
    Silsby Manufacturing Company, App’lt, v. State of New York, Resp’t,
    
      (Court of Appeals,
    
    
      Filed March 1, 1887.)
    
    1. Canals—Rights acquired under Laws 1813, chap. 144.
    The Seneca Lock Navigation Company was incorporated by Laws of 1813, chapter 144, and after a grant to the company of certain powers, it was provided by the act that “whenever the navigation shall be completed, any owner or occupant of any land adjoining the said outlet may use the water for mills or other hydraulic works.” “Provided, that nothing in this act shall authorize the said corporation to use any of the waters of said outlet for any other purposes than for the navigation aforesaid.” Held, that the meaning of the statute was that the company should not use any of the waters for any other purpose than for navigation, and only as much as should bo necessary for that purpose.
    2. Same—Laws 1825, chap. 271—Rights of state under.
    Laws of 1825, chapter 271, authorized the construction of the Cayuga and Seneca canal, and contained a proviso that the canal cornmismissioners should not proceed with their duties under the act until the state should be invested with the right and title to the stock, property and privileges of the Seneca Lock Navigation Company, and also provided for the acquisition of such property. Held, that under this act the state succeeded only to the rights of .the company named. That the state had a right to all those waters for no other purp'ose than that of navigation, and only so much as should at all times be necessary for such purpose.
    3. Same—Action for damages by riparian owner—Water necessary FOR PURPOSES OF NAVIGATION—STATE NOT SOLE JUDGE OF QUANTITY.
    In an action by a riparian owner for damages for a decrease of his water supply by waste and leakage in the locks, etc.: Held, that the acts of the agents of the state in the use of the water would be entitled to a quite liberal construction, but that there was no principle to support the doctrine that the state was the sole judge of the amount of water necessary for the purposes of navigation and of what should be taken.
    4. Same—Laws 1870, chap. 321—Laws 1883, chap. 205, § 13—Liability of STATE UNDER.
    Provision is made by Laws 1871, chapter 321 for a recovery by any individual of damages sustained by him from the canals of the state, or their use and management, provided the facts and circumstances are such as would create a legal liability on the part of an individual or corporation, if in the position occupied by the state. Jurisdiction to hear such claim was conferred upon the canal appraisers, and by Laws 1883, chapter 205, section 13, transferred to the board of claims. Held, that the object in view was not the exemption of the state from liability, but the protection of the citizen, and that the state intended to assume the same measure of liability with reference to the management of the canals as that incurred by, individuals and corporations engaged in similar enterprises.
    5. Same—Actions for damages—Should include what—No bar to FUTURE ACTION FOR DAMAGES.
    Held, that if facts upon which to base an action were found, it would appear that there had been an unlawful diversión of water by the stale, and that the continuance of such use each day furnished a new cause of action; that while, when an action was commenced, all then existing claims should be included, yet a recovery of damages up to the time of the commencement of the action, would be no bar to those subsequently arising.
    Appeal by the claimant from an award made by the state board of claims, disallowing a claim against the state for injury to a water power by the wasting by the state of the waters of the Cayuga and Seneca canal. The facts are sufficiently stated in the opinion.
    
      Theodore Baron and James Harmon, for app’lt; D. O'Brien, att’y gen., for resp’t.
   Peckham, J.

The claimant, a manufacturing corporation located at Seneca Falls, filed its claim against the defendant in substance alleging itself to be a riparian owner of land adjoining the Seneca River, on an island therein, known as Dey’s Island, and upon which it had erected valuable buildings; and that it was the owner of valuable water power and hydraulic rights, by means of a water way called Dey’s Race, and that it employed this water power as a motor to propel its machinery in its buildings.

It was further alleged that the state maintained and operated a canal known as the Cayuga and Seneca Canal, which ran through the village of Seneca Falls, and the canal was divided into various levels by means of locks, for the purpose of facilitating the passage of boats, etc.; that the state had built a wall, of the proper height to protect navigation, and.that when the locks, gates, levels and walls were in proper condition, by being tight and secure, the surplus water coming into the upper level spilled over this wall and over a dam, and a portion thereof passed- over a lower dam into Dey’s race, and became available to claimant as a motor to prqpel its machinery; that in the years 1882, 1883 and 1884, the walls, locks, gates, levels, etc., ■were not kept by the state in a proper and tight condition to prevent leakage and wastage, and that large quantities of water wasted through these locks, gates and levels, and were diverted from Dey’s Race, and the claimant was thereby compelled to use steam instead of the water which otherwise would have flowed through Dey’s Race, and would have been used by it. Damages to the extent of §3,500 per year for these years were claimed.

