
    The People ex rel. Charles W. Bingham, Trustee, Etc., Relator, v. The State Water Supply Commission, Respondent.
    (Supreme Court, Livingston Equity Term,
    January, 1911.)
    Constitutional law — Provision relative to drainage—Interpretation. Waters and watercourses — Natural watercourses — In general — Legis- . lative control — Statutory provisions — Construction — Powers of State Water Supply Commissioners.
    It is not within the powers of the State Water Supply Corn? mission to deepen, lengthen and straighten existing artificial ditches and to dig new ones for the purpose of draining agricultural lands at the expense of property owners who do not request or assent to the improvement.
    The word “ watercourse ” is employed in the River- Improvement Act (Laws of 19CM, chap. 734) to denote a natural watercourse.
    Since the River Improvement Aet forbids any improvement to be undertaken thereunder until the approval thereof by a subsequent act of the Legislature, it cannot be made applicable to the drainage of agricultural lands under the State Constitution which forbids the passage of any special or local act for the drainage of agricultural lands.
    Nor can subsequent curative acts make valid acts of the State Water Supply Commission for the accomplishment of such a work which is outside the jurisdiction of the Commission.
    'Certiorari proceedings to review the action of the State Water Supply Commission in including lands of the relator in the improvement district upon which to assess the cost of the proposed improvement of Canaseraga creek and its tributaries in the county of Livingston.
    J. M. Hastings and George H. Starr, for relator.
    Lockwood R. Doty and John F. Connor, for respondent.
   Sutherland, J.

The proceedings brought under review by the writ of certiorari herein have to do with the project for improving the watercourse known as Canaseraga creek and its tributaries in the valley between Mt. Morris and Dansville in Livingston county, which scheme, in 1905, was first laid before the River Improvement Commission, -a hoard created by chapter 734 of the Laws of 1904; and the plan adopted by that Commission was approved and the work authorized to he done by a special -act (Laws of 1906, chap. 419). By chapter 418, Laws of 19-06, the powers and duties of the River Improvement Commission were transferred to the State Water Supply 'Commission. The State Water Supply Commission advertised for bids and received none; and then, procuring authority from the Legislature for greater expenditure, the whole question was taken up de novoj and a "new determination for a more extensive improvement was made in 1907, which was ratified and work thereunder authorized.by-another special act (Laws of 190‘7, chap. 195). The improvement district was created and defined by 'an -order or -determination of the Commission dated January 10, 1910, and -confirmed after hearing objections April 15, 1910, pursuant to section 12-a of chapter 54 of the Consolidated Laws, as revised by chapter 464 -of the Laws of 190'9. The determination of the 'State Water Supply Commission -to include the lands of the relator in the improvement -district, which is to he .subject to assessment for the cost of -construction and of the maintenance of the improvenlent contemplated, is reviewable hy certiorari under said section 12-a in like manner -as a review is bad of a determination of a board of assessors in making an assessment.”

The relator asks that his lands he left untaxed for this . improvement, alleging many -objections to the inclusion of his land which, in the main, are: (1) That the proceedings of the Commission are unlawful and the scheme, as outlined, illegal; -and (2) That the lands of the relator will not he benefited hy the proposed improvement in any particular, and, therefore, should he exonerated from assessment, even if the project itself he lawfully conceived.

I have been readily convinced that the improvement- contemplated would be -of great benefit to an extensive agricultural district, and would largely enhance the value and productiveness of thousands of acres of flat land in the southern part of the district, which are not eapahl-e of high cultivation in their present condition, owing to the lack of proper drainage, and would tend to lessen the malaria which has prevailed in this region. One of the causes of the inundation of these lands is the periodical overflowing of Canaseraga, creek, which follows a meandering course through this flat valley, and has become choked with debris, and in a time of heavy rains or melting snow overflows its banks and spreads out over a wide area. These flood waters make their way slowly toward the north, where finally the Oanaseraga creek empties into the Genesee river at a point near the relator’s land. The lands at the north end of the valley near the junction of the Canaseraga and Genesee are flooded not only from the Canaseraga, but also from the Genesee, the waters from which back up the valley southward for several miles in times of high water. It is the contention of those favoring the improvement proj ect that, if the work contemplated is done, there will be a quicker run-off from the Canaseraga watershed, and the crest of the flood from the Canaseraga will pass out through the junction of the Genesee and so on north toward Lake Ontario, before the crest of the flood from the Genesee watershed has reached that junction point, thereby lessening materially the aggregate of the flood waters of the two streams in the region occupied by the relator’s land. The project contemplates the deepening and straightening of Canaseraga creek, shortening its running length by about six miles between Dansville and Mt. Morris by cut-off channels, eliminating loops in the present course, giving it a uniform fall and deepening and cleaning up certain smaller creeks which are tributary to the Canaseraga, to the end that a quicker and more even flow of water may be obtained. To this extent, the improvement and the proceedings preparatory thereto seem to be in conformity with the statute which gives the Commission jurisdiction to regulate the flow of water in a river or watercourse, where it is shown to be necessary' for the preservation of the public health and safety.

