
    In the Matter of the Application of The City of Buffalo, Respondent, to Acquire Lands under the Waters of the Buffalo River for the Purposes of a Public Highway. Charles E. Appleby, as Surviving Trustee of the Ogden Land Company, Appellant.
    Fourth Department,
    December 28, 1906.
    Eminent domain —condemnation of bed of Buffalo river — when owner entitled to compensation.
    The ownership, of the fee of the bottom of the Buffalo river has more than a nominal value and cannot be taken by eminent domain without just compensation. Such property may acquire great value in the future and the title of the owner therein cannot he taken for a nominal sum,
    
      Appeal by Charles E. Appleby, as surviving trustee, etc., from an order of'the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8tli. day of January, 1902, confirming the report of commissioners appointed to ascertain the just compensation for the taking of the fee of the bed of the Buffalo river between the Buffalo Creek Indian Reservation line and the easterly line of the city- of Buffalo. If was determined that six cents was the value of the river bed as it winds and'turns between the points above indicated; and. .also from an order entered on the 17th day of February, 1902, denying a-motion' to set aside said report and order of confirmation.
    
      Edmund P. Cottle and O. O. Cottle, for the appellant.
    
      Samuel F. Moran and Louis E. Desbecker, for the respondent.
   McLennan, P. J.

This proceeding was commenced, so far as the appellant is concerned, by notice served by the corporation counsel of the city of Buffalo to the effect that oh the 3d day of June, 1901, application would be made for tlie appointment of three commissioners to ascertain the just compensation to be made to the owners of or persons interested in the property sought to be acquired, and pursuant to such notice, on June 5,1901, commissioners herein Were appointed. Previous thereto the board of aldermen of the city of Buffalo had.adopted a resolution, as it is claimed pursuant to title 20 of the revised city charter, indicative of its intention to acquire the property in question, and thereafter declared by resolution its'intention to take the same under the provisions of the charter.- Pursuant to the notice for the. appointment' of commissioners the appellant appeared, but failed to raise any question as to the regularity of the proceeding) and, therefore, we think, is estopped from raising any such objection upon tins appeal. (Matter of Cooper, 93 N. Y. 507.) ,So that it. is considered that the only question presented by. this appeal is the adequacy of the award.

, We think it cannot be reasonably contended that the ownership of the fee of the bottom of the Buffalo river, as described in the petition, and as shown by the map which is a part' thereof, is not as to the owner a valuable property. It is hardly useful to speculate as to the uses to which the property might not be put which would not in any manner interfere with the use acquired by the public. A change in the river’s course, might be effected which would improve its use as a public highway and yet leave many acres of land dry and free from the overflow of such river, and which might be of great value to the owner. So, again,-many structures might be erected crossing such river which would require the consent of the owners of the fee, bnt which would in no manner affect its use as a navigable stream, if it may be so denominated. The evidence indicates that the course of the river in question from the earliest times has been changing; that portions occupied by such river in the past have since become some of the most valuable property in the city. It seems probable from the evidence that such change may take place in the future, and if so, the owner would have a considerable amount of land belonging to him which would not be subject to overflow and which he might sell the same as any other owner of property. We think the citation of authorities is unnecessary to demonstrate that the appellant was the owner of valuable property which consisted of the bed.of the Buffalo river which the city of Buffalo by this proceeding has attempted to acquire. By the award of the commissioners the property and rights of the appellant have been determined to be of no value ; indeed, thé basis of the order appealed from is that the property of the owner was of no value as to him and, therefore,-that the other party could acquire the same without paying any compensation therefor. We think the determination is abhorrent to justice and to any rule of equity which has been enunciated by the courts in any well-considered case. If the fee to the bed of the river in question is of no value, why does the city of Buffalo seek to acquire the same ? . The evidence shows conclusively that such property is valuable; the. exact value may be difficult to determine, but that it is more than nominal is conclusively established. How appellant’s property may be made available or at present valuable does not definitely appear, but that it has an intrinsic value cannot under the evidence be doubted. By this proceeding and by the award it is practically asserted by the city of Buffalo that it wishes to take property from the owner on the theory that it is of no value or use to such owner and to appropriate the same to its own use.' No question of public policy iii involved. There, is no suggestion in . this proceeding; that the city could manage or control the fee of the bed of. the river in such manner as would better protect the citizens of the city or as would better subserve. the general interests of the- public. So far -as' we are informed, the . only purpose of the city is by acquire for nothing a property, .solely upon the ground that such property is of no value to the owner.

The order appealed from should be reversed and new commissioners appointed by the Special Term to determine the compensa^ tian which-should be paid to the owner of the premises in question, with costs to the appellant to abide event.

All' concurred..

1 Order reversed and rehearing ordered before new commissioners to be appointed by the Special Term, with-costs to-the appellant to abide the event. ' ■ - 
      
       See Daws of 1891, chap. 105, as amd.— [Rep,
     