
    In re BROOKFIELD, Commissioner. Claim of SARLES.
    (Supreme Court, Appellate Division, Second Department.
    January 9, 1903.)
    1. Cities—Water Supply—Condemnation—Damages—Basis.
    Riparian owners granted the proprietor of a dam lower down the stream “all the lands that would be overflowed by raising the water level twelve feet, only for the purpose of being flowed,” it being stipulated that if grantee should not use the land for that purpose, or should cease to so use it, the grantors or their heirs or assigns might buy it back. A city condemned the pond, and acquired the rights of all lower riparian owners for use as a municipal water supply. fleieE, that conceding the fee in the land deeded for flowage to be in the successors in title of the grantors, their interest was so intangible and practically valueless that a commissioner’s report establishing damages for its condemnation at a nominal sum could not be regarded as founded on an erroneous basis.
    3. Same—Commissioners’ Report—Presumption.
    In the absence of palpable error in the principle on which damages assessed by commissioners in condemnation proceedings are awarded, their conclusions will not be set aside.
    3. Same—Value as Basis for Water Supply.
    The value of the submerged land as the foundation for a reservoir for a municipal water supply, based on the value of the water per million gallons, was not a proper basis for assessment of damages, as, the city having acquired the right of the lower riparian owners to an unobstructed flow, the owners of the submerged land had merely a usufructuary right in the flowing water.
    Appeal from special term, Westchester county.
    Application by William Brookfield, as commissioner of public works of the city of New York, to condemn certain real estate under Laws 1893, c. 189, against De Witt C. Sarles. From an order reversing the report of commissioners assessing damages, applicant appeals. Reversed.
    Argued before GOODRICH, P. J., and JENKS, WOODWARD, and HIRSCHBERG, JJ.
    H. T. Dykman, for appellant.
    James Dunne, for respondent.
   WOODWARD, J.

William Brookfield, as commissioner of the board of public works, instituted the present proceeding, under the provisions of chapter 189, Laws 1893, for and in behalf of the mayor, aldermen, and commonalty of the city of New York, to acquire certain real estate as defined in said act, in connection with the water supply of the said city. In September, 1895, Eugene B. Travis, Francis Larkin, and John J. Quinlan were duly appointed as commissioners of appraisal, subsequently qualifying, and in virtue whereof, and pursuant to the provisions of said act, the city of New York became seised in fee of parcels 61 and 62, the awards in respect to which have been set aside by the court at special term, and are now before us for review.

Prior to 1864, Byram pond was a nonnavigable fresh-water pond, formed or enlarged by a dam on the west branch of the Byram river, in the town of Northcastle, Westchester county. The outlet of this pond, known as Byram river, runs in a southerly direction about one mile to the Connecticut state line, thence several miles through the said state until it reaches Long Island Sound. Some distance below the original pond there existed for many years the usual old-fashioned sawmill, formerly owned by John P. Tripp, and now owned by the city of New York, and this millowner had the right to the maintenance of the pond for the use of this mill. Josiah Wilcox and other manufacturers, who owned mills bordering on the Byram river, in the town of Greenwich, Conn., used the natural flow of the waters of this branch of the Byram river as a part of their power. . The original bed of Byrami pond at this time contained about 120 acres of land, and parcel No. 62 included a part of the original pond in the town of Bedford, and .parcel No. 61 a part of the pond in the town of Northcastle. In the year above mentioned, Mr. Wilcox, with four other manufacturers, in order to procure storage for w'ater for the use of their mills some miles below this pond and in the neighboring state, entered into negotiations with the owners of lands bordering on Byram river and Byram pond, and lying beneath the waters of the pond, to secure title to the necessary land to raise the waters 12 feet by erecting a new dam about one-quarter of a mile below the old outlet. Mr. Wilcox and those operating with him were riparian owners upon Byram river, the outlet of this pond, and were not diverting the waters of this reservoir from their natural channel, but were simply holding the water in reserve to produce a more uniform flow throughout the year. They first procured from Ebenezer G. Platt the land upon which the dam was built, and all lands that he owned that would be flooded by raising the waters of the old Byram pond 12 feet above the original level. Mr. Wilcox procured deeds from all personé owning land around the pond and having interests m the bed of the pond, including the respondent’s ancestors in title, vesting him and his associates with the right to raise and-lower the waters of the pond 12 feet. - This result was secured by means of two transactions, the first of which deeded to Mr. Wilcox and his associates a certain portion of the uplands adjoining the By ram pond, with the hereditaments and appurtenances, which are described as “being all the land on both sides of Byram river and Byram pond that will be overflowed by the waters of Byram river and Byram pond in consequence of the erection of a dam across said Byram river, southerly by lands hereby conveyed of sufficient height to raise the waters in Byram pond eight feet and two-tenths above its present level; and the above-described land is conveyed by the party of the first part to the party of the second part only for the purpose of being flowed by said pond; and in case the party of the second part should not use said land for the purpose above named, then the party of the first part, his heirs and assigns, shall buy back the land hereby conveyed at such price as may be agreed upon between the parties to these presents, and in case of a disagreement between the parties, then each shall choose a disinterested person,” etc.; and the second deed provided, under the same terms, for the increase of depth of water to 12 feet. All of the deeds were in form and substance the same, in so far as they have any bearing upon the question now before us, and the clear intent of the parties was that Mr. Wilcox and his associates should take an absolute fee in so much of the land as should be necessary, with a covenant in the nature of a pre-emptian right (see 2 Bouv. Law Diet. 350, tit. “Pre-emption”) on the part of the party of the first part to repurchase the property so conveyed in the event of its abandonment by the parties of the second part for the purpose of flowage. That is, the parties who were, at the time of making the sale, riparian owners along the pond and river, did not want to leave the matter in such a position that the purchasers at some future time might tear out the dam and leave them with a strip of land between them and the water; they wanted to preserve to themselves the advantages of riparian owners, and to this end the clause was introduced which preserved to them, not any interest in the land conveyed, but a right to repurchase should the time ever come when the waters should be permitted to- recede to the old level. Whether we view this question in the light of the presumption that Mr. Wilcox and his associates, by becoming the owners of the lands bounding the By ram pond and river, thus became the owners of the soil underlying the waters (Smith v. City of Rochester, 92 N. Y. 463, 473, 44 Am. Rep. 393; Gouverneur v. Ice Co., 134 N. Y. 355, 364, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669), or whether we construe the grant to be confined to the lands which were actually described, it is clear that the grant contemplated the right to the use of the land which was at the foundation of the original pond and river bed so long as the lands should remain the property of Mr. Wilcox and those interested in his enterprise, for the water could not be maintained in the pond at a height of 12 feet above its then level without the land on which it was founded. The original owners of the fee of the land under the river and pond had no right to divert the water, and, even if it be conceded that no part of the fee to the land under the original river and pond were conveyed to Mr. Wilcox by the deeds in evidence, the ownership is, nevertheless, subject to every easement and servitude necessary to the use of the water by the riparian owners, so far as they may be entitled to the same. Sweet v. City of Syracuse, 129 N. Y. 316, 336, 27 N. E. 1081, 29 N. E. 289. There can be no doubt that, up to the time that the city of New York purchased the rights of riparian owners in the state of Connecticut, the owners of the fee to the land which was flowed by Byram river and Byram pond had no very tangible interest in the land, except as riparian owners, and, as was said in Gouverneur v. Ice Co., 134 N. Y. 364, 31 N. E. 868, 18 L. R. A. 695, 30 Am. St. Rep. 669, “the value, such as they have, of small nonnavigable lakes and ponds, as a general rule, is mainly in their relation to the adjacent lands.” The city of New York, by extinguishing the rights • of riparian owners below the pond, became vested with the rights to which the riparian owners were entitled in the river and pond, and it is not to be doubted that it has a perfect title in the land which was conveyed to Mr. Wilcox and his associates, and subsequently purchased by the city, for the purpose of maintaining the water at a height of 12 feet above the original level. So that, conceding the title of the land under the original river and pond to be in the parties who are now claiming compensation for the taking, it is so entirely intangible, so utterly valueless as a practical property right, that it cannot be said that the commissioners, who are not confined to the oral testimony in forming their judgment (In re Gilroy, 78 Hun, 260, 261, 28 N. Y. Supp. 910), have adopted any erroneous theory in establishing the compensation for these rights at a purely nominal sum. In the absence of palpable error in the principle on which the damages are awarded, the acts of commissioners in cases of this character are not to be set aside. In re Gilroy, supra; In re Brooklyn El. R. Co., 87 Hun, 88, 33 N. Y. Supp. 881; Railroad Co. v. Reynolds, 50 App. Div. 575, 64 N. Y. Supp. 199; Daly v. Smith, 18 App. Div. 194, 45 N. Y. Supp. 785; In re City of Rochester, 137 N. Y. 243, 246, 33 N. E. 320. See City of Syracuse v. Stacey, 45 App. Div. 249, 61 N. Y. Supp. 165, a case much in point.

In this connection it should be stated that, in the proceeding in which this appeal arises, the city of New-York has purchased, by condemnation, all of the, uplands of the adjacent owners, including those portions of the parcels here involved which are above the water line, paying for the same what appears to be a satisfactory price, and the only evidence on which there could be any recovery beyond a merely nominal amount,—assuming the fee to be in the respondent,— is that of a witness for the respondent, who estimates the value of the land as the foundation for a reservoir for a municipal water supply, basing his calculation upon the value of the water by the million gallons for domestic use. This is clearly an entirely improper basis of calculation. While the right to use the waters of this pond and river as it flows along in a body may become a property right, yet the water itself, the corpus of the stream, never becomes, or, in the nature of things, can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein (Sweet v. City of Syracuse, 129 N. Y. 316, 335, 27 N. E. 1081, 29 N. E. 289, and authorities there cited), and, as we have seen, the respondent’s property rights consisted merely in the rights of riparian owners as the water flowed through the pond and the channel of the river, assuming the title of the city to the Wilcox purchase to have extended only to the land which was subsequently overflowed. The riparian owners along the Byram river below the pond had a right to an unobstructed flow of the waters of this pond, and the owners of the fee of the bed of the pond could not deprive them of this right. The city of New York, for the purposes of a municipal water supply, extinguished the rights of the lower riparian owners, and thus secured the right to divert the water to another point. The city thus became vested with the same rights which belonged to the riparian owners along the stream, and this included the right to have the water flow over the bed of the stream, and, now that the city has purchased all of the property rights in the water shed, it is idle to say that this land under water, as to which the city owns the right to a continuous flow of the waters over the same, has any artificial value as the foundation for a storage dam. Even should the city abandon its right to maintain the water at a height of 12 feet above the original level, and the heirs of the original grantors should avail themselves of the right of repurchasing the additional lands which were overflowed, there would still be the right of the city to the uninterrupted flow of the stream over the bed of the pond and the river, and it is this land, with no environment of any commercial importance, which it is claimed the city should be called upon to pay for as the foundation of a storage dam. We are clearly of the opinion that the learned court has fallen into error in this matter, and that the report of the commissioners should have been confirmed in this, as in all other respects.

The order appealed from should be reversed, and the report of the commissioners, who have had the opportunity of a personal observation of the premises, should be confirmed.

Order, so far as appealed from, reversed, and the report of commissioners confirmed, with $10 costs and disbursements.

GOODRICH, P. J., and JENKS, concur. HIRSCHBERG, J., reads for affirmance.  