On the trial evidence was given tending to prove the facts above set forth; and the state in answer made the claimt hat it was entitled to the use of all the waters, and that the claimant was only entitled to the use of such surplus as the state chose to give. ■ What the rights of the parties are is the question in contention in this case.

The claimant proved itself to be a riparian owner, and entitled to the use of the waters in Seneca river, as such riparian owner, in their natural flow, without any inter-0 ference from the state except in so far as its rights had been legally altered by the action of the state. Chenango Bridge Co. v. Paige, 83 N. Y., 178; Smith v. Rochester, 92 id., 463.

The right of the state to use the waters of Seneca river for canal purposes arises from two acts of the legislature, and action taken under them.

The first act (chap. 144, Laws 1813), incorporated the Seneca Lock Navigation Company for the purpose of improving the navigation- between the Seneca and Cayuga lakes. Power was given the corporation to take lands, goods, chattels and effects, not exceeding $10,000 in value, and any land for the purposes of navigation.

The ninth section provided that: “Whenever the navigation shall be completed, any owner or occupant of any land adjoining the said outlet may use the waters for mills or other hydraulic works; but such use shall at no time impede the passage of boats or other water craft or articles, or injure or affect the navigation or canals, locks or dams or appurtenances belonging to the said corporation: Provided that nothing in this act shall authorize the said corporation to use any of the waters of said outlet for any other purposes than for the navigation aforesaid.”

Power is also given by the next section to the owners of mills to make cuts to conduct the water to their mills, so, however, as not to impede the navigation or “prevent the company from the use of as much water as at all times shall be necessary for the purposes of said navigation.”

We think the meaning of this statute, taking the two provisions together, is that the company shall not use any of the waters for any other purposes than for navigation, and only so much as shall be necessary for those purposes.

Stock was issued and the company went on and built its locks and constructed its works under this act.

In 1825 (chap. 271), an act was passed authorizing the construction of the Cayuga and Seneca canal, the first section of which contained the proviso that the canal commissioners should not proceed in their duties under the act until the state should be invested with the right and title to the stock, property and privileges of the Seneca Lock Navigation Company. Provision was made for the acquiring such property, to wit: "“The lands, waters, canals* claimed by the said company for the purpose of navigation locks, feeders and appurtenances thereto appertaining and ■under its act of incorporation,” etc.

Upon payment as provided for in the act the state was to-“be invested with all the stock, property and privileges belonging or appertaining to the said Seneca Lock Navigation. Company.” This title and this only the state did subsequently secure.

The board of claims found that the superintendent of public works has the entire control and management of all the canals, including the one in question, and that the amount of water to be used by the state is entirely a matter of discretion with him; that he might use all the water if he deemed it necessary.

It was also found by the board that if the locks, gates, walls, etc., should be changed by the State more water might be saved, and the quantity of surplus water, over and above that necessary in the discretion of the superintendent for the use of the canals, increased, and in that event the claimant herein would be entitled to its proportion of increase.

As conclusions of law the board found that the state owed no duty to the claimant herein in the increase of surplus water, and that the board had no power to review the discretion of the superintendent of public works in the amount of water he shall use in the management of the canal. The claim was therefore dismissed. Proper exceptions were filed to the findings of fact and conclusions of law. The board was requested to find as a fact what seems to have been established by uncontradicted evidence, viz.: that if the locks, gates, etc., had been in such condition as not to leak, there would have been a saving of 5,250 cubic feet per minute, which but for such diversion would have passed into the race, and which was above the amount necessary for navigation. That the amount thus escaping, and some portion of which would have reached the flume of claimant, would produce fifty-five horse power, which cost claimant $3,000 per annum. The board refused to find these facts, and upon the finding of the board as made by it all these facts were immaterial and a refusal to find them entirely proper.

By chapter 321 of the Laws of 1810, the state provided for a recovery of damages sustained by any individual from the canals of the state and from their use and management, provided the facts proved made out a case which would create a legal liability .against the state were the same established in evidence in a court of justice against an individual or corporation, and jurisdiction to hear sucli claim was conferred upon the canal appraisers, and that jurisdiction was transferred to the board of claims by the act, chapter 205 of the Laws of 1883, section 13.

In relation to this act, assuming liability on the part of the state, this court has said, per Ruger, Oh. J., in Sipple v. State (99 Ñ. Y., 284, at 288): “The object in view was the protection of the citizen, and not the exemption from liability of the state; and it is quite evident that the state thereby intended to assume, with reference to the management of the canal, the same measure of liability incurred by individuals and corporations engaged in similar enterprises, and to afford to parties injured the same redress which they would have against individuals and corporations for similar injuries.”

