
    Heacock and ano., App’lts, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Canal—Injuries by negligent work in improvement of—Claim for when barred—Laws 1870, chap. 321.
    Previous to 1870, except in special cases, there was no provision for occasional and temporary damages flowing from the negligence of the canal officers, or needless injuries resulting from the manner of their work, and which should have been prevented, and a claim for injuries caused in the enlargement of the canal by raising its banks, building them of loose earth, not puddled or made tight, so that leakage resulted, is brought under chapter 321 of that year, and is not barred because not brought within one year, as required by the Revised Statutes, which refer to another class of cases.
    2. Same—Coffer dams—Laws 1830, chap. 293.
    Where the state uses coffer dams in the process of deepening a river, and suffers the structure in midstream to remain, although removing the ends, so that they assume the character of an island, they are merely temporary obstructions, and in no just sense a dam, and claim for injuries caused thereby was improperly rejected by the board of claims, on the ground that they were dams within the act of 1830, and that the claim was provable before the appraisers under that act, and because not so presented, lost, if not extinguished.
    Appeal from board of claims.
    
      D. O'Brien, att’y-gen., for resp’t; O. L. Stone, for app’lts.
   Finch, J.

In all our reviews of canal legislation, we have invariably recognized the broad distinction between the claims referred to and provided for in the Revised Statutes (part 1, tit. 9, chapter 9, §§ 46, 48) and those covered by the act of 1870 (chapter 321). The former related to a permanent appropriation to the use of the state in the process of construction or improvement, and which would presumably continue while the canal existed. The latter embraced injuries resulting from the canals, or their‘use or management, or the negligence of the officers in charge. Mark v. State, 97 N. Y., 572; People v. Thayer, 63 id., 350. These are mainly temporary injuries, and may, for convenience, be described as such, although it is possible that there may be included among them some injuries of a permanent character, which had not been covered and provided for by the previous legislation. The act was intended to supplement and extend the existing jurisdiction by adding authority over new cases for which no remedy had been earlier enacted. Under the Revised Statutes, it was provided that the state should take a fee, and, unless the land-owner applied for compensation within one year, his light should be deemed extinguished. Under the act of 1870, no land is taken or appropriated, and the title and the right remain in the owner, and an injury to that right and damages resulting are all that are contemplated. In the one case there was jurisdiction in the canal appraisers to hear the claim; in the other, they had no such jurisdiction until 1870. The Revised Statutes did provide for one class, and one only, of temporary injuries. Section 58. Where lands had been occupied by the canal commissioners for a temporary purpose, or to take therefrom material for repairs, the damages were to be adjusted by arbitration, and no limitation was prescribed, since, if the claimant failed to name an arbi: trator, the county judge was authorized to name one in his behalf. But in 1830 an act was passed, evidently intended to reach a case not contemplated by either provision of - the Revised Statutes.

The canal commissioners were originally the officers charged with the construction of the canals, and with any extraordinary repairs or improvements on any completed canal, and for these two purposes, and these only, they were authorized to take lands, streams and waters, and build dams and aqueducts, and construct feeders. Rev. Stat., supra, §§ 16, 17. These were permanent purposes, and. contemplated works essential to the construction, improvement and maintenance of the water-way, and such as would become necessary and integral parts of the canal system, and so required an ownership in fee. For such acquisitions a mode of compensation existed. But there were cases where, by reason of permanent dams, necessary to the operation of feeders, lands had been subjected to overflow which the state had not taken or appropriated, wdiere.itneither needed nor asserted a title in fee, but where .it took only an easement in the land of the owner in the form of a right to set the water back upon him as a consequence of the constructed dam. For such cases, prior to 1830, there was no rémedy provided, unless by insisting that the state should and did take a fee when only an easement was required. The overflow could not be deemed a temporary occupation of land to be adjusted by arbitration, for it was permanent and continuous, essential to the operation of the feeder and the supply of the canals, and, if the fee was not taken, the appraisers had no jurisdiction. To meet such cases the act of 1830 was passed. Chapter 293. It authorized an appraisal “when any lands are overflowed by the erection of any dam by the canal commissioners on any river or stream connected with the public works.” As we have seen, the authority of these officers in taking waters was for the permanent use and supply of the canals, so that the dam and overflow referred to were those of a permanent and continuous character. The damages sustained by the land-owner were to be appraised, and the injury contemplated was one to the reality. Since the dam and the overflow were thus continuous and permanent, the mode of appraisal for the easement taken was made the same as where the fee was taken (section 2), but the only limitation expressly provided was as to lands which had previously been overflowed (section 3). The reference of section 2 to the then existing laws is very general in its terms, and both the appraisers and the board of claims have held that the clause of the Revised Statutes which extinguishes claims not filed within the prescribed period of limitation is by that reference imported into the act of 1830. We do not consider that, nor the effect upon the clause of the latter act of 1866, but, if the view be correct, it shows yet more clearly that the act of 1830 referred to a permanent easement, so taken that the right to it could be extinguished, and bar a claim of future trespasses. Even a temporary taking of waters, and a temporary flooding of land in order to supply an occasional deficiency of water in the canals, was not deemed within the purview of the act of 1830, for three years later it was provided that such damages should be settled by arbitration, as in case of the temporary occupation of land. Laws 1833, chap. 196. And thus we obtain a view of the general scheme intended by the legislature. For a permanent taking either of a fee or an easement either in lands or waters, the appraisers had jurisdiction to settle the damages; and for temporary occupation of lands or waters, to provide for repairs or incidental deficiencies, the remedy was by the statute arbitration. This view is in accord with an early decision of this court. People v. Schoonmaker, 13 N. Y., 238.

