
    Jesse B. Coleman, App’lt, v. The State, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    State—Trespass—Liability for acts op contractor.
    The state in 1822 dammed Tonawanda river and turned the water into Oak Orchard Creek so as to materially widen it where it passed through the farm of plaintiff who owned to the middle of the creek. The superintendent of public works being authorized by statute in 1887 to widen and deepen the channel of the creek, made a contract with T. to do the work across plaintiff’s farm and deposit the materials where directed by the state engineer. The engineer set stakes a few feet on plaintiff’s side, directing that no material should be deposited between the creek and the stake, but the contractor piled an immense'quantity of rock upon plaintiff’s premises. Held, that the entry of the state upon the strip of land and its_ direction to the contractor to excavate and remove the stone therefrom being wrongful, a trespass, it became liable for all trespasses committed by the contractor with the knowledge and acquiescence of the agents of the state in executing the contract.
    Appeal from a final award of the board of claims denying .any relief to the claimant.
    
      Whedon & Ryan, for claimant, app’lt; S. W. Rosendale, atty.-genl., for resp’t.
   Follett, Ch. J.

—The claimant’s farm of seventy-five acres is situated in the town of Shelby, this state, and is bounded on its westerly side by Oak Orchard creek, which rises some distance .south of the farm and not far from the head waters of the Tonawanda river. In 1822 the state dammed the river and constructed .an artificial water way by which part of its waters were diverted from the river and turned into the creek at' a point about two miles above or south of the claimant’s farm.. About four miles .below or north of this farm the creek crosses the Erie canal at the village of Medina, where part of its waters are used to feed the •canal, and have been so used since 1822. From Medina the creek flows northeastwardly and empties into Lake Ontario. The creek is about forty feet wide where it crosses claimant’s farm, and prior to the acts complained of was quite shallow. One of the highways of the town of Shelby extends through the claimant’s farm substantially on the east bank of and parallel to the creek. Between the west line of the travelled part of this highway and the line of high water mark there is land varying from ten to thirty-five feet in width, which previous to 1887 was smooth, capable ■of cultivation and from which the creek was easily accessible. From four to six rods east of the highway are the claimant’s farm house and out buildings.

By chapter 424 of the Laws of 1887, the superintendent of public works was authorized to widen (by how much is not stated) and to increase by two feet the depth of the channel of ■Oak Orchard creek from the point where the Tonawanda river is discharged into the creek to a point three miles below. Pursuant to this act, the state, by its said superintendent, and George M. Taylor, on the 28th day of July, 1887, entered into a written contract by which the latter contracted to widen by fifteen feet .and deepen by two feet the creek across the plaintiff’s farm for certain sums per cubic yard for material removed, and deposit the materials where directed by the state engineer. The engineer employed by the state set a line of stakes three or four feet east of the top of the slope of the bank of the creek and directed that no material taken from the creek should be deposited between it :and that line of stakes.

During 1887 and 1888 upwards of a thousand cubic cords of rock were taken from the bed of the creek by the contractor and ■deposited on both sides of the highway on the claimant’s premises. September 19, 1888, his claim was filed, which was tried in June, 1889, and in December, 1889, an award was made by which it was decided that he was not entitled to recover anything, although it was found as a fact that he was damaged by piling stone upon his land and in various ways not necessary to-here mention. The claimant was denied any relief as against the. state upon the ground that the wrongs complained of were committed not by the state or its agents, but by the contractor. The. board found, in effect, that the claimant’s land extended to the center of the creek, which was its western boundary, but failed to take into consideration the fact that the state entered upon the land between the center of the stream and the line of stakes set on its eastern bank and directed the removal of material therefrom.

There is no finding that the state ever acquired by gift, grant or by the right of eminent domain, title to any part of this land or the right to enter upon and remove any portion of it, and there-is no evidence in the record which would sustain such a finding. The only evidence bearing upon this question is the concession-that the creek had been used as a feeder for the canal since 1822.

There is no evidence that the state has occupied the whole of the land which it entered upon claiming to be its exclusive owner, and for this reason the evidence is insufficient to have authorized the board to have found that the state had acquired title to all or some portion of this land by adverse possession. The right to divert water from the Tonawanda river to this stream and use it six or seven miles below for supplying the canal, which we will assume might be acquired by adverse user, would not of itself confer the right upon the state to broaden and deepen the bed of the stream.

For the injury caused by entering upon this strip of land by the state it was liable, and the board erred in refusing the claimant any relief. The entry of the state upon the land and its direction to the contractor to excavate and remove the stone therefrom being wrongful, a trespass, it became liable, for all trespasses committed by the contractor with the knowledge and acquiescence of the agents of the state in executing the contract.

Whether the state is liable for the acts of the contractor in piling the waste material upon the claimant’s land in case the state-had the right to remove the material from the bed of the stream, depends upon whether those trespasses were directed, authorized- or sanctioned by the state. This was a question of fact which was litigated on the trial now being reviewed, and may again be, in case the claim is re-tried, and the evidence and finding may be different, so the findings and evidence bearing upon this question need not now be discussed.

It does not appear that the claimant requested the board to find facts and conclusions of law, nor that he excepted to the facts found or conclusions of law. .The statute regulating appeals from the decisions of the board of claims provides that an appeal may be taken to the court of appeals upon questions of law -only arising upon the hearing oí the 'claim, and that every appeal shall be in writing and briefly state the grounds upon which it is taken.

In this case the questions above discussed were specified in the notice of appeal served, which was sufficient to enable the appellant to raise the questions, although he had not served and filed exceptions as he might well have done.

The final award or order is reversed and a new hearing ordered, with costs to abide the event

All concur.  