
    William Fitzgerald, Appellant, v. The State of New York, Respondent.
    Third Department,
    November 13, 1907.
    Watercourses — State canals—¡injury to private owners by raising ■feeder level.
    Although the State of New York is entitled to maintain the water of a lake at a certain level for the purpose of feeding State canals, it cannot by raising the.crest of its dam or by negligently operating its gates flood the lands of private owners to their damage, and a claim for such injury should not be dismissed by the Court of Claims.
    
      Appeal by the claimant, William Fitzgerald, from a judgment of the Court of Claims of the State of .New York, rendered on the 18th day of June, 1906, dismissing the appellant’s claim.
    
      Martin F. Dillon, for the appellant.
    
      William S. Jackson, Attorney-General, and Timothy I. Dillon, Deputy Attorney-General, for the respondent.
   Cochrane, J.:

Claimant is the owner of real estate on the westerly shore of Skaneateles lake. Said lake is used as a feeder for one of the canals of the State and a dam at the -mouth of the lake, has for many years been operated by the State for the purpose of regulating the flow of water into the canal. In his claim as filed claimant alleges that the officers or employees of the State caused gates in said dam to be shut so that the water rose above high-water mark as established by the State to such an extent that a stone wall erected by claimant along the easterly side of his premises upon the shore of said lake was washed out and destroyed.

Until recent years the crest of the-dam was level with a point known as “ high-water mark.” It is conceded that the State had the right and it exercised the right to raise the water to that point/; Within a few years, the exact. time does not appear, the dam was raised two feet with the result that unless the gates therein were properly operated the water would rise above said high-water mark.

The only justification for such change in the dam is claimed to exist in chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, which authorized the city of Syracuse to take water from said lake and for that purpose to increase the storage capacity of the lake and to otherwise make the necessary constructions. But there is no evidence that said change was made by or for the benefit of said city nor does it appear from this record that said city ever availed itself of the rights or privileges thus conferred or that the said dam or lake ever experienced any change by reason of such legislation.

The dam and gates were under the control and management of the State. As appears from the evidence on the part of the State the water was permitted by its gatetender at different times to rise and set back against the wall of claimant above the said high-water mark, at one time to the extent of five inches. It is not contended that this was necessary for the proper nse or operation of the canal.

On these undisputed fact's it was error to dismiss the claim. It may be that the evidence was insufficient to make the State liable for the destruction of the wall, but there was clearly an invasion of the claimant’s rights, which could not be disregarded by the learned court below. This judgment erroneously establishes the right of the State to set back the water of the lake against claimant’s property.

On the evidence now before us no question arises as to the relative rights or liabilities as between the State. and the city of Syracuse. On a retrial the facts may be fully developed and a complete • determination reached.

The judgment must be reversed, with costs, and s. new trial granted.

All concurred.

Judgment reversed on law and facts, with costs, and new trial granted. .  