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and 132 New York State Reporter

Westport. Proceedings with a view to making such change have been had, under sections 31, 32, and 33 of the county law (Laws 1892, p. 1753, c. 686). The proposed location of said buildings exceeds one mile from their present location, and is beyond the boundaries of the incorporated village where they are now situated. The proposed change has received a majority of the votes of the board of supervisors, and also a majority of the votes of the electors of the county. If the proceedings have been in compliance with the statute, and such statute is not unconstitutional, it only remains for the supervisors to effectuate the sentiment of the electors of the county as expressed by their ballots, and change accordingly the site of the county buildings.

This action is sought to be maintained on the ground that the sections of the county law under consideration are unconstitutional, in that they provide for a surrender or delegation of legislative power, and an attempt to confer that power upon the electors of a county; and the plaintiff also alleges numerous irregularities and failures to comply with the statute in question, which he claims render nugatory the proceedings which have been taken. The constitutional question thus raised, as well as most of the other questions, have been disposed of in a well-considered opinion by Mr. Justice Spencer, before whom the action was tried (48 Misc. Rep. 415, 96 N. Y. Supp. 840), and we are content to rest the judgment herein on his opinion, merely adding our views in reference to one question, which seems worthy of consideration, and which was not discussed by him, perhaps for the reason that it was not urged at the trial.

The question thus referred to is as to the application of section 17 of the county law (Laws 1892, p. 1748, c. 686) to the proceedings in question. That section requires that every act or resolution of a board of supervisors "in the exercise of its legislative powers shall have a title prefixed concisely expressing its contents followed by a reference to the law or laws conferring the authority to pass the act or resolution, the number of votes both for and against its passage," and also provides, among other things, that such acts or resolutions shall within six weeks after the close of the session be published in the newspapers in the county appointed to publish the session laws of the Legislature. It is claimed by the plaintiff that the resolution for the removal of the site of the county buildings as adopted by the board of supervisors had no title, and did not comply with the requirements of this section. Assuming, as did the learned trial justice, that the resolution in question was an exercise of legislative power by the board of supervisors, it is not such a resolution as is contemplated by section 17 of the county law. The purpose of that section is to furnish a convenient and efficacious method of acquainting the public with the provisions of an act or resolution which has already become effective, in the same way that it is the policy of the law to publish and make known the contents of acts of the Legislature. Resolutions of boards of supervisors under the section in question are to be published in the same newspapers in which session laws of the Legislature are to be published, and for the same purpose. A title and the other requirements of the section facilitate this purpose, for reasons which are obvious. The section applies to resolutions which have already become final and complete solely by action of the board, and

require no other action to make them effective; or, in other words, to such resolutions as in and of themselves have the force of law, and not to such resolutions as are but steps in the accomplishment of some incomplete purpose. The resolution in question was not a final or dominating act of the board of supervisors. It was inchoate and incomplete; one step in the accomplishment of a purpose not yet accomplished. The proposition to change the site of the county buildings neither originated with the board, nor was it consummated by the action of the board. It had to originate with the people, and after adoption by the board was not complete until it was ratified by the people. By section 32 of the county law (Laws 1892, p. 1753, c. 686) a different provision is made for its publication than is made by section 17. It is quite clear that section 17 deals with resolutions already binding on the public, and does not apply to the resolution in question. The reasons for the provision of that section do not apply to a resolution like that now under consideration.

We have examined the other questions raised, but find none fatal to the removal of the county seat. For the most part such questions are discussed in the opinion of the learned trial justice. Such as are not discussed by him we have considered, and find to be without merit.

The judgment should be affirmed, with costs. All concur, except PARKER, P. J., not voting.

(112 App. Div. 875)

OSTRANDER v. STATE.

(Supreme Court, Appellate Division, Third Department. May 2, 1906.) APPEAL-MODIFICATION OF JUDGMENT-INCREASING RECOVERY.

On appeal from a judgment of the court of claims in favor of claimant and against the state, the Supreme Court cannot increase the judgment, where, although there are findings by the court of claims, there is no finding as to the extent of the damages as claimed by claimant.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4506.]

