
    The City of Syracuse, Respondent, v. Richard M. Stacey and Others, Appellants.
    (No. 1.)
    
      Eminent domain—measure of damages to riparian owners — extent of their property rights—proof as to business profits is incompetent — only palpably unjust awards set aside.
    
    In a condemnation proceeding instituted by the city of Syracuse under chapter 291 of the Laws of 18ti9, as amended by chapter 314 of the Laws of 1890, which authorized the city of Syracuse* to draw water from Skaneateles lake upon condition that it would erect a dam of sufficient height to impound all the water of the lake, and would acquire or extinguish all the water rights appurtenant to property abutting on its outlet, the proper measure of the damage suffered by the riparian proprietors on the outlet is the difference iii the market value of their property with the water rights and without them.'
    Evidence of the profits earned by the proprietors in their business is not competent on the question of damages, as the profits of any particular business depend upon a variety of circumstances not connected with the value of the property used.
    Such proprietors have no title to the corpus of the water or any right to permanently retain, withhold or divert the same, and consequently are not entitled to damages for property actually appropriated by the city.
    An award of commissioners appointed in a condemnation proceeding will not be disturbed upon the question of damages unless it is palpably unjust.
    Appeal by the defendants, Richard M. Stacey and others, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Onondaga on the 17th day of May, 1898, confirming a report of commissioners of appraisal herein.
    By chapter 291 of the Laws of 1889, as the same was amended by chapter 314 of the Laws of 1890, the city of Syracuse was authorized, under certain restrictions and conditions, to take water not required for the Erie canal from Skaneateles lake and to conduct the same to the city by means of a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying the inhabitants of that city with water.
    One of the conditions upon which this privilege was granted was that the city, before taking any water from the lake, should increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its watershed. This requirement the city proceeded'at once to fulfill) and to that end, in the’year 1893, it caused a dam to be erected at the outlet of the lake which, it 'is conceded, was of sufficient height to retain all the water in the lake which, under ordinary circumstances, would be contributed by its watershed.
    Another condition of the legislative grant was that before taking any water from the lake the city should acquire or extinguish all water-power rights upon the outlet of the lake which were liable to be affected by the proposed storage of water. This provision it also took steps to comply with by instituting condemnation proceedings to extinguish such water rights as it was unable to acquire by purchase, the customary petition therein having been filed on the 3d day of December, 1892. Thereafter the defendants herein filed a duly verified answer to such petition, which, among other objections, averred that the petition did not set forth “ A specific description of the property to be condemned, and its location, by metes and bounds, with reasonable certainty.”
    These objections were all overruled at Special Term, and a judgment of condemnation was rendered, the same being entered in the clerk’s office of Onondaga county on the 28th day of January, 1893, and commissioners were thereupon appointed to appraise the condemned- property, before whom a full and extended hearing was had.
    On the 7th day of May,, 1894, the commissioners filed their report, which was duly confirmed on the nineteenth day of the same month. Shortly thereafter the awards of the commissioners were duly deposited, and the city took possession of the property condemned, and has ever since retained the same. Subsequently, and on the 29th day of May, 1895, the judgment of condemnation and the order of confirmation were reversed by the General Term, upon the ground that the petition did not sufficiently describe the property to be condemned; but leave was at the same time given the city to apply at Special Term for an order amending its petition. (City of Syracuse v. Stacey, 86 Hun, 441.)
    Pursuant to such order application to amend the petition was duly made and granted on the 9th day of September, 1895, and such proceedings were thereafter had that a second judgment of condemnation was entered on the 8th day of January, 1896, and other commissioners were duly appointed, before whom many hearings were had and a vast amount of evidence was given.
    On tjie 1st day of March, 1898, the report of the commissioners last appointed was filed, and the same was subsequently, and on the seventh day of May of the same year, confirmed; and from such order of confirmation this appeal is brought.
    The appellants do not claim that the plaintiff has not proceeded regularly under the act of 1890; on the contrary, it is expressly conceded that in both its petition and in its judgment it has conformed fully to the provisions and requirements of that act, so far as this proceeding is concerned, the sole ground of error upon which this appeal is founded being the adoption by the commissioners of an erroneous principle of valuation.
    
      Charles A. Hawley, Edwin Nottingham and George Barrow, for the appellants.
    
