
    In the Matter of the Petition of Robert Grier Monroe, as Commissioner of Water Supply, Gas and Electricity of the City of New York, etc., to Acquire Certain Real Estate, etc., Situated in the County of Westchester, for the Purpose of Maintaining and Preserving the Supply of Pure and Wholesome Water for the Use of the City of New York, and for the Purpose of Preventing the Pollution and Contamination of the Same, and for the Appointment of Commissioners of Appraisal. The City of New York, Appellant; Thomas Barnard and Others, Respondents.
    Second Department,
    April 23, 1909.
    Eminent domain — condemnation of lands to protect water supply — award for fee of lands beneath water.
    Where a city, having already acquired a right to take waters from a lake, institutes a further proceeding to condemn a strip of land bordering the lake so as to cut off riparian rights and protect the waters from pollution, an award should be made not only for the taking of the riparian rights of fishing, boating, ice cutting, etc., but also for the fee owned by abutting owners in the lands beneath the waters.
    Appeal by the City of Mew York from portions of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 13th day of February, 1907, confirming the report and award of commissioners, and from said order as amended by an order entered on the 22d day of March, 1907.
    
      Frederick William, Sherman [Francis Key Pendleton with him on the brief], for the appellant.
    
      Wilson Brown, Jr. [Charles H. Banks, Griffen & Young with him on the brief], for the respondents.
   Woodward, J.:

This proceeding for the condemnation of certain water rights for the city of Mew York was begun by an interlocutory judgment or order appointing commissioners on the 7th day of February, 1903. The city had previously acquired the right to take the waters of Byram lake and "Wampus lake as they flowed through the Byram fiver and Wampus river from the town of North Castle southward toward the Connecticut line. The landowners along the Wampus stream retained the right to resort to the same for the purpose of watering cattle and other ordinary purposes, and it being conceived that this constituted a menace to the purity of the water supply, this proceeding was instituted to take the borders of the stream and its source, the Wampus pond, for a distance of about 250 feet back from the banks, thus entirely isolating the waters from contamination. Damage maps were prepared and approved, the land about Wampus pond being divided into parcels numbered from 82 to 87 inclusive, omitting parcel 83. The pond itself, having an area of forty to forty-live acres, was shown upon this map as 85. The owners of the upland of parcels 82, 84, 86 and 87 put in testimony to establish the values of their several holdings, this testimony being based upon the estimated value of the property with its then existing rights in Wampus lake, such as fishing, boating, ice cutting and summer residential purposes, and the award of the commissioners is not questioned on this appeal in so far as it relates to these parcels.

By the map and petition of the city of New York, the appellant here, parcel 85 was designated as a separate parcel, and was alleged to be owned by Ingersoll F. Knowlton, who was the owner of certain mills on the stream below, as well as of parcel 84, but it developed in the course of the proceeding that Knowlton, with the other abutting owners, were the real owners of parcel 85, and while the award of the commissioners for $5,000 was made to unknown owners, this was by stipulation adjusted among the real owners. The contention of the appellant is that the abutting owners having predicated their damages upon their rights in the lake, it was error on the part of the commissioners to award more than a nominal sum for the fee of the land underlying the lake.

We are of the opinion that this position is untenable. The owners of the upland had, as such owners, certain property rights in the lake, regardless of the ownership of the fee; it was valuable, no doubt, for the purpose of summer residences because of the proximity of the lake, and this value the commissioners recognized and provided for in their report, which has not been questioned. But after all of the elements of value had been allowed to the owners of the upland, there was still forty to forty-five acres of land, constituting a natural reservoir, of value to the city of ISTew York or any one else having occasion to impound water, and it cannot be said, as a matter of law, that this property had merely a nominal value, and were it not for the fact that the abutting owners were discovered to be the owners of the fee of the lake, it is probable that no one would have suggested that all tangible value had been taken out of this natural reservoir by paying for the rights of abutting owners in the upland. If the owners of the upland received more than they were entitled to by reason of their riparian rights; if they in fact were paid a sum which embraced elements of damage belonging to the fee of parcel 85, that is no reason why this separate parcel should be denied an award, and the question cannot be fairly presented without an appeal bringing up the entire award. Parcel 85 was treated as a distinct parcel throughout the proceeding, and it is entitled .to an award as a separate parcel, taking into consideration all the elements of value which belong to it, and without any diminution for what may have been improperly allowed to the upland parcels.

It does not appear that any improper rule was adopted by the commissioners in arriving at the value of parcel 85, and there is no reason, therefore, for disturbing the award as made.

The order appealed from should be affirmed, with ten dollars costs and disbursements to each of the respondents.

Hirsghberg, P. J., Jenks, Bioh and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to each of the respondents.  