
    Benjamin E. Hall, Appellant, v. The State of New York, Respondent.
    
      A right to erect a dam, may be acquired by prescription—it passes under a conveyance of the land — it is not lost by six yean'd nonuser:—measure of compensation where it is taken by right of eminent domain. '
    A riparian owner of -land on a stream may acquire, by prescription, the right to erect a dam which will set hack the water of the stream and thereby overflow lands belonging to others.
    The right thus acquired is appurtenant to the land and passes under a conveyance thereof.
    Where the right to maintain the dam has been established by a prescriptive use extending from 1848 to 1892, the fact that for a period of some six years, between 1892 arid 1898, at which latter date the property was appropriated by the State, the dam has been suffered to fall into decay and has not since been repaired, does not establish an intention to abandon the right.
    An estimate of the valué of the right to erect the.dam, based upon the single ground that its appropriation by the State deprived the owner of a chance to sell it to persons owning property higher up on the stream, was held to be erroneous.
    Appeal by the plaintiff, Benjamin E. Hall, from a. judgment of the Court of Claims in favor of the plaintiff, entered on the 9th day of October, 1901, awarding him the sum of $2,441.76 for .certain property appropriated by the State under and in 'pursuance of chapter 627 of the Laws of 1898. The actual value placed by the court upon the property is $2,088.76. The remainder is interest on that sum. The appeal is taken on the ground among others that the award is insufficient.
    
      Frederic F. Kellogg and Walter F. Safford, for the appellant.
    
      George U. Stevens and John 0.'Davies, Attorney-General, for the respondent.
   Fursman, J.:

It appears from the record that independently of the water power, which is the chief matter in controversy, the State appropriated 59.176 acres of land of the claimant which the court found to he of the value of $1.50 per acre, or a total value of $88.76. It is thus made to appear that the value put upon the water power is $2,000. The court, however, did not allow anything for the water power as such, but on the theory that owners of land above on the stream might wish to purchase it concluded that the chance of being able to sell it was worth $2,000 to the claimant and, therefore, allowed that sum for the loss of the opportunity to sell, if it should ever occur. Where lands are taken under the right of eminent domain the general rule is that compensation is to be made to the extent of the actual value of the land taken and the diminished value of the remainder, if any. There is no rule of compensation such as that which seems to have been adopted by the Court of Claims in estimating the value of this water power. In this case the entire property of the claimant was appropriated and the only question is whether a fair and just value for the water power was awarded.

As far back as about 1848 there was an eight or nine-foot dam at this place which set back the water to and into Saranac lake and its tributaries. In 1880 a portion of it was destroyed by fire, but it continued to hold the water back until four or five years before the trial, which was had in 1900, so that it was effective as a dam until 1892, or perhaps a year or two later. The place where it was situated is peculiarly well adapted to the erection and maintenance of such a structure, and the State in pursuance of the act of 1898 (Chap. 627) has erected a seven-foot dam there. A dam site is of no value as such unless it can be utilized, and hence the decision of the Court of Claims by awarding $2,000 to the claimant for this property on the ground that the State has deprived him of the chance to sell it as and for a dam site necessarily concedes that the claimant had the right to occupy it • for that purpose. The question then arises whether the claimant had the right to erect a dam that would set the water back into Saranac lake and its tributaries, and thereby overflow intermediate lands belonging to others. That such a right can be acquired by prescription is well settled. (Hammond v. Zehner, 21 N. Y. 118; Wash. Ease. & Serv. [3d ed.] 372; Baldwin v. Calkins, 10 Wend. 169.)

The evidence established the existence of a dam at this place from 1848 to 1892 of sufficient height to set back the water into Saranac lake. In. this State the time necessary to acquire an easement by prescription is twenty years, so that it appears that when the claimant’s immediate grantors conveyed to him the maintenance of this dam, with its consequent effect of setting back the water to the lake, had ripened into a right. . Such right was appurtenant to the land and was necessarily conveyed with it. Having thus acquired' the right to maintain a dam at this place, it has not become lost by suffering it to fall into decay and remain unrepaired since 1892.. The question of abandonment is one of intention, and a mere suspension of the exercise of a right is not sufficient to establish an intention to abandon it. (Wash. Ease. & Serv. [3d ed.] 669. See Corning v. Gould, 16 Wend. 535.) The right to maintain a dam of sufficient height to set back the water into Saranac lake being thus established by prescription, and not lost by nonuser between 1892 and the appropriation of the property by the State in 1898, the claimant could have reinstated it and could rightfully have employed the water stored by it to any use to which the property was adapted. (Matter of Furman Street, 17 Wend. 670; Boom, Company v. Patterson, 98 U. S. 403.) The court below placed its estimate of the value of this property upon the single ground that its appropriation by the State deprived the owner of a chance to sell it to persons owning property above on the stream, but the evidence shows that it could be put to other profitable and valuable uses. The basis of value adopted by the Court of Claims was, therefore, erroneous, and inasmuch as there was important evidence showing the value of the property for the purpose to which the claimant might have applied it, and in view of the changing and improving conditions of the surrounding country, would have probably applied it in the near future and which gave it a value largely in excess of the sum allowed,, the judgment is reversed and a new trial granted.

All concurred.

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