
    Weeks-Thorne Paper Company, Appellant, v. The City of Syracuse and Others, Respondents.
    Fourth Department,
    July 12, 1910.
    Eminent domain — condemnation of mill rights for city water supply — mill owners not entitled to additional compensation when more water is taken — appeal — effect, of failure .to join therein — estoppel — acceptance of award.
    When the State of New York in 1843 appropriated the waters of Skaneateles lake as a feeder to the Brie canal, the rights of riparian millowners were not cut off. They were still entitled to use such water as flowed through the natural channels.
    When the water hoard of the city of Syracuse acting under the authority of chapter 291 of the Laws of 1889, as amended, acquired the right, subject to the rights of the State, to divert from Skaneateles lake at all times so much water as may he necessary to supply the city of Syracuse and its inhabitants with water, and to that end acquired all the riparian rights of millowners on the outlet to said lake, such riparian rights were totally extinguished .for all • time, and there can be no further claim for damages by the successor of such • millowner when the city lays new mains so' as to increase the amount of water drawn .from the lake. . . '
    Although the petition in such condemnation proceedings was held on appeal not ■ to describe sufficiently the property taken, and the petition was subsequently amended, the reversal did riot inure.to the advantage of a millowner who was not a party to the appeal. .
    Mor can such millowner, or its successor, contest the sufficiency of the petition to confer jurisdiction where it accepted and still retains the award made to it.
    Appeal by the plaintiff, the Weeks-Thorne Paper Company, -from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 5th day of January, 1910, upon the decision of the court rendered after a trial at the Onondaga Special Term.
    
      George Barrow, for the appellant.
    ■ Walter W. .Magee, Corporation Counsel, for the respondents.
   Spring, J.:

Skaneateles lake is a'body of fresh water about fifteen miles long . with a surface area of thirteen and one-fourth miles and a watershed of seventy-three miles, and is distant southwesterly from.Syracuse about seventeen miles, and its. altitude is considerably above that city. ;

Its outlet flows northerly discharging itself into Seneca river ten miles from the lake.- Along the banks of the-outlet several, mills are located,, among them that of the plaintiff .corporation' succeeding in title and interest to .the.Hartlot Paper- Company and which has been carrying on the "business of' manufacturing paper with water power derived from said outlet.

In 1843. the State of Hew York, through its Canal Board and Canal Commissioners, appropriated the waters of said lake flowing ■ through said outlet and ever since has' used the- same as a water supply for the Erie canal during the seven months of navigation. The quantity taken daily during that period on the average has' been about 11,000,000 gallons, all running through the . outlet. During the five-months season of closed navigation the .quantity of water discharged from the lake , has averaged about 48,000,000 gallons per day, and the entire available water supply of the lake on a daily average has been about 61j000,000 gallons.

The- quantity allowed to flow through the outlet has at all times been - regulated by the State gatetender representing the officers or board .in charge of the Erie canal. The appropriation- of the water of the lake by' the State did not oust the riparian mill owners of their right in the water (Waller v. State, 144 N. Y. 579), .and generally the use by the State did not operate to the detriment of these mill owners. The water all flowed through its natural channel and was available to those entitled to it.

By chapter 291 of the Laws of 1889, the water department of the city of Syracuse was provided for and permission granted to take the water of the lake to that city as a water supply for its inhabitant's. The act was amended by chapter 314- of the Laws of 1890. Section 18 of the act as thus amended provided : Tile Syracuse water board is hereby authorized, under the restrictions and-conditions hereinafter mentioned, to take and conduct water not required for the Erie canal, from- Skaneateles lake to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants "with water. Before any water shall be so taken, howevez-, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its watez-shed.” And further: “ Before any water shall be "taken from Skaneateles lake under the provisions of this act, the city of Syracuse shall acquiz-e or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water.”

In pui’suance of this authoi'ity vested in it by the, Legislature, in Hovember, 1892,. the city of Syracuse by petition to the Supreme Court commenced proceedings to acquire by condemnation the interest of the riparian owners along said outlet for the purpose of supplying said city with water;. The Hartlot Paper Company, the predecessor of the plaintiff, was a defendant in said proceeding, and answered therein. Judgment of condemnation was finally entered in said proceeding extinguishing the title of said Hartlot Paper Company and vesting the same in the city for the purposes mentioned, subject, however, to the paramount rights of the State in and to said water. The said Hartlot Paper Coznpany was awarded . the sum. of $22,000 for the value of its property right in and to' said water and said sum was paid and accepted by said company . and no appeal: from the judgment entered was ever taken by said company, and its right to appeal expired long prior to the commencement of this action; '

'The storage capacity of the lake was -increased by the city; in compliance with the direction contained in the amended act.

The judgment of condemnation and thé order, appointing the appraisers, granted January- 28,1893, provided, among, other things,, as follows : “That, upon making-compensation thér.efor, the City, of Syracuse, is entitled in this' proceeding as. against the defendants and every of them,- to condemn and acquire the right to increase the storage .capacity of Skaneateles Lake sufficiently to' retain' therein all the ordinary flow-from the watershed,, and .to'at all times ■' store and retain -therein so touch thereof as shall, not be required for ■ the Erie Canal; and subject to the rights of the State to rise the same for the supply of the Erie . Canal, to di/oert therefrom at all ■ times so much -thereof "as may be necessary to supply -the, city of Syracuse and its inhabitants with water.” .’

