The opinion of the court was delivered by: BRIEANT
This is a diversity case. Defendant has moved under F.R.C.P. 12(b)(1), (2), and (6), to dismiss the action on the ground that no "Notice of Claim" was served or filed with defendant