Appeal from Special Term, Delaware County.
Application by the Deposit Electric Company for an order vacating an order of James S. Whipple, Forest, Fish, and Game Commissioner, requiring erecting of an efficient fishway in petitioner's dam in the West branch of the Delaware river at Stilesville, N.Y. Application denied, and petitioner appeals. Order modified.
[115 N.Y.S. 747] The following is the opinion of Lyon, J., at Special Term:
This is an application by the Deposit Electric Company for an order of the court vacating the order of Hon. James S. Whipple, Forest. Fish, and Game Commissioner of the state of New York, served upon said electric company, requiring it to erect an efficient fishway in its said dam by constructing a chute 5 feet wide 1 foot high on the inside, and 40 feet long, which shall at all times remain tight, unobstructed, and uncovered, the bottom of the upper end of which shall be at the 4-foot level of such dam, and the lower end of which shall extend under the water below the dam, and a portion of the inner part of which chute shall be fitted with crosspieces to break the force of the current of water passing through the chute, and thus allow the ready ascent of fish from the water below to the water above the dam.
The facts as established by the affidavits submitted upon this application are that the Deposit Electric Company's said dam is situated upon the West branch of the Delaware river, which branch is a fresh-water stream about 75 miles in length, having its origin at Stamford, N. Y., and joining the East branch of the river at Hancock, N. Y., and it may be inferred from the affidavits that the Delaware river meets tide water at Philadelphia, some 40 miles from its termination in Delaware Bay, although doubtless, as a fact perhaps immaterial here, somewhat further upstream; that in the year 1822 the Legislature of the state of New York (page 195, c. 195) declared the West branch of the Delaware river to be a public highway, the act providing, however, " that nothing herein contained shall be construed to prevent any person or persons from erecting, keeping and maintaining over, on or across the said West and East branches of said river *** any bridges, mill dams, water fences or eel wires, to be erected or constructed in such manner as in no wise to interrupt or materially injure the free navigation of the waters of the said streams with rafts or lumber in time of an ordinary freshet for running lumber." That in the year 1828 (page 155, c. 142) the Legislature provided that it should be lawful for the three persons therein named, their associates and assigns, to erect and maintain a dam across the West branch of the Delaware river at the location of the said Stilesville dam, not exceeding 24 inches above low-water level, " but there shall be constructed and maintained in said dam a sluiceway of such dimensions and construction as to render the passage safe and easy for boats, arks and rafts at all times during the continuance of said dam," and that the dam should be constructed in three years, and should not affect or injure the rights or properties of any person unless with consent first obtained, and that " this act and everything therein contained shall be deemed to be taken subject to the right of the Legislature at any time hereafter, to alter, modify or repeal at pleasure."
That about the year 1830 a brush and stone dam, surmounted by hardwood plank, making the dam in all two or three feet in height, was constructed upon the site of the present Stilesville dam, and that it furnished the power which operated a sawmill, carding mill, ax factory, and excelsior factory successively, portions of the dam at times being washed out, but being restored and probably raised one foot when owned by Collett, until about the year 1895, when a large portion of the dam went out and was not rebuilt, and the business at the dam was abandoned; that in or about the year 1901 the Deposit Electric Company purchased the property and built a dam, which is the upper portion of the present dam, which was constructed by bedding five lines of timbers, each about 1 foot square, constituting a substructure of stringers or mud sills, 24 feet in width, covering a space across the river, held in place by long iron rods driven through the timbers and into the ground. Upon the foundation afforded by these stringers the present dam of masonry, timbers, and planking was constructed. The present dam is 2 or 3 feet higher than the old brush dam originally constructed, is about 350 feet in length, and since the construction in the summer and fall of 1902 of the crib apron work, as hereinafter stated, is about 24 feet in width, with a spillway 100 feet long, the crest of which is 1 foot lower than the crest of the remaining 250 feet of the dam.