Judged upon this measure of liability and by this stand- • ard, we cannot doubt that the board of claims erred in their construction of the relative rights of the parties to this controversy.

The state had a right to all these waters for no other purpose than that of navigation, and only so much as should at all times be necessary for such purpose. We do not see upon what principle it can be said that the state was to be the sole judge of that necessity and of the amount to be taken. It succeeded only to the rights of the lock company, and it has not since acquired any other or different rights. If it desired more it could easily acquire more by the exercise of its right of eminent domain, but so far its rights must be decided as they exist in its character as successor to the rights of the lock company.

We do not believe that it would ever have been contended that the company was the sole judge of the amount neces- • • sary for the purposes of navigation.

Undoubtedly the acts of the agents of the state in the use of the water would be entitled to a quite liberal construction. The question would not probably be, has the state used no more water than was absolutely necessary for the purposes of navigation, and have its gates and locks been kept up to the highest state of efficiency and in the best possible repair, and have the most effective appliances been used to guard against the leakage of water, but the inquiry would be whether, taking the whole facts into consideration, all the circumstances surrounding the case, the state had done what was fairly and reasonably incumbent upon it to do in the use of the water for navigation purposes, and in the prevention of leakage or other wastage to a more than fair and reasonable extent.

The exception of the claimant to the finding of fact, that the superintendent of public works had power to use all the water, etc., as above stated, possibly might not raise the question, for even on that assumption the state may not have used any more water than was reasonably sufficient under the circumstances. Hence the materiality of the facts which the claimant requested the board to find in regard to the amount of water which was diverted by leakage, and what could have been done with it by the claimant if it could have had the use of it.

Upon a new hearing the whole case will be open to investigation, and it will be for the board to decide, in view of all the facts, whether the state is using more water than is fairly and reasonably necessary for purposes of navigation, or is talcing fair and reasonable precautions to prevent unreasonable waste of water not for navigable purposes.

The sections of the Revised Statutes called to our attention by the attorney-general are not, in our view, relevant. They refer generally to cases where the state has obtained the right to use ah the water, unconditionally and absolutely, and lets the surplus under conditions provided for in the statute. They do not touch such a case as this, where the state has no right to the use of water for any but navigation purposes, and only for such as may be necessary for that purpose, and where the balance has never been taken from the original riparian owner.

But even the statute referred to by the attorney-general expressly reserves the right of the owner of hydraulic privileges prior to any grant from the state, unless his damages for the loss of such rights are duly assessed and paid. 1 R. S. (7th ed.), 669, § 84.

' It is not necessary that there should have been a finding of negligence on the part of any officer of the state, or a request to so find. The exception to the finding as to the absolute discretion of the superintendent of public works, taken in connection with the refusal to find facts material to the issue as to the unlawful use of the waters by the state, and the exception to such refusal, are sufficient to bring the question before the court.

And this first exception is noticed in the notice of appeal, which is broad enough to permit the question to be raised and decided here.

The defense of the Statute of Limitations is made to the whole of the claim herein set forth. It is good undoubtedly as to the claim for 1882. We think it is equally clear that it is not good for the other years, 1883,1884.

If the proper facts upon which to base an action were found, it would then appear that the state had unlawfully used a certain amount of water, to the use of which the claimant had an undoubted right, and every day such use continued a new cause of action arose therefor, in favor of the claimant. Of course when action was commenced, all causes then existing would have to be included; but a recovery. for the damages sustained up to the time of the commencement of the action would be no bar to those subsequently arising for subsequent unlawful diversions.

The diversion being unlawful it is not to be presumed that it will be continued; hence, no foundation is laid for a recovery of damages that might be sustained in the future. Uline v. N. Y. Cent. R. R. Co., 101 N. Y., 98.

Besides, the amount of the diversion is liable to vary from day to day or hour to hour; and so wholly unstable would be the data that it would be entirely impossible to figure or reason upon the probable or possible amount of damage to accrue in the future.

As damages could not be predicated of the future, so a failure to sue for past alleged damages would have no effect upon the rights of the claimant within the period not barred, which, in this case, is by the statute stated to be two years. For the damages, if any, which claimant has sustained for. the two years prior to the commencement of this action, it is entitled to recover; the question to be determined by the rules we have laid down, and upon the facts which may then appear in proof.

To give the claimant the opportunity of proving the necessary facts, and the defendant any answer there may be to the claim upon the principles here laid down, the award must be reversed and the case sent back to the board of claims to be re-heard. Costs abide event.

All concur.  