      Charles L. Stone, for the respondent.
   Adams, J.:

At the time this proceeding was inaugurated Syracuse was a city of about 100,000 inhabitants and situated nearly seventeen miles northeasterly of Skaneateles lake. This lake is"a,body of fresh water some fifteen miles in length, having a general width of about one mile and a surface area of nearly or quite thirteen and one-quarter square miles. Its level is much higher than that of the city of Syracuse, and it is a suitable and desirable source from which to obtain water for that city and its inhabitants.

The tributary watershed of the lake covers about six square miles, exclusive of the surface of the lake, the outlet of which flows in a northerly direction and discharges into Seneca riyer. Upon the banks of the outlet are located the mills and premises of the defendants and also of several other parties, the waterpower rights appurtenant thereto being the rights referred to in the act of 1890.

In 1815 or 1816 one Thomas Gibbs obtained by grant from the riparian proprietors on the lake the right to raise or pond the lake or “ keep up the water * * * to about the height of six feet to the top of a certain rock with a circle marked thereon at the west end of the bridge across the said outlet, being for the use of mill purposes,” and in pursuance of the right thus acquired a dam was constructed, the spillway of which was at the same height as the stone monument. In due course of time Gibbs or his grantees erected on the lands immediately below the dam mills and other manufacturing establishments, all of which were operated by the water furnished by the dam. In 1843 the title and rights of Gibbs had become vested in three, individuals named David Hall, George F. Leitch and Warren Hecox, and on the twenty-ninth day of June, in that year, the State, by resolution of the Canal Board, appropriated the water of Skaneateles lake and its outlet for a reservoir and feeder to the Erie canal and thereupon took possession of the lands of Hall, Leitch and Hecox, including the dam which had been erected at the outlet, and placed gate-tenders in charge thereof who acted under the orders of the agents of the State in the use of such gates and in supplying water by means thereof.

The owners of the property thus taken filed their claims against the State .and were ultimately awarded about ■ $30,000 thereon, but no claims were made by and no damages were at that time paid to any other riparian owners.

In 1868 the State rebuilt the dam, but instead of increasing its height, lowered the bed of the lake or stream under the dam about two and one-half feet, thereby securing that additional amount of water. In 1892 the State closed the gates of the dam, in consequence of which no water flowed down the outlet, and thereupon several of the ■ lower riparian proprietors filed claims against the State for damages sustained by them, by reason of such obstruction or withholding of the waters of the outlet. One of these claims was dismissed by the Board of Claims, whereupon an' appeal was taken from the decision of that body to the Court of Appeals, where it was held that inasmuch as the State had not paid for the permanent appropriation of the rights of these owners, it was liable for such temporary damage as they had sustained. (Waller v. State, 144 N. Y. 579.)

In 1893 the city of Syracuse, as has already been stated, erected a new dam, the spillway -of which is two and one-half feet higher than the stone monument mentioned in the deed of Gibbs, and two-feet higher than any dam which had been previously maintained at that point. The effect of this increase in the height of the dam. was, of course, to withhold from the lower riparian owners water which had formerly passed down the stream and by their respective premises. In short, the city diverted the water of the lake to such an extent as to deprive the defendants of the power which had theretofore been of great utility and importance to them; and it was to determine the fair and reasonable value of the interests or properties thus appropriated that the commissioners were appointed.

By the judgment entered in this proceeding it was, among other things, adjudged:

First. That the rights and property described in the amended petition were necessary for the public use therein mentioned; that upon making compensation therefor the plaintiff was entitled to take and hold for such, public use the right and authority to increase the storage capacity of Skaneateles lake sufficiently to store therein all the ordinary flow of its watershed and to withhold the same from the outlet thereof and all the rights of the defendants and every of them to the discharge of the waters of the lake into, and the flow of such waters through, the outlet, over and contiguous to the respective parcels of land referred to.

Second. Also all water-power rights of the defendants and every of them upon the outlet of Skaneateles lake, arising out of their respective ownership of, lien upon, or .other interest in the several parcels of land referred to.

Third. Also the right to divert and withdraw from the lake and the waters to be stored therein such and so much of the water as from time to time the uses of the city and its inhabitants may require arid as may be lawfully taken therefor.