There was a spillway and apron in the brush dam as originally constructed, and fish could pass up over the dam at all times of the year excepting in times [115 N.Y.S. 748] of low water; and, before the construction of the dam by the Deposit Electric Company, shad were at times caught several miles above the dam, and other fish were more numerous above the dam than since the construction of the present dam. It was not possible for shad or other fish to pass up over the dam constructed by the Deposit Electric Company in 1091, nor is it possible for any fish to pass up over the present dam since the spillway and alleged fishway were constructed in 1902, unless during the periods of extraordinary freshets, if, indeed, fish run at such times. In periods of ordinary water the lower end of the spillway is out of the water, and during the greater portion of the year, while the slash boards are on, there is very little water in the river below the dam, between the dam and the point in the river where the water from the flume re-enters the river some 70 to 80 rods below the dam. During the earlier years many rafts of logs and lumber were annually run down the Delaware river, but during the later years the running of rafts has been infrequent.
During a considerable portion of the year slash boards are maintained by the electric company upon the spillway, raising it to the height of the remainder of the dam, and at times slash boards have been placed by the company upon the remaining 250 feet of the dam, and also sufficiently high upon the spillway to raise it to a corresponding height.
The fish which inhabit the West branch of the Delaware river are the ordinary fresh-water fish, mostly bass, chub, trout, pickerel, suckers, and bullheads, and usually in the spring of the year shad pass up the river from the ocean. The land on each side of the river at the ends of the dam, and above for a distance, is owned by the Deposit Electric Company, which has also acquired the rights of flowage of the lands covered by the present pond, which extends nearly, if not quite, twice as far up the river as the pond of the original brush dam.
In the winter and spring of 1901 and 1902 the gravel below the dam for practically the whole length of the dam was washed out, creating a deep hole nearly or quite across the river, and threatening the undermining and destruction of the dam.
By chapter 594, p. 1736, of the Laws of 1902, the Legislature appropriated " for a fishway in the Delaware river over the Deposit Electric Company's dam, $1,500, or so much thereof as may be necessary."
Pursuant to such appropriation, in the month of July, 1902, " plans and details of fishway proposed for the Deposit Electric Company's dam, Delaware river, Delaware county, N. Y.," were prepared by the Engineer's Department of the state of New York, which plans were approved at a meeting of the Forest, Fish and Game Commission held August 12, 1902, and during the summer and fall of 1902 such hole below the dam, extending practically the whole length of the dam, as above stated, was filled by placing cribwork therein, and filling the cribwork to the top with stones, and capping the same with small timbers, thereby widening the dam the whole length thereof, about 10 feet; and also a spillway 100 feet wide, the crest of which was 1 foot below the top of the dam, was constructed; and in the month of October, 1902, there was paid to R. H. Palmer, who was a stockholder, and, as respondent claims, an officer also, of the said electric company, by the state of New York, pursuant to said appropriation, the sum of $985.05 " for material and labor in building fishway in dam located at Deposit, N. Y., in the Delaware river." Whether any part of the moneys so paid by the state was for labor and material in constructing any portion of the dam or cribbing other than that constituting the spillway is not stated, excepting under an indefinite allegation upon information and belief.
Since the construction of said spillway in 1902, said dam has not interrupted or materially injured the free navigation of the waters of the stream with rafts or lumber in times of ordinary freshets for running lumber.
A fishway was not built in the manner specified by the said plans of the State Engineer's office, but cleats about eight feet long were spiked upon the spillway at the outer edges, and these cleats were soon thereafter destroyed or removed. Such alleged fishway seems to have been temporarily replaced during a portion of each subsequent year with a covered chute which has been taken out by the ice.
[115 N.Y.S. 749] In the year 1906, complaints having been made to the Forest, Fish, and Game Commissioner that the dam obstructed the passage of fish up the river, the deputy commissioner went to the dam and investigated the conditions there, the attorneys and certain of the officers of the electric company being present, but deposing that they understood that the purpose of the visit of the deputy commissioner related to certain indictments then pending against the directors of the electric company by reason of the construction and maintenance of the same as a public nuisance. Soon ...