimant has brought this appeal from the award in his favor.
    
      Gabriel L. Smith, for app’lt; Ghas. F. Tabor, att’y-gen’l, for resp’t.
   Earl, J.

It is not claimed on the part of the state that any portion of the claimant’s damages is barred by the statute of limitations, and hence he was entitled to an award for all the damages he proved. He claims that injustice was done him in the amount awarded, and a careful examination of the case has lead us to the conclusion that his complaint is well grounded.

The jurisdiction of this court upon appeals from the board of claims is regulated by the act, chapter 507 of the Laws of 1887, which authorizes such appeals upon questions of law only arising 'upon the hearing of the claim, or upon the excess or insufficiency of such award or order, and provides that this court “ shall hear such appeal and affirm, reverse or modify such award or order, or dismiss such appeal, or award a new hearing before the board of claims, as justice may require.”

Under the act, chapter 205 of the Laws of 1883, the commissioners of the board of claims were required to view the lands claimed to be damaged, and they could be somewhat influenced by the ocular proof thus obtained. But, as we said in Perkins v. The State, 113 N.Y., 660: 23 N.Y. State Rep., 266, “ the fact that the commissioners are required to view the premises and to act to some extent upon their own judgment, informed by ocular evidence, does not deprive this court of the power to review their award upon the question of damages. They may adopt some erroneous rule of damages, and their findings may be such and the case upon all the evidence may be such as to show that they misconceived the facts and erred in their estimate.”

The facts of this case are such that the view of the premises by the commissioners could be of no service to them upon the question of damages, as all the damages claimed were caused more than ten years before the board of claims was constituted and more than twelve years before the trial of the claim'and the view of .the land by the commissioners. They could therefore get no information as to the nature or amount of the damages by a view of the land, and there was nothing for them to base their award on but the- evidence given upon the hearing. That was all given on the part of the claimant and was undisputed. It came from competent witnesses apparently reliable, and there was nothing to discredit them.

We will take separate notice of each item of damage claimed. (1). The claimant was deprived of the use of the land overflowed from 1846 to 1870, twenty-four years. It is undisputed that at least forty-four acres of the land were constantly overflowed and submerged with water during that time, and that the land was thereby rendered useless; and all the commissioners substantially so found. There is absolutely no evidence that the use of the land during the whole of that period would have been worth, but for the water, less than $6.50 per acre annually. The undisputed evidence justifies a higher estimate. The two commissioners who united in the award found that the use of the land annually per acre during the whole time from 1846 to 1870 was shown to be from $6.50 to $12, and yet they awarded only the sum of $3,000 for all the damages to the land. How this arbitrary amount, in the face of the undisputed evidence and the findings, was reached is not disclosed. The damages were $286 for each year, and for the whole twenty-four years amounted to $6,864. But after 1870 the land remained substantially useless for two years more before it could be rendered fit for cultivation, and hence $572 should be added to the damages fpr those years, and thus we have the sum of $7,436 for the damages on account of the loss of the use of the land for twenty-six years from 1846.

(2) . When the state dug the ditches in 1869 and 1870 to drain the land, it threw the earth from the same on to the sides thereof, and the claimant was obliged, as the proof shows, and as all the commissioners found, to expend in the removal of such earth the sum of $500. We can perceive no reason for the disallowance of this item. To protect itself from continuing liability, the state dug the ditches and left the earth therefrom in piles. It was necessary to remove this earth to restore the land to its normal condition, and the expense of such removal is an item of claimant’s damages, and it should have been allowed to him.

(3) . The claimant also claimed damages because he was obliged to take compensation from the railroad company for the land taken by it rendered much smaller than it otherwise would have been because the land was submerged and useless when taken. We find no adequate proof in the case for the allowance of this item.

(4) . The claimant also claims an allowance for the expenses to which he was subjected in breaking up and restoring the land after the ditches had been dug, and the land had thus been drained and rendered dry. We think this is manifestly a ¡Droper item of claim. The majority of the commissioners found that the claimant was required to expend, and did expend, a considerable sum of money to reclaim the land and get it in condition for farming purposes ” during the two years after 1870, and yet they allowed him nothing for such expenses.

The damage to the land caused by the water did not cease with the drainage of the land, but continued until the same was restored by expenditures made by the claimant. The state by its -carelessness had rendered the land useless, and the expense necessary to make it useful again must certainly be a proper item of damage to be allowed to the claimant. The precise amount of this expense was not proved and was not found. The claimant testified that it took a team with a plow and two men to break up from one-quarter to one-half acre of the land per day, and thus to break up the forty-four acres, allowing much for the exaggeration of an interested witness, must have cost at least $200.

(5). The last two items amount to $700, and the claimant claims that that sum was expended more than thirteen years before the award was made, and that, therefore, he should have interest on that sum for that time. These claims do not grow out of contract. The claimant’s causes of action are based upon the negligence of the state, and all his damages were caused by the flooding of his land. They are damages caused by a tort, and were in every sense unliquidated, and we can find no case justifying an allowance of interest in such a case. White v. Miller, 78 N. Y, 399; McMaster v. The State, 108 id., 542; 13 N. Y. State Rep., 674; Mansfield v. N. Y. C. & H. R. R. R. Co., 114 N. Y, 331; 23 N. Y. State Rep., 739 ; 24 id., 534.

Our conclusion, therefore, is that upon the undisputed evidence in this case the claimant should have been awarded at least the sum of $8,136; and we are asked to modify the award by increasing it to that sum. Have we authority under the statute to do this ? Our jurisdiction upon an appeal from the board of claims is confined to questions of law. It was error of law for the board to refuse to award the claimant the damages established by undisputed evidence, and actually found by them. Upon the facts as they appear in the record the claimant was entitled to at least the sum last named. There is no suspicion that the claim is not a just one. It has been prosecuted with great diligence for many years before the legislature, the canal appraisers and this board. It is time that the claimant should receive some measure of justice from this great state, and he should not be compelled to again resume his weary round as a suitor in her tribunals. The statutes clothe' us with authority to “ modify ” an award, and that must mean that we may for any legal error increase or diminish the award as justice may require.

Our conclusion, therefore, is that the award should be modified by increasing the same to $8,136, and, as thus modified, affirmed, with costs.

All concur, except Bug-er, Ch. J., and O’Brien, d., not voting.  