The relator claims that no benefit would accrue to his land from these changes in the watercourses; but I do not deem it essential to pass upon that contention at this time, as a decision in favor of the relator is awarded upon other grounds which -appear to me to be controlling.

The defendant Commission has gone much further than to project an improvement of the natural watercourses referred to, for it has planned and is about to undertake the deepening, lengthening and straightening of miles of artificial ditches that were dug in past years throughout the southern portion of the district, and the digging of new ditches, for the direct purpose of more thoroughly draining this wide area.

This collateral drainage scheme to be effected by ditches, in my opinion, has not been -and is not now-within the jurisdiction of the River Improvement Commission or its successor, the State Water Supply Commission. However desirable as a public improvement such drainage project may be (and of its value there is no doubt), I am convinced, after careful consideration of the statutes relating to the creation .and the definition of the powers of said commissions, that it cann-ot be carried out by the defendant Commission, because drainage -schemes for agricultural .lands -are not within th-e purview of those statutes and can only be accomplished by proceeding under the General Drainage Act (Laws of 190'9, -chap. 2-01, constituting Consol. Laws, chap. 15). And, as the -assessment which is about to be spread upon the improved district is not severable, but covers the cost of the entire work, the assessment will be illegal; -and the relator’s lands must be excluded from any district which is to be subjected to a tax for the double purpose, part legal and part illegal, made manifest by the papers in this case. People ex rel. O’Reilly v. Common Council, 189 N. Y. 66; Harriman v. City of Yonkers, 181 id. 24.

It is n-o answer to this objection to say that the two schemes can be advantageously worked together by the State Water Supply 'Commission, one as auxiliary and supplemental to the other; for the efficiency of the plan is not the test of its legality when it involves the drainage of agricultural lands at the -expense of property owners who do not request or assent to the improvement.

The history of the drainage law-s in thi-s -State is long -and complicated. They have given rise to much controversy in the courts; and it has seemed necessary, in order to correct abuses that have grown up, to have special provisions on the subject inserted in the State Constitution. At last the statutory laws covering the subject have assumed a form under the General Drainage Act which expresses the result of judicial decisions upon the subject and seems to be within the lines of constitutional limitation that have been laid down; and any drainage project for agricultural land must be effected in the method defined by that act and cannot be brought about as an auxiliary element incorporated into and treated as part of a project for the improvement, of watercourses under a statute creating a commission for the latter purpose. And if the protection of the public health demands the carrying out of a drainage scheme similar to the one outlined, that result can be efficiently and legally accomplished by proceeding under the Drainage Act.

The River Improvement Act (Laws of 1904, chap. 134) refers to natural streams only, and has no application to drainage ditches; and the phraseology of that act has been carried over into article 2 of the State Boards and Commissions -Law, which deals with the State Water Supply Commission. The petitioners who may set the commission in motion are mentioned in section 2 as “ any county, city, town or village located upon any river or watercourse, or any person or persons possessing riparian rights thereon.” The causes of the “ excessive, restricted or irregular flow in such river or watercourse ” are to be investigated by the Commission (§ 3) ; and the means to attain “ a more beneficial flow of water in such river or watercourse ” made available by the act are “ the construction of dikes, clearing out or changing the channel, the erection of a dam or dams or other public works thereon or upon any tributary thereof ” (§4);

While the word “ watercourse ” may be sometimes applied to artificial channels, yet here, in association with the word “ river,” its use as meaning a natural stream is in accordance with the practice of law writers generally in treating of the distinction between natural streams and artificial ditches or drains. In Jeffers v. Jeffers, 107 N. Y. 650, the Court of Appeals say that in law a watercourse means “ a living stream with defined banks and channel, not necessarily running all of the time, but fed from other and more permanent sources than mere surface water.” See Wagner v. Long Island R. Co., 2 Hun, 633; Angell Water Course, §§ 1—4.

Furthermore, the 'State 'Constitution expressly forbids the passage of any special or local act for the drainage of agricultural lands. Art. I, § 7; art. Ill, § 18. The provision in article I was inserted in the Constitution in 1894, and that in article III was inserted in 1874. A special act for drain-■age does not escape the condemnation of the Constitution, even if it is for the preservation of the public health; as no drainage scheme, the expense of which is to be placed partly upon non-assenting property owners, is constitutional, unless it has for its object the preservation of the public health. Matter of Ryers, 72 N. Y. 1; Matter of Tuthill, 36 App. Div. 492; 163 N. Y. 133.

