the property for $8,000 and built its power house in 1902; and no use was made of the easterly end of the dam after the Van Buren mill burned in 1870. The bulkheads at the westerly end of the dam were enlarged after claimant purchased the property. Chapter 594 of the Laws of 1902 at page 1732 appropriated $6,600 for constructing steel bulkheads there but did not provide for enlarging the openings. Thereafter, the Superintendent of Public Works let the work of building the new bulkheads to the lowest bidder who happened to be (strange coincidence) this claimant for $6,199.50 and a written contract was entered into June 3, 1902. Exhibit J. In that way the bulkhead openings were enlarged practically from two twenty-foot openings as originally built to two thirty-five-foot openings at an expense of over $3,000 above the contract price for which it appears claimant has never been reimbursed, and so far as the evidence shows has never asked to be reimbursed. By chapters 599 and 600 of the Laws of 1903 the Legislature appropriated $11,500 for "raising and completing" this dam. Pursuant to these last mentioned statutes the permanent crest of the dam was raised by the State 1.28 feet in 1904 from 307.22 feet to 308.5 feet Barge canal datum. It may be here noted in passing that these chapters 599 and 600 of the Laws of 1903 became laws May 14, 1903, and the Barge Canal Law providing for the canalization of the Oswego river became a law April 7, 1903. If claimant's theory of this case is correct, therefore, it would appear that immediately after the passage of the Barge Canal Act the Legislature unwittingly took steps to increase claimant's damage. It will be readily seen therefore that the water power enjoyed by claimant on this property at the date of the appropriation was far greater than that which was naturally appurtenant to this property before the State intervened. At that time claimant's predecessor in title could only construct a wing dam to the center of the river and although such predecessor was entitled to the use of the full one-half flow of the river he could not maintain a head of water, confined as he legally must be, to his own premises, of more than two and six-tenths feet. And even if he could have utilized the entire fall from the head to the foot of Braddock's reef he could have only secured a head of four and ninetyfive one-hundredths feet. Now upon the above facts, history, and legislation, we must find whether the claimant at the date of the appropriation was entitled to use anything more and had a property right to the use of any more water of the Oswego river at this point than, could pass through the two twenty-foot openings as originally constructed in the 1867 dam. It is clear that the claimant had no moral right to anything more. For such rights enabled it to develop far more water power at that point than was ever naturally appurtenant to that property before the State appeared on the scene. It is not strange, therefore, that the able and lucid reasoning of Judge Rodenbeck in the Fulton, Light, Heat and Power Case, 13 Court of Claims, 285; affd., 200 N. Y. 400, also clearly demonstrates that the claimant had no legal right to anything more than the water that could be drawn through the two twenty-foot openings in the 1867 dam at a head which would be available with the crest elevation of that dam at 307.22 Barge canal datum. It must be assumed in view of the facts of this case, and in view of the law as laid down in the case last above cited that these openings and this head were given to claimant's predecessors in title by the State in lieu of other or different compensation for what rights the State acquired there and took possession of under its right of eminent domain as being necessary for the proper construction of the Oswego canal. The rights of the parties became fixed, and in the absence of acts of the State still further invading the rights of claimant or its predecessors in the water and bed of the Oswego river, neither the claimant nor its predecessors would be or could be entitled to further benefits from the State. It is true that officers of the State have, since the building of the 1867 dam, increased for claimant both the amount of water it could use and the head at which it could use such water. But in such increased benefits the claimant has had nothing more than what amounts to a revocable license to use; they never could develop into property rights as against the State; and the State was at liberty at any time to withdraw such increased amount of water and head without becoming liable in damages to claimant. It seems clear, therefore, that it is beyond all controversy as a matter of law upon the facts in this case that the only vested interest which the claimant had in water rights at the Battle Island dam and for which it must be compensated because of the appropriation by the State, was the right to draw water through the two twenty-foot openings in said dam up to the capacity of such openings, provided in so doing it did not utilize more than one-half of the surplus of the flow