Thus it will be seen that the judgment permitted the plaintiff to deprive the defendants of any of the waters flowing from the lake into the outlet; and as it had availed itself of this privilege the important question to be determined was the amount of damage sustained by each of the defendants in consequence thereof. To ascertain this, much evidence was given which tended directly or indirectly to define the measure, extent and' value of the defendants’ respective water-power rights, and upon such evidence the commissioners arrived at, certain conclusions and awarded compensation to the parties interested upon the basis of the difference in value of the affected properties with and without the rights condemned; and herein it is alleged consists the uerror complained of, the contention of the appellants’ counsel being that the principle adopted furnishes compensation by way of consequential damages only, and not for the property actually taken. In other words, it is insisted that the defendants, together with the other riparian proprietors on the outlet of Skaneateles lake, are the owners in perpetuity of a complete reservoir, capable of storing therein all the yield of the watershed» of Skaneateles lake; that such reservoir is property possessing a marketable value, capable of ascertainment, and that by virtue of this proceeding the same has been acquired by and the title thereto-vested in the plaintiff.

It is, undoubtedly, now well established that the principle upon which compensation shall be made to the owners of land taken in-virtue of the right of eminent domain is, that the owner shall receive the full value of the land appropriated, and also a fair and adequate compensation for any injury which may result to premises-not actually taken. (Newman v. Metropolitan Elevated R. Co., 118 N. Y. 618; Bohm v. Metropolitan Elevated R. Co., 129 id. 576; Bookman v. N. Y. E. R. R. Co., 137 id. 302; 10 Am. & Eng. Ency. of Law [2d ed.], 1164.)

It is equally well settled that in order to ascertain the value of property taken for public use, the owner is entitled to have such, property considered with reference to its adaptability for any and all uses to which it may be devoted. (Boom Co. v. Patterson, 98 U. S. 403; Matter of N. Y., L. & W. R. Co., 27 Hun, 116; Matter of Gilroy, 85 id. 424; Benham v. Dunbar, 103 Mass. 368; Gardner v. Brookline, 127 id. 358.)

Thus, if the property consists of lands in such close proximity to-a flourishing city as to be capable of division into city lots, or if it be land which possesses peculiar advantages for railroad purposes,, or if it be so located as to be desirable for a mill site, or if. its.soil-is especially adapted to the cultivation of some valuable product,, these and other like -circumstances are to be taken into account as-proper elements entering into the question of value.

This case, however, is in a certain'sense'sui generis, for the plaintiff is not seeking to acquire .land, nor, from the standpoint from, which we are now considering it, any property of a tangible character. Indeed, it is property to the corpus of which the appellants can lay no claim, for, at most, their title is confined to an usufructuary light therein. As was said by the Court of Appeals, in speaking of this very stream: It is a principle, recognized in the jurisprudence of every civilized people from the earliest times, that, no absolute property can be acquired in flowing water. *1 * * While the right to its use 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.” (Opinion of O’Brien, J., in Sweet v. City of Syracuse, 129 N. Y. 316, 335.)

If, then, the property appropriated by the plaintiff is not land, but something of a temporary and transient nature which was appurtenant to land, what better or more equitable principle could be adopted to ascertain its value than the one selected by the commissioners in this case?

The water flowing down the outlet possessed no market value to the defendants when withheld or diverted from its natural course; on the contrary, it was only when available to them as a source of power that it became useful and enhanced the value of their respective properties. If,-then, the defendants are deprived of .this valuable appurtenance it would seem that the only correct measure of the damage occasioned thereby is the difference in the market value of their lands with and without the same. (10 Am. & Eng. Ency. of Law [2d ed.], 1164; Dwight v. Elmira, C. & N. R. R. Co., 132 N. Y. 199; Matter of Thompson, 85 Hun, 438; Matter of City of Rochester, 40 id. 588; Matter of N. Y., L. & W. R. Co., supra; Black River & M. R. R. Co. v. Barnard, 9 id. 104; Miller v. Windsor Water Co., 148 Penn. St. 429; Lee v. Springfield Water Co., 176 id. 223.)