Special laws on that subject being prohibited, we should not •assume that the Legislature intended, in passing the Eiver Improvement Act, to provide for a drainage scheme, inasmuch as no improvement could be actually commenced under that act without a special act approving the determination of the commissioners with reference thereto and authorizing and directing the work "to be done. Section 4 -says: “ Ho such improvement shall be undertaken under this act pursuant to any such final order, or any other proceedings had thereon, except as hereinbefore provided, until after the 'said final order shall have -been approved by a subsequent act of the Legislature, which act shall authorize and specifically designate the improvement singly directed by such final order to be made. If so approved, the said final order shall become effectual and not otherwise.”

For the same reason the special acts with reference to this particular improvement (Laws of 1906, chap. 419; Laws of 1907, chap. 195) are ineffective to legitimatize the drainage part of the project.

In the consolidated State Boards and Commissions Law (Laws of 190-9, chap. 56, art. 2, § 22b, as amd. by Laws of 19’09, chap. 464), it is provided: “All proceedings heretofore taken under the provisions of this article, chapter seven hundred and thirty-four of the laws of nineteen hundred and four, and the acts amendatory thereof and supplemental thereto are hereby legalized, ratified and confirmed.”

An omnibus- curative act of this description should be construed, not as an attempt to legitimatize acts that were outside the jurisdiction of the Commission, but only as confirmation of those acts within the jurisdiction of the Commission which may have been imperfectly performed. The Legislature cannot confirm an act done without power, though it may confirm the irregular execution of a power. Lewis’ Suth. -Stat. Const., §§ 676, 677.

Ror can the ditch drainage part of this project be supported upon the theory that such drainage is a mere minor incident necessary to the greater and dominant purpose allowed by the -act of the improvement of natural watercourses. The inspection of the plans and maps discloses that the construction of these ditches is one of the main features of the plan as projected, adding much to the expense of construction and maintenance. The preliminary specifications, filed March 1, 1906, state, under the heading “ Work,” as follows:

“ The work contemplated under these specifications consists of the straightening, deepening and improving Oanaseraga creek, from a point near the village of Dansville, in the county of Livingston, to its junction with the Genesee River; the deepening and improving of the Kishaqua creek, from a point near its crossing of the Dansville & Mount Morris Railway to its junction with the Ganaseraga creek; the deepening, improving and straightening of three channels, known as the State ditch, Bradner creek and Mud Run, and other ditches, as the same are shown on the plans filed herewith; the rebuilding of the highway bridges which will be affected by this improvement, and the building of such farm bridges as may be ordered by the engineer in charge; ” and under the heading “ Excavation,” as follows:

“ Excavation will be made on the lines shown upon the map. The earth removed along the Ganaseraga creek and along ICisbaqua creek will be placed in the form of an embankment along the banks of the two creeks, as improved. The earth removed from the drainage ditches will be used in filling low places in the vicinity of those ditches, and be spread as the engineer may direct.”

The State ditch, referred to in the specifications just quoted, appears to be an artificial channel several miles in length through private lands, which one of the engineers stated had been originally constructed by the State to take care of leakage from the branch of the Genesee Valley canal, now abandoned. The maps of the improvement show a number of ditches in addition to the State ditch, so-called, which are either to be deepened, lengthened and straightened, or are to be newly dug, and seem to be designed for drainage only. These drainage ditches are not necessary in any legal sense to the improvement of the natural watercourses.

The improvement of natural watercourses, by lessening the overflow and providing a ready outlet, may better the drainage conditions of adjacent land; and a drainage scheme projected under the Drainage Act may legitimately have as one of its features the improvement of a natural watercourse; and .so there is a zone wherein, to some extent at least, the work and result may be the same, whether it is-approached from the drainage side or the river improvement side. In this case, however, the commissioners have traveled far beyond the zone of concurrent jurisdiction, and have attempted to occupy territory that does not belong to them.

The learned counsel for the defendant refers with apparent confidence to the opinion of the Court of Appeals in State Water Supply Commission v. Curtis, 192 N. Y. 319, to sustain the propriety of all that has been done. That was a case brought before the court upon. an agreed state of facts to determine the right of the Commission to take by condemnation proceedings certain land for the purpose of the act; and the regularity of the entire procedure of the Commission was stipulated, as well as the necessity in fact that the property in question be taken for the regulation of the flow of 'Ganaseraga creek and its tributaries for the preservation of the public health and safety, which it was conceded were menaced by such flow.

The only points considered by the court were the sufficiency of the notice provided by the act, and the certainty that a landowner, whose land is sought to be taken by condemnation for the purposes of the act, will be paid Ms compensation. And the court held that the provision as to notice was sufficient and that, as the landowner would not have to give up Ms land till he actually received his money for it, the points raised by him were not well taken. The Court of Appeals did not have the facts before it which are now disclosed to this court 'as to the extent of the proposed operations of the Commission; so I do not regard the case against Curtis as controlling in any way upon the point which is held to be decisive in the present proceeding.

Tor the reason that any assessment made by the defendant ■ Commission will be void if levied to pay for the drainage work under the plan outlined, the prayer of the petitioner must be granted, and bis land must be exonerated from such assessment-

Ordered accordingly.  