The Niagara County Irrigation and Water Supply Company, Respondent, v. College Heights Land Company of Niagara Falls and N. Lansing Zabriskie, Appellants, Impleaded with Philander Mott, Defendant

The Niagara County Irrigation and Water Supply Company, Respondent, v. College Heights Land Company of Niagara Falls and N. Lansing Zabriskie, Appellants, Impleaded with Philander Mott, Defendant. Fourth Department, March 7, 1906. Eminent domain — constitutional law — charter of the Niagara County Irrigation and Water Supply Company did not require assent of two-thirds of Legislature — rights of State in waters and bed of Niagara river. 1 The charter of the Niagara County Irrigation and Water Supply Company (Laws of 1891, chap. 859, §§ 4, 6), authorizing said corporation to take water from the Niagara river and to construct, operate and maintain canals, provided pipes or tunnels under the waters of the Niagara river are so .laid and constructed as not to interfere with the navigation of said river, does not appropriate any property of the State to the use of the corporation either in the waters or bed of the stream. Hence, said act did not violate the provisions of section 9 of article 1 of the State Constitution of 1846, then in . force, in not receiving the assent of two-thirds of the members elected to each branch of the Legislature. The State has no ownership of the waters of the Niagara river, and, while in a certain sense it is the owner of the bed of said river, it holds not as a proprietor but as sovereign in trust for the people. Said charter does not confer upon the corporation the right to take or make use of the property of other persons or of. the State until it has acquired such property in a legal way. Afpbal by the defendants, College Heights Land Company of Niagara Falls and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 24th day of October, 1904. De Witt V. D. Reiley and James H. Hanson, for the appellants. J. Boardman Scovell, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The order should be affirmed, with costs. The order was made on presentation of a petition by plaintiff asking to condemn certain real property .of the ■ defendants for the construction and maintenance of its works. The defendants filed objections and moved to dismiss the petition. The court, by the order, overruled the objections, denied the motion to dismiss, directed the service of the answers to the petition, and’ ordered the issues raised by the petition and answers to be tried at the equity term of the court. While four objections were made to the petition, it seems that only the fourth one is to be considered on this appeal, the other three having been waived by stipulation of" the. parties. Both parties so state in their points. The stipulation is not printed in the record, however. The fourth objection is: “ 4. That said Act (incorporating plaintiff) is unconstitutional and void, in that said Act did not receive the assent of two-thirds of the members elected to each branch of the Legislature which passed the "same.” The respondent concedes in its points that the act in qiiestion did not receive the assent of two-thirds of such members. The provision of the Constitution alleged to have been violated was section 9 of article 1 of the Constitution of 1846, which is the same as section 20 of article 3 of the present Constitution of 1894, and is as follows: “ § 9. The assent of two-tliirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.” The act in question is chapter 259 of the Laws of 1891. The purposes of the corporation as stated in section 3 “ are the construction and maintenance of a public waterway from a point in the Niagara-river between the west bank of Cayuga creek and the east line of lot seventy-one of the Hile Reserve, so called, as may be most convenient, which waterway may be constructed as a canal, ditch or tunnel as shall be necessary and. convenient for the proper operation thereof and the uses for which it is constructed. The supplying from said waterway and conduits, ditches, canals, tunnels and pipes leading therefrom of pure and wholesome water to the- village of Lewiston and the inhabitants thereof, and to any other city or village now or hereafter located in the towns of Niagara, Lewiston or Porter in the county of Niagara, and the inhabitants thereof. The storage,- accumulation, conduct, supply, lease and sale of water for fire, sanitary, municipal, mechanical, mercantile, manufacturing, domestic, commercial or agricultural purposes, including the purpose óf irrigation.” Section 4 provides that “ Said corporation may, for the purposes of -its corporation, take water from the Niagara river between the points hereinbefore specified, and may discharge stich water into the Niagara river at such points' within or adjacent to the towns of Lewiston or Porter.as .it may select. :* ■* .* It may - build, erect, construct, dig and, lay any canals, raceways, ditches, locks, piers, - injet piers, cribs, bulkheads, dams, gates, sluices, reservoirs, aqueducts, tunnels, conduits, pipes, culverts or other works,.machinery or buildings of every kind and description, whatsoever, that may be necessary and convenient for any of .its purposes.” . Arid the latter part of section 6 provides that' the corporation “ may construct, operate and maintain its said canals and other works for the purposes df said corporation as hereitibefore specified, provided that in .case of pipes or tunnels under the waters of .the Niagara river they are so laid an(d constructed as not to interfere with the navigation of said ’ river.” , There is no doubt that the purposes of the corporation are local. and private. So that the question is narrowed down to the inquiry whether by sections 4 and 6 of the act there'was an appropriation of public property for the purposes of the corporation. 1. The State has no property or ownership in the waters of the Niagara river within the provision of the Constitution- in question, although it has dominion over the same and power to regulate the use and diversion thereof and encroachments thereon as navigable- ■ waters of the State.. (Sweet v. City of Syracuse, 129 N. Y. 317, 334; Waller v. State, 144 id. 579, 599.) So far,, therefore, as the act may be said' to appropriate thé water of the river it does not violate the provision of the Constitution in question. 2. The only question remaining is whether the act permitted the construction of conduits, etc,,, necessary to take the water from, the river so as to appropriate any property in the bed- of the river’in violation of such constitutional provision. The State was in a certain sense the. owrier, of. the bed of the fiver. It held the title, not as a proprietor, but as sovereign,intrust for the public. .(Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75, 85.) There is a view taken of such acts as the one in question, which seems reasonable, that the Legislature does not transfer any title to the bed of the river to the corporation, and does not éveii license the use thereof, but merely confers the power upon the corporation to do what is necessary to carry out its purposes. It does-not confer any right upon the corporation to take or make use of the property of other persons or of the State until it has acquired such property in a legal way. (Matter of New York & L. I. Bridge Co., 90 Hun, 312, 326; S. C. on appeal, 148 N. Y. 540, 555.) In this view the act is not to be regarded as appropriating any property of the State to the use of the corporation, either in the water or the bed of the stream, in violation of the provision of the Constitution in question. It has designated the general powers of the corporation, and if any property rights are required from the State involving the appropriation of property they must still be acquired in a manner provided by law under the Constitution. ' We do not think a necessary construction of the act requires us to hold it violates the constitutional provision in question. All concurred. Order affirmed, with ten dollars costs and disbursements.