
    In the Matter of the petition of Rollin M. Squire for the appointment of Commissioners of Appraisal under Chapter 490, Laws 1883.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Eminent domain — New York aqueduct — Damages to contiguous PROPERTY.
    An owner of lands which is contiguous to the aqueduct, the only injury to which is the noise, dust and smoke made by the building of the aqueduct, cannot recover damages therefor. Such damage is not within the act.
    2. Same.
    Injuries to water rights, such as streams diverted and wells drained by the construction of the work itself, although the stream was not needed, nor the well intentionally drained, and similar damages only were intended, to be embraced in the damages payable to owners of contiguous property under the act of 18:3.
    Appeal by Asbury Lester from order confirming report disallowing his claim.
    The claimant’s land was not taken for the aqueduct, but upon an adjoining plot is erected a building in which is the machinery for working the shaft, and the claim is made that the unremitting noises and vibrations of the machinery and the dirt, dust, soot, smoke, odors, etc., have rendered the claimant’s premises untenantable.
    
      George C. Coffin, for app’lt; Wm. H. Clarh (William A. Sweetser, of counsel), for resp’t.
   Barnard, P. J.

The appellant, Asbury Lester, presented a claim for damages to his property in the city of New York, con tiguous to lands actually taken for the purpose of a public aqueduct, under chapter 490, Laws of 1883.

The Lester property, for which the damages were claimed, was not a part of a lot taken, but was only adjacent after the land of other owners was taken.

The act requires the commissioners of public parks to make maps on which shall be numbered the various parcels of land, “ on, over or through which the same are to be constructed and maintained, or which may be necessary for the prosecution of the work authorized by'this act.” Sec. 4.

Commissioners appointed to appraise the damages are “ to ascertain and appraise the compensation to be made to the owners, and all persons interested in the real estate laid down on said maps as proposed to be taken or affected for the purpose indicated in this act. Sec. 8.

By § 11 the commissioners are to report such damages to the court. The act provides that the owner of lands contiguous to land taken which may be affected by the construction and maintenance ” of the aqueduct and its appurtenances, may present a bill for his damages.

The question therefore is, whether an owner of land whose lands are contiguous to the aqueduct, and whose only injury to his land is the noise, dust and smoke made by the building of the aqueduct, can recover damages ? Such damage, we think, is not within the act.

The language is similar to that used in the general railroad act.

The railroad company was authorized to obtain a title to lands, and compensation was to be made for the title. The rule of damages established by this act was held to be the value of the land taken, and the diminution of value occasioned by the taking for the piece remaining after the railroad strip was taken in addition. Ex parte Poughkeepsie & Eastern Railroad, 63 Barb., 151; Black River, etc., R. R. Co. v. Barnard, 9 Hun, 104; New York, etc., R. R. Co. v. Arnot, 27 id., 151.

The aqueduct case increases the area of damages, but not so as to take in the appellant’s claim.

The act provides that water rights may be taken, and the construction of the aqueduct may interfere with, injure or destroy water rights, such as streams diverted and wells drained by the construction of the work itself, although the stream was not needed nor the well intentionally drained. This and similar damages are intended to be embraced in the clause of § 18 of chap. 490, Laws of 1883, which provides for payment to “ any owner or person interested in real estate contiguous thereto,” after providing for damages for lands taken.

If the work of building the aqueduct was properly done under legislative authority, the city was only liable for acts done unskillfully or negligently. Bellinger v. N. Y. Central R. R., 23 N. Y., 42; Moyer v. N. Y. C. & H. R. R. R., 88 id., 357.

The finding of the commissioners that the claim of the appellant is not within the act is therefore affirmed, with costs.

Dykman, J., concurs.  