
    Benjamin E. Hall, Appellant, v. The State of New York, Respondent.
    
      Condemnation of land — what continuity of use of a dam is sufficient to establish a preemptive right to flood land, and is inconsistent with an intention to abandon that right—increase of an award by the Court of Claims.
    
    Where the-owners of land on the Saranac river have for upwards of fifty years maintained a dam across the river which, at all times when it suited their convenience to do so, set the waters of the river back upon the adjacent property of other owners, the validity of the prescriptive right thus obtained to flood the adjacent uplands is not aflected by the fact that-the flooding has not been . absolutely continuous during all that 'time because of breaks and leakages in , the dam, and because the water has been let out of the dam at certain times for the purpose of floating logs into the river below, where it does not appear that these periodical cessations in the continuity of the flooding were made with the intention of abandoning the right to do so, or were the result of any act or interference on the part of the owners of the flooded uplands.
    
      Qucere, as to the right of the Appellate Division, upon an appeal from a judgment of the Court of Claims, to modify such judgment by increasing the ' award.
    Appeal by the plaintiff, Benjamin E. Hall, from 'a 'judgment, of the Court of Claims of the State of New York in favor of the plaintiff for $2,958.80, entered in the office of the clerk of said court on the 15th day of September, 1903, the amount of. the award being claimed by the appellant to be insufficient..
    
      
      Walter B. Safford and Frederic It. Kellogg, for the appellant.
    
      John Gwnneen, Attorney-General, and S. 8. Ta/ylor, for the respondent.
   Chester, J.:

The claimant and his sister, Ermina P. Hall, were owners of certain lands on both sides of the Saranac river. About sixty acres of these lands, including an undeveloped water power thereon, were appropriated by the State, pursuant to chapter 627 of the Laws of 1898. Such appropriation was made on the 13th day of December, 1898. The owners and the State were unablé to agree upon the value of the property so appropriated or on the amount of damages resulting therefrom. Ermina P. Hall thereafter assigned to the claimant all her interest in the' claim for damages for such appropriation, and under the law the claimant presented the claim to the Court of Claims for determination. The case has been twice tried by that court. Upon the first trial the claimant was awarded $2,000 damages for the land appropriated. An appeal was taken from that judgment to this court, where the judgment was reversed upon the ground that the Court of Claims adopted an erroneous basis of value in fixing the damages. (Hall v. State of New York, 72 App. Div. 361.)

One of the questions involved in the former appeal was whether the owners had acquired by prescription the right to erect a dam at the place in question, which would set the water of the stream back and thereby overflow lands belonging to others, and it was decided that they had acquired such right, and that such a right was appurtenant to the lands and passed under a conveyance thereof. It was also decided that the claimant had not, by nonuser, lost such right and that the evidence showed no intention to abandon it.

The case has been again tried by the Court of Claims, and, notwithstanding the former decision of this court, upon evidence not essentially different from that on the former trial, but covering more completely the questions presented, that court has held that the claimant and his predecessors in title had acquired no prescriptive right to maintain a dam for the entire year, but for only eight months of the year, and that without the right to maintain the dam for the entire year the claimant had no merchantable water power which could be made the basis of. damages. Nothing was,, therefore, awarded him for the water power. This appears to be squarely in the face of the principle established by this court upon the former appeal, and which, until reversed, must stand as the law of the case. _ '

Without attempting to review the evidence it is sufficient to say ■ that to our minds it shows clearly that for upwards of fifty years the predecessors in title of the claimant- and those acting with them had maintained a dam at the place in question nine and one-half feet high which set the waters back upon the adjacent property of other owners at all times when it suited their convenience tó do so. While the evidence does not show that the flooding had been absolutely continuous during all of that time because of breaks and leakages in the dam and because of letting the water out of the dam at certain times to float logs in the river below, it does show that these persons exercised the right to overflow the lands during that time' at will. There is nothing in the evidence that these periodical cessations in the continuity of the flooding showed any intention of abandoning the right to flood whenever they desired. Nor did'such cessation come from any act or interference of the owners of the uplands. ■ The-fact of flooding and of impounding the waters and of their use. appear to have been dependent wholly upon the pleasure and will of the owners and of the persons operating the dam by their leave. Under such circumstances there is no interruption in the continuity of the user or abandonment of the right to use. Non-user does not affect the right to the easement- unless the circumstances show an inference of abandonment. There must be an overt act indicating that the right is disturbed. (Jones Ease. § 189 ; Washb. Ease. [4th ed.] 170-172.)

It is said in the American and English Encyclopaedia of Law (Vol. 28 [1st ed.], 1009) .that “ the adverse use in order to ripen into prescriptive right must be continuous during the whole period. But this does not mean that it must be constant in the sfense of daily use. When one uses the water whenever he sees fit without asking leave or without objection, the use is sufficiently continuous and a grant may be presumed.”

The same principle is held in numerous other authorities. (Cornwell Mfg. Co. v. Swift, 89 Mich. 503; Messinger’s Appeal, 109 Penn. St. 290; Bodfish v. Bodfish, 105 Mass. 317; Hesperia Land, etc., Co. v. Rogers, 83 Cal. 10; Garrett v. Jackson, 20 Penn. St. 331.)

, While the questions of non-user and of abandonment were not discussed at length in the opinion upon deciding the former appeal, yet they were involved therein the same as here and necessarily entered into the decision there made, which was adverse to the contention of the State. The evidence upon these questions, while of much greater length on the last trial than on the first, is not materially different from that considered by the court upon the former appeal, where it was decided that the claimant had a prescriptive right to maintain his dam and to overflow the uplands. That decision must control the determination of this appeal.

The inconsistency of the State is clearly shown in its insisting that the claimant has no prescriptive right in order to reduce the compensation it should make to him, and then after taking his property away from him for a public use in proceeding at once to the erection of a dam at the place in question without any right whatever to do so, other or different from that possessed by the claimant or his predecessor in title. At the time it took his property the prescriptive right which the claimant had to maintain a dam there was a property right for which he was entitled to receive just compensation. That has been denied him in the court below and he has simply been awarded what his property was worth per acre for camp sites.

There was testimony that the dam, the reservoir made thereby and the water power were valuable for storage of water for uses below on the river, for generating electricity, for saw mill and for other manufacturing purposes. Several witnesses as to value testified on behalf of the claimant. One expert witness, who had been a former State engineer and surveyor, valued the right to build a dam nine and a half feet high and of the water power that would be produced by such a dam at the time of the appropriation by the State at the sum of $30,000. That estimate of value was, to a considerable extent, based upon the belief that there was a market in that vicinity for electricity that could be generated by such a water power. There is no very satisfactory evidence on behalf of the State in this record in denial of the fact that there was such a market. . Upon another trial, however, it may appear more clearly just how much of a market is accessible there and how much competition would be met in that neighborhood in the sale of electricity or of electric power.

■ "While we may have the power to modify a judgment by increasing the award made by the Court of Claims, upon findings of that court justifying such' increase (Sayre v. State of New York, 123 N. Y. 291), we do not think that in a case where there are no findings and where the evidence might be materially changed upon another trial we should do that.

The judgment should be reversed on the law and on the facts and a new trial granted in the Court of Claims, with costs .of the appeal to the claimant.

All concurred.

Judgment reversed on law and facts and new trial granted in the Court of Claims, with costs of the appeal to the claimant.  