Appeal by Charles Ostrander from a judgment of the court of claims in his favor and against the state, granting insufficient relief. Reversed, and new trial granted.

Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

George F. Thompson, for appellant.

Julius M. Mayer, Atty. Gen., and Willis H. Tennant, for respondent.

COCHRANE, J. The judgment in this case establishes the liability of the state because of an overflow of water on the land of the claimant in Genesee county, in the year 1901, from a feeder constructed and maintained by the state in connection with the Erie Canal. This appeal is because of the alleged insufficiency of the damages awarded.

The court of claims found as facts that farm products of the claimant "were damaged by the combined waters of the feeder and the heavy rain, and the damage to said products and the property of claimant from

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said joint waters was in excess of the award herein made," and "that all the damage suffered by claimant was not caused by the waters of said feeder, but that some of it was caused by the heavy rain which occurred at the time of said overflow, and which accumulated on claimant's premises independently of the water which came from the feeder," and concluded that the state "is not liable for the damages caused to claimant by the accumulation of waters due to heavy rains, which damage would have been caused without the presence of the feeder, and without any intervention on the part of the state."

It is unnecessary to consider whether this conclusion of the court is legally deducible from the said facts as found, for the reason that such facts have no support in the evidence. It is absolutely unestablished that, independently of the feeder, there was any accumulation of rain on the premises of the claimant, or that the rain would have caused him any damage whatever. In fact the court expressly found that the rains "were not the greatest known in that region, or greater than several storms before that time."

The learned Attorney General strenuously insists that some of the water in question came from a stream known as "Oak Orchard Creek,” and which formed a part of the feeder system, or that coming from an easterly direction it flowed across the feeder. There is no satisfactory evidence, however, to that effect. Moreover, the court expressly found that "the waters of Oak Orchard Creek did not run upon the lands of the claimant," and "that the lands of the claimant are so situated that the water that did run across the same in the spring of 1901 must have come from Whitney creek and Tonawanda creek, having been conducted thereon by running first into the feeder, thence running north, and spilling over the feeder," and also "that no water came down from the east in the spring of 1901, and flowed across the feeder onto claimant's land, except the waters running north in said feeder, having been accumulated in said feeder from Whitney creek or Tonawanda creek watershed through said gate."

From the undisputed testimony and also from the findings of the court the judgment herein is inadequate. We are asked to modify the judgment by increasing the same. We are unable to do this, because, although there are findings by the court of claims, there is no finding as to the extent of the damages as claimed by claimant. See Crowley v. The State of New York (decided at this term of the court) 98 N. Y. Supp. 1094.

The judgment must be reversed, with costs, and a new trial granted. All concur, except PARKER, P. J., not voting.

(113 App. Div. 84)

In re WATER FRONT OF CITY OF NEW YORK.
Appeal of AMERICAN ICE CO.

(Supreme Court, Appellate Division, First Department. May 11, 1906.) 1. EMINENT DOMAIN CONDEMNATION OF LAND - PROPERTY INTERESTS AFFECTED.

The petition in proceedings to condemn land by the city of New York, as authorized by Laws 1882, p. 1, c. 410, and amendments, for the purpose of improving the water front of a river, as authorized by Laws 1870, p. 366, c. 137, as amended by Laws 1871, p. 1231, c. 574, and the amendments thereto, referred to all wharfage rights and easements to the lands sought to be taken; and the order appointing the commissioners required them to make an estimate and assessment of the loss to the respective owners and persons respectively entitled to or interested in the wharfage rights, easements, or privileges connected with the property. Held, that it was the duty of the commissioners to determine on the merits whether or not a grantee under a grant of a right of wharfage was entitled to damages in consequence of the taking of the property sought to be acquired. 2. NAVIGABLE WATERS-RIPARIAN RIGHTS-EASEMENTS.

The grant of a right of wharfage at a wharf adjoining land under water belonging to the grantor carries with it, as a necessary incident and appurtenance, a right of way to the wharf for vessels over the grantor's adjacent land under water.