But in all this there was plainly no provision for occasional and temporary damages flowing from the-negligence of the canal officers, or needless injuries resulting from the manner of their work, and which should have been prevented. Numerous special acts were passed to meet such supposed omissions. Land overflowed by reason of the embankment across the Montezuma marshes was neither taken nor appropriated, and neither permanently nor temporarily, but the damages involved the sufficiency of the water-way under the aqueduct, and so were specially provided for. Laws 1862, chap. 310. In like manner, claims were ordered heard arising from the overflow of the Champlain canal (Laws 1862, >chap. 262), from flooding by Oil creek reservoir (Laws 1862, chap. 257), from wastewiers and the Erie canal (Laws 1862. chap 377), from damming up by obstruction of culvert (Laws 1862, chap 259), from neglect in construction of Oswego canal enlargement (Laws 1864, chap. 480), and from overflow as a consequence of that construction (Laws 1864, chap. 580) These special acts imply that no remedy existed under the general laws in force, and they were followed by the act of 1870, which ended the special legislation by providing for all such cases. Until that act was passed, neither the Revised Statutes, nor the law of 1836, gave to the canal appraisers jurisdiction over injuries resulting from neglect, or which were temporary and occasional in their character, and involved no permanent or continuous damage.

The claim of the present plaintiffs is of the latter character, and the board of claims erred in determining that it might have been presented under the act of 1830, and was barred and lost by reason of that omission. The claimants owned salt works lying along the Liverpool levee of the Oswego canal. That levee runs nearly parallel with the east shore of Onondaga lake, the waters of which, through a northern outlet, discharge into the Oswego river, which empties into Lake Ontario. That river is further fed by the Oneida river on the east, and the Seneca river on the west, which latter carries the waters of the Cayuga and Seneca lakes and of the Clyde river, and_ passing around a sharp curve, over Jack’s reefs, forms a juncture with the Oswego river as a final outlet. The claimants allege three sources of injury—First, an insufficient culvert to carry under the canal the waters of Beartrap and Mud creeks; second, obstructions placed in the Oswego river at Gaskin’s reefs and at Phenix, and the lowering of Jack’s reefs; and, third, raising the water of the canal without retaining it within suitable banks, so that it soaked through and destroyed the claimants’ salt works.

As to the first and third of these claims, there can be no reasonable pretense that a remedy existed before the act of 1870, and we do not understand that they were rejected for any such reason. In so far as the determination of the first rests purely upon a question of fact, and upon some evidence, the result is riot subject to our review, and the merits of the claim in these respects may be left to the final adjudication to be made.

The third cause of injury was "quite strongly proved. In the process of the canal enlargement, its depth was increased by raising its banks, and correspondingly the level of its water; but the banks were built of loose earth, and not puddled or made tight, as is usually and may easily be done, so that leakage resulted, occasioning injury. On the face of it this was a negligent act. The object of a canal is to hold and retain water for the purpose of navigation, and banks which permit it to escape both waste the water supplied and injure the adjoining owners. The answer made to this element of the claim is neither a denial of the facts, nor an assertion that it does not amount to negligence. If it was a question between individuals, and the canal had been built by a private corporation, the percolation resulting from leaking and illy-constructed banks would easily be deemed negligence, and to such a standard the act of 1870 itself appeals. This cause of injury seems to have been rejected solely because not sufficiently pleaded. We are not satisfied with that answer. These proceedings have always been quite informal, and no rigid or technical rules of pleading have been established. The criticism is that negligence in constructing the bank was not explicitly and in terms alleged. But no such objection was taken on the hearing, so far as we are able to ascertain; until the evidence had all been admitted; and, while we do not think the state was at all misled, the pleading should be deemed amended, or may be on the new hearing, which must be ordered.

There remains the second asserted ground of liability, that the state obstructed the Oswego river, and, by lessening the natural drainage to the north, and increasing the water supply by lowering Jack’s reefs, raised the level of the Onondaga lake, and flooded the claimants’ land. The proof showed that, during the process of enlarging the Oswego canal, the state erected two coffer-dams to exclude the water temporarily while sinking the bed of the river. These ran lengthwise of the river for quite a distance, utilizing two islands lying in the stream, and while the improvement was going on were closed at each end, the river hereby running in a narrowed channel. When the work was done, the ends or wings running to the bank were removed, but the structure in mid-stream was suffered to remain, assuming the character of an island. The board of claims held these to be dams within the meaning of the act of 1830, and the claim to be provable as a cause of damages before the appraisers under that act, and, 'because not so presented, lost, if not extinguished. The question was not determined upon the merits. If we have correctly-interpreted the act of 1830, it had nothing to do with such a temporary and occasional structure as is denominated a “coffer-dam.” Those here complained of did not extend across the river, and were merely temporary obstructions. They remained only till the work was done, and then existed as an island, and in no just sense a dam. Their consequences were brief, while serving as a coffer-dam, and involved no permanent easement necessary to be acquired by the state. It was, therefore, error to reject the claim for the reasons assigned, and the case must go back for a rehearing.

Nothing that we have said must be construed into an opinion on the merits or as to the ultimate results. The facts are to be considered unaffected by any supposed judgment of ours as to their force or weight. We have sought to pass only upon the questions of law involved.

The judgment should be reversed, and a new hearing ordered.

All concur.  