of the Oswego river not needed for the purposes of the old Oswego canal; and to have the crest of said dam maintained at an elevation of not less than 307.22 feet Barge canal datum. Fifth. Having determined what openings and what crest elevation claimant was entitled to have maintained in this dam, we now come to the question of the value of the water power that could there be developed. And this value means its fair and reasonable market value as between a willing buyer and a willing seller. As bearing upon this proposition we have the evidence of experts of such market value at the date of the appropriation. We have the reasoning and figures of experts showing what amount of electrical horse power could be created by the full development of this water power. Much has been testified to as to the flow of the river and the fluctuations in flow; of the high head incident to the low flow and the low head incident to the high flow; of the days and weeks that the electrical machinery at the sulphite mill could not be operated because sufficient electrical power could not be produced to run them; of the amount of electrical energy that it would take to operate the electrical machinery in the sulphite mill by experts, some of whom could tell how many horse power it took to run a machine by simply a process of laying on of hands; and then, too, the volt meter records were produced and also the watt meter, at last, was permitted to come forth from its hiding place and offer its testimony. We are somewhat embarrassed by the fact that most of the computations by the experts were made upon the basis of the present flow and head that claimant was permitted to use for some years immediately prior to the appropriation. But after making allowance for this different basis of calculation; after reading hundreds of pages of testimony relating to flow and head and load factor, and K. W. H. and E. H. P. and generators, and necessary E. II. P. to run the different machines in the sulphite mill, and volt meters, ammeters, and watt meters, and human meters who like Murray can measure the electric energy by simply placing his hand on the machine, we finally reach the conclusion that the reasonable market value of claimant's water-power rights with the head and water which it was entitled to use at this dam, making allowance for the temporary additional heads created by the use of flash-boards, was the sum of $90,000. Therefore we reach the amount of claimant's damage herein as follows: 1. Market Value of Power House Property: (a) Water power rights... (b) Power house and equipment less salvage of $1,760. (c) Real estate... Total.. 2. Consequential Damages: $90,000 00 45,000 00 50 08 $135,050 08 (a) Transmission line..... 2,300 00 (b) Installing change of equipment at 12,000 00 $14,300 00 Total damages. $149,350 08 We are not unmindful of the fact that many other things have been urged upon our attention by the claimant to be considered in computing its damages. For instance, claimant produces witnesses who tell us that the value of the sulphite mill was $600,000 before appropriation and only $150,000 to $325,000 (Curtis), after appropriation. This is equivalent to saying that the value of this water power to claimant was from $275,000 to $450,000. Consequently if its market value was only $135,050.08 then the difference between that amount and $275,000 for instance of $139,949.92 should be given to the claimant as consequential damages to its sulphite mill. But on the other hand we are confronted by evidence produced by the State that at the date of the appropriation the sulphite mill was a losing venture, that at about that time it went into bankruptcy, that it never manufactured a ton of pulp at a profit, that it was worth just as much after the appropriation as before, and that this power in question was so fluctuating that it never could be used at a profit in such a mill and was in every way unsuitable for a sulphite pulp mill. Again, the claimant contends that this power plant furnished it about 500 electrical horse power which was necessary to run. the electrical machinery at said sulphite mill; that this power must now be supplied by substitute power of some kind; that the only such power now available is Niagara power, which would cost claimant at least about $42.50 per horse power per annum, or an annual outlay of about $21,500. That claimant is, therefore, entitled to the value of its physical properties at the power house, including the power house, the machinery in the power house, the real estate connected with it, the transmission line, the cost of installing a change of equipment at the sulphite mill, and such sum in addition as when put at interest at five per cent would yield an annual income of $21,500. On that basis the claimant's damages would be computed as follows: Power house and equipment less salvage on machinery $45,000 Real estate. ... 50 Transmission line.. 2,300 Cost of installing change of equipment at sulphite mill 12,000 A sum which put at interest would yield an annual income of $21,500.... 430,000 Total. . $489,350 |