In the case last cited the rule applicable to the question here under consideration was thus stated:

The true measure of damages to be applied in all cases of a taking by virtue of eminent domain is involved in no doubt. It is easy of application. It is the depreciation in value of the property affected by the taking. Where land is taken this has been said so frequently that it would be a work of supererogation to cite the cases in which the doctrine has been stated and applied. It was applied in Miller v. The Windsor Water Company (148 Pa. 429), where, as in this case, a water company had appropriated water and' a lower riparian owner complained that he was injured by the appropriation. It is the proper measure of the plaintiffs’ damage in this case. The jury should inquire what the property affected was fairly worth immediately before the water was appropriated and what it was worth as affected by the appropriation. The difference, if any is the loss actually sustained, and, theref ore, the measure of the plaintiffs' right to recover damages.” (Lee v. Springfield Water Co., supra, 226.)

If, then, as we conclude is the case, a correct rule was adopted as regards' the damages sustained by the riparian proprietors, by reason of the extinguishment of their water-power rights on the outlet, there remains to be considered another and, as counsel seem to think, a far more important question, viz., the ownership of the reservoir and water stored or impounded therein. ■

If we correctly apprehend the position taken by the learned counsel for the several defendants, it is that the property appropriated by the.plain tiff in pursuance of the statutory authority conferred by the act of 1890, is {first) the water-power rights on the outlet created by the yield of the watershed; {second) the right to divert all such yield; {third) a storage reservoir with the undisputed right to store therein all the water yielded by the watershed; and that the sum total of these three classes of property is the' water actually stored in the reservoir. In brief, the defendants lay claim to the lake itself, and assert that it belongs to them in common with the other riparian proprietors; that it has value for manufacturing, municipal- and other purposes, and that, consequently, it is property for the value of which, for any purpose for which the same is available, the defendants are entitled to compensation. The full measure of this particular feature of the defendants’ claim was sought to be established by evidence which tended to show the extent of the area of the watershed of the lake and its character, the ordinary or average amount of rainfall thereon and the proportion or percentage of the rainfall-which should be expected to find its way into the lake. If it is to be assumed, as very properly it may be, that the lake by reason of the dam maintained at its outlet had a much greater storage capacity than formerly, and that in consequence, the flow of water therefrom was regulated and controlled in such manner as to greatly benefit the mill owners upon the outlet, we yet fail to. see upon what theory it can be asserted that the defendants acquired title to either the reservoir or its contents, in the sense that they, even with the concurrence of all the other riparian proprietors, could exercise absolute and exclusive control over or sell the same.

Certainly Gibbs never acquired any such right and title, and if he did, the-defendants did not succeed thereto, because whatever right or title lie did acquire was condemned by the State. The most, therefore, that can be said, as we view it, is that Gibbs, as early as 1816, by some arrangement entered into between him and the riparian proprietors on the lake, acquired the right to erect and maintain ■a dam, the effect of which was to raise or pond the water in the lake some six feet above its former level, and that the right thus acquired was acquiesced in by all the lower riparian owners. But what was the purpose of this dam % It surely was not to withhold or divert the water from its natural course; on the contrary, it was to secure more water and to so regulate and control its flow as that it would be constant and equal from one end of the year to the other, and such it seems was its effect; for the undisputed evidence is that the watershed of the lake yielded a sufficient quantity of water to permit a discharge into the outlet of at least 7,000 cubic feet every minute of the day in every day of the year. It is not surprising that, in these circumstances, there was no objection raised by any one to the dam, for it was of enormous advantage to the water-power rights on the outlet, which theretofore had doubtless been subjected to the inconveniences and annoyances of occasional meteorological variations. But notwithstanding the presence of the dam the water in the lake was constantly moving in one direction; its flow was never arrested save for the use of the riparian owners along the stream; it still had none of the ordinary attributes of property and it was not the subject of exclusive dominion or control; for as was said in a comparatively recent case in which the right to the waters of another inland lake was involved : “ Neither sovereign nor subject can have any greater than a usufructuary right therein, and even this is subjeef-to the temporary enjoyment by the riparian proprietors over whose lands • it passes while on its way to its final destination,, undiverted and undiminished, save for domestic or manufacturing purposes.” (Smith v. City of Rochester, 92 N. Y. 463, 480.)

- We have said that this case,-so-far as this'particular feature of it is concerned, is suigenerisj and such is. undoubtedly ‘the fact; for certain it is that patient investigation upon the part of both counsel and court has thus far failed to discover in.the reported cases.-one which is similar to it. In these circumstances, therefore, the .present case must be disposed of upon principle unaided -by authoritative-precedent, and we can conceive of no reason- why the principles applicable to running streams of water should not be controlling here. -.