3. EMINENT DOMAIN - PROCEEDINGS TO CONDEMN LAND-ASSESSMENT OF DAMAGES.

Where in proceedings by a city to condemn land a person was awarded full damages, irrespective of the right of a third person to claim easements therein, a judgment confirming the award must be set aside, for if the award should be affirmed and the third person subsequently establish a claim, the city would be required to pay damages twice.

4. JUDGMENT-RES JUDICATA.

Where in proceedings to condemn land the only question involved was whether a third person had any easement in the land sought to be taken for which he should be compensated, a judgment against him in an action in which he claimed to be the owner of the fee did not constitute a bar.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1246.]

Appeal from Special Term, New York County.

Proceedings by the city of New York to acquire wharf property and lands under water necessary for the improvement of the water front of the city on the North river, between Forty-Second and Forty-Third streets. From an order confirming the report of commissioners of estimate and assessment, the American Ice Company appeals. Reversed and remanded.

Argued before O'BRIEN, P. J., and PATTERSON, MCLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ.

Albert Stickney, for appellant.

James A. Deering, for respondent Forty-Second St. & Grand St. Ferry R. Co.

Theodore Connoly, for respondent City of New York.

HOUGHTON, J. In furtherance of the plan to improve the water front of the city of New York, as authorized by chapter 137, p. 366, of the Laws of 1870, as amended by chapter 574, p. 1231, of the Laws of

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1871, and the amendatory acts thereof, the mayor, aldermen, and commonalty of that city, acting by the department of docks, on the 31st of December, 1894, instituted condemnation proceedings, under chapter 410, p. 1, of the Laws of 1882, and the acts amending the same, to acquire the lands under water and wharf property on the North river, situated between West Forty-Second and West Forty-Third streets, bounded northerly and southerly by the respective sides of those streets, together with all wharfage rights, incorporeal hereditaments, and easements appurtenant thereto. The petition alleged that the respondent, the Forty-Second Street & Grand Street Ferry Railroad Company, was the owner of all the property and rights involved, and the commissioners of estimate and assessment, appointed to appraise the damage, so found, and reported and awarded the sum of $215,000 to the railroad company as damages for all the land under water between the lines of FortySecond and Forty-Third streets, and the wharfage rights connected therewith. On the hearing before the commissioners, the appellant the American Ice Company appeared, and claimed to be entitled to an award of damages for certain wharfing privileges and easements along the southerly side of Forty-Third street, arising out of an alleged right to maintain a pier at the extension of Forty-Third street, to which right the adjacent lands of the railroad company were claimed to be subservient. This claim was not recognized by the commissioners, and from an order of the Special Term confirming their report the ice company appeals.

Had the commissioners passed upon the merits of the appellant's claim, and concluded to award it nothing, quite different questions would have been presented to us than those which we feel called upon to determine upon this appeal. From the report of the commissioners it appears that they determined to make no award to the ice company, and, in effect, refused to pass upon its rights, because they thought it for the best interests of the city and its present policy to acquire bulkhead rights owned by private parties on Manhattan Island first, and separately, instead of attempting in the same proceeding to acquire the rights of private pier owners, and as they interpreted the petition for the appointment of commissioners, it did not refer to the condemnation of any pier or pier rights, and hence concluded it to be unnecessary to determine whether or not the ice company had any rights for which compensation should be made. The petition did refer to all wharfage rights and easements to the lands lying between the two lines of FortySecond and Forty-Third streets. The order appointing the commissioners required them to make an estimate and assessment of the loss and damage "to the respective owners," and "persons respectively entitled unto or interested in the wharfage rights, wharf property, terms, easements, or privileges" connected with the property proposed to be taken.

The appellant received whatever title it has from the Knickerbocker Ice Company, which before grant to appellant, and prior to December 29, 1902, brought an action to restrain the respondents, the Forty-Second Street & Grand Street Ferry Railroad Company and the city of New York and all others, from constructing a bulkhead at the foot of Forty-Third street and the North river, or across the water lot lying

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