
    Ezra B. Hayden, Resp’t, v. The State, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed May 6, 1892.)
    
    1. Cauals—Appbopbiation of wateb.
    On May 14,1866, the state temporarily appropriated the water of Owasco Lake and Oriskany Creek hy aresolution to that effect. June 19,1867, the state permanently appropriated the water power on Owasco outlet. Plaintiffs, in November, 1867, filed their claim for the water so taken, and March 4, 1870, resolutions were adopted by the canal board defining the quantity of water intended to be permanently taken by the resolution of June 19, 1867, to be 3,600 cubic feet per minute and not of the whole stream, and an award was made for the water taken. February 15, 1879, the state appropriated 368-1000 of an acre and all the water in the raceway crossing it, and this claim for damages was brought, Held, that the state had not, prior to February 15, 1879, taken all the water from the stream, and an allowance of $1,000 for the amount not previously appropriated was right.
    3. Same.
    To make a legal and permanent appropriation of land or water for the use of a canal the quantity must be definitely ascertained and described so that the owner may know how much he has lost and what he is entitled to be compensated for.
    Appeal from an award and order of the court of claims which awarded he claimant for land taken................ $21 49 For water..................................... 1,000 00
    Total................................. $1,021 49
    The state conceded its liability for the land taken.
    
      B. V. Rowland, for resp’t; S. W. Rósendale, att’y-gen., for app’lt.
   Follett, Ch. J.

May 14, 1866, the state temporarily appropriated the water of Owasco and Oriskany creek, under this resolution:

Resolved, That the canal commissioners in charge of the middle and eastern divisions would not only be justified, but, in view of the past and present scarcity of water on the Port Byron and eastern portion of the long levels of the Brie canal, it is their duty to make a temporary appropriation of the waters of the Owasco lake and the Oriskany creek, as provided by the statute.”

A claim for the damages under this appropriation was filed, but no appraisement was made and the damages were afterwards •included in the claim filed after the adoption of the resolution of June 19, 1867.

June 19, 1867, the state permanently appropriated the Port Byron water power on the Owasco outlet, pursuant to the following resolution:

Resolved,- That the map for the permanent appropriation of the Port Byron water power on the Owasco outlet for the feeder to the Brie"canal, this day submitted by the state engineer and surveyor, is hereby approved and the water and lands necessary for said feeder are herebj permanently appropriated.”

November 9, 1867, the Haydens filed their claim for compen■sation for the permanent appropriation of the waters of Owasco creek. March 4, 1870, while the foregoing claim was pending and before it was tried, resolutions were adopted by the canal board defining the quantity of water intended by the resolution of June 19, 1867, to be permanently appropriated, by which it was fixed at 3,600 cubic feet per minute, and not of the whole stream. The following is a copy of the resolutions of March 7, 1870:

Resolved. That the map for the permanent appropriation of the Port Byron water power on the Owasco outlet for a feeder to the Brie canal, this day submitted by the state engineer and surveyor, is hereby approved, and the water and lands necessary for said feeder are hereby permanently appropriated, and, whereas, doubts have arisen as to the extent of such appropriation, therefore,
Resolved. That the water and lands appropriated or intended to be appropriated by this board was and is the water known as the Beach Mill water power, then claimed by the Bank of Auburn, being equal to power for ten run of stone and machinery, ■or equal to a flow of 3,600 cubic feet per minute under the head •of 27 feet with the right and power to keep in repair the 1 Parks dam,’ so called, at the head of the raceway, also the raceway known as the Beach raceway, with the rights and privileges that the said Bank of Auburn had and acquired under said Beach, also the land necessary and as described or delineated on said map to convey the water to the canal from the end of said Beach raceway.”

In June and July, 1870, evidence in Hayden’s case was taken "before the appraisers. March 11, 1871, the appraisers awarded him, as stated by the findings $6,301.23, but as stated by the evidence he was awarded $6,651.23.

November 17, 1871, the canal board increased the award to $8,183.74, which was paid. February 15, 1879, the state appropriated 368-1000 of an acre and all the water in the raceway crossing it Under which appropriation this claim for damages was filed June 23, 1879. January 4, 1882, the canal appraisers awarded $21.49 for the land taken, but nothing for the water. The claimant appealed and his appeal was heard before the board of claims, where, January 14, 1886, the award was reversed, and a rehearing ordered. On the retrial the award now appealed from was made. The only question in this case is whether, under the permanent appropriation of June 19, 1867, the state acquired all” of the water of Owasco creek. If it did, the allowance of $1,000 is wrong; if it did not, it is right.

The attorney-general contends that the state permanently appropriated all of the water of the Owasco outlet by the resolution of June 19, 1867, and that the canal board had no power by the subsequent resolutions of March 4, 1870, to limit the quantity of water taken to “ 3,600 cubic feet per minute under the head of '27 feet,” though the resolution was passed before the damages were assessed. To make a legal and permanent appropriation of land or water for the use of a canal, the quantity must be definitely ascertained and described so that the owner may know how much he has lost and what he is entitled to be compensated for. If the water to be appropriated is described as all in a certain lake or all flowing in a particular stream, such would undoubtedly be a sufficiently definite description. But in this case the resolution did not state that all of the water of the outlet, or that any particular quantity or part of it was appropriated, and the description was too indefinite to effect a legal appropriation. The original attempt to appropriate not being effective, the officers of the state had power by subsequent action to make a definite and permanent-appropriation of a given quantity of water. Under this limited appropriation the claimant’s damages were ascertained and paid, and it would be inequitable to allow the state to successfully assert that the award was for all of the water instead of for 3,600 cubic feet per minute. The report of the canal appraisers (Senate Doc. No. 56) made in 1869 was made before the claim filed November 9, 1867, was tried, the claimant was not a party to it and it "is not binding on him.

The board of claims well decided on sufficient legal evidence-that the state had not, prior to the appropriation of February 15,. 1879, taken all of the water from the stream.

The order and award should be affirmed, with costs.

All concur.  