The report of the commissioners contained, the- following : “ The foregoing awards of compensation are based upon an appropriation by the City of Syracuse of all the water fights of the several claim- ■ ants of, in and to the waters of Skaneateles. Lake and its watershed, ’ with the right to store in said lake, and to divert therefrom, as-may at.any time be authorized by law, so much of the waters of said lake arid its watershed as .shall not be-required by the State of Héw York for the Erie Canal; and Upon the depreciation in value ■ of the several properties described in the petition and.- judgment in this proceeding, and embrace- the compensation which ought justly to' be made by the City of Syracuse to the several claimants herein; ” and the final order of confirmation "was to the like, effect.

.- ft seems-to be palpable,, therefore;-that’the right of the Hartlot - Paper Company in this water was by .this judgment- extinguished for all time so far as the right thereto by'the city was concerned. The act only provided for so. much water as could be taken through a pipe thirty inches in diameter. The city .was growing rapidly and increasing in population* and the'assumption was reasonable ' that the one pipe in. time would become inadequate for-the needs of. : the city and .its inhabitants. The board of water commissioners evidently deemed it unwise to require a new action against those mill owners whenever an addition to the carrying capacity of the water line to the city' was made • necessary and permitted by the Legislature. Accordingly by the judgment, following in effect the language of the petition, tlie city condemned and acquired the right to divert at all times whatever water was necessary to supply it and its inhabitants. ■ The awards of compensation were made upon the expectation of increasing the water supply to the city, and the commissioners were careful so to state in their report. The conclusion, consequently, is irresistible that the award of $22,000 to the Hart-lot Paper Company was .intended in payment for the extinguishment of its right to the water for all time in favor of the city.

To be sure, the right of the city in this water, is subordinate to that of the State for canal purposes. Ho one has ever challenged that proposition and the judgment distinctly recognizes its verity. Also, when the water is flowing through the outlet for the use. of the State the plaintiff and the other riparian owners may avail themselves of it, but the water which flows through the outlet is to supply the Erie canal not the plaintiff or the other mill owners. The use by the owners is entirely a matter between the State and them. The State may possibly deprive the city of the use of the water, thus rendering its investment of little value and the plaintiff may profit thereby. Again, its benefit would result, not because of any right the plaintiff lias in the water as against the city, blit because it is the incidental beneficiary of the user by the State. If the State should abandon the canal or permit the city of Syracuse to use all the water which is impounded within the lake area and such use was necessary, the plaintiff would have no cause of action against the city. The controversy of its predecessor in title with the city ■ was ended for all time by a judgment in which such predecessor acquiesced by accepting, and retaining the sum awarded, and the plaintiff does not now offer to return that sum or repudiate the judgment.

It was claimed by the defendants in the condemnation action that the petition did not describe the property to be taken with sufficient definiteness. An appeal was taken from the .judgment to the General Term of the Supreme Court by some of the defendants and a reversal was-had upon that-ground. (City of Syracuse v. Stacey, 86 Hun, 441.) The petition was subsequently amended, new and larger awards were made and another . judgment entered, which was affirmed. (City of Syracuse v. Stacey, No. 1, 45 App. Div. 249; 169 N. Y. 231.)

•. The judgment of condemnation condemned all the water rights of the defendants upon the outlet of the lake, and also contained this clause: “The right.to divert and withdraw from said lake and the waters to- be stored therein, such and so much water as from time to time the uses of said city and its inhabitants may require, and as may be lawfully taken therefor.”

The Hartlot Paper Company was'not a party to tile appeal and the reversal'did not inure to the. advantage of. the- plaintiff. (St. John v. Andrews Institute, 192 N. Y. 382, 386, 389.)

The chief' contention of the appellant is that the petition did not •state facts sufficient.to confer jurisdiction, and the .specific defect urged is the omission of the petition to set- forth accurately the property sought to-be condemned. The Supreme Court Certainly, had jurisdiction to entertain a proceeding of this kind, and the petition was adequate to confer, authority over the subject-matter, as well, as óf the person of the defendants. The question is of no ■ importance now, for the court assumed jurisdiction, disjposed of the rights of the parties to the-action and the Hartlot Paper.Company cannot recognize the validity of the judgment by accepting. the money awarded it, and while retaining it through its successor in ', interest challenge the adequacy of the petition, (Tonnele v. Wetmore, 195 N. Y. 436; Sherman v. McKeon, 38 id. 266, 274 et seq.; City of Buffalo v. Balcom, 134 id. 532, 536.)

As was said in Sherman v. McKeon (supra, 275): "The receipt of the money operates as an estoppel, , and the damages paid haVe the same effect as a' conveyance, and' vest the title in the . corporation,”

By chapter 631 of the Laws of 1966, the city was empowered to add to its water supply frqm the lake, and it is now laying another . conduit thirty inches in diameter to the city, which will double the carrying capacity. The original line was capable of delivering to ■ the city at full head 15,661),666 gallons of water daily,, and a further depletion of the water may interfere materially with the Value and efficiency of the water privilege of the plaintiff. If the award and judgment had been solely for the damages arising from the diversion of the 15^000,000 gallons daily there would be much force in the position of the plaintiff. As the judgment and the compensation paid covered the damages for all thé watér which might for all time be diverted the plaintiff is estopped from recovering in this action or obtaining the injunction asked for.

The judgment should be affirmed, with costs.

All concurred, except McLennan, P. J., not sitting.

Judgment affirmed, with costs.  