• No one, we assume, would claim for a moment that the defendants, or any. of them, would have any right to construct a reservoir and detain and.store the waters of the outlet therein to the prejudice-of other parties, for that would violate a well-established principle-of law. (Clinton v. Myers, 46 N. Y. 511.) And if this cannot; be done we fail to see upon what principle such water could be stored and detained before reaching the outlet. -

If it be said that this could be done by the concurrent action of -all the riparian proprietors on the outlet, it might be' asked what is-to become of the rights of similar proprietors upon Seneca river into which the outlet empties, whose water powers would unquestionably be materially diminished, by the diversion of the waters of Skaneateles lake?

-From whatever standpoint the question is considered, we think but one conclusion can be reached, which is that, whatever right or ownership the appellants had in the lake was limited to the storage of water for their use and accommodation, in common with other riparian owners upon- the outlet, and that, consequently, upon principle* it must be held that the rights and privileges of ripariap proprietors, upon both lake and outlet are the same; that -neitliW. .have‘.any ownership in the corpus of the water or the right (o permanently retain, withhold or. divert the same; but that, on the contrary, both-alike are bound to : deliver the waters passing over their respective-premises without any unnecessary diminution to the lower proprietors. (Gould on Waters [2d ed.], § 204; Pixley v. Clark, 35 N. Y. 524; Sweet v. City of Syracuse, supra; Clinton v. Myers, supra.) And if this be so, then the commissioners were clearly right in withholding damages from the defendants for property actually-appropriated.

Exception'is also taken by the appellants to the exclusion of evidence which it is claimed tended to establish the capabilities, earning capacity and productiveness of the various parcels of property condemned, particular stress being laid upon the refusal of the commissioners to receive evidence of profits earned by some of the appellants in their business. We do not think the rejection of this class of evidence was improper, for although, as has already been said, in determining the market value of property taken for a public use, it is proper to consider such property with reference to any and all purposes to which it .may be devoted, yet an inquiry as to the profits which have been or may be realized from some particular business would have but little, if any, legitimate bearing upon the question of value, for the reason that the profitable or unprofitable conduct of all business is generally dependent upon a variety of causes, such as the location of the property, the enterprise, judgment and business skill of the owner, not to mention several other elements which will readily suggest themselves. (Langdon v. Mayor, etc., 59 Hun, 434; affd., 133 N. Y. 628; Newton v. Armstrong, 19 N. Y. Supp. 573; Matter of Gilroy, 26 App. Div. 314.)

In the case, first above cited it was said in the opinion delivered by the court of last resort that “If the sovereign power, in the exercise of the right of eminent domain, could take the property of the citizen at a valuation based upon the net income realized from it, it is feared that a very large part of the farm property of the State ‘ could be acquired by it- at a purely nominal consideration; hut it is the potentialities of a given piece of property, both developed and undeveloped, which constitute its chief ■element of value.”

But - having determined the paramount questions in the case adversely to ■ the appellants’ contention, it is hardly worth while to dwell longer upon those which are merely incidental thereto, and, therefore, of minor importance only ; for it is a rule well established and seldom departed from that where, in a proceeding of this nature, commissioners have adopted a correct principle in determining the value of the property condemned, an appellate court will not interfere with their.report upon the mere question of damages, .unless the amounts awarded are. palpably unjust* the theory of the Condemnation Law being that commissioners,. in the performance of ■ their "duty, shall be untrammeled by technical rules of evidence and ^unrestricted as to their sources of information. In short, that in ^reaching a conclusion as .to the. value of a given piece of property They shall be guided by their own judgment and experience, rather than by the opinions of witnesses. (Matter of City of Rochester, 40 Hun, 588; Matter of Staten Island R. T. Co., 47 id. 396; Matter of Thompson, 85 id. 438; Matter of Thompson, 127 N. Y. 463.)

In this particular instance we are unable to see why the awards . made were not ample and .even liberal, and this being: the case, it follows that within the rule just adverted to they ought not to- be disturbed.

All concurred, McLennan, J., not sitting.

Order of confirmation affirmed, with costs against the • several appellants appearing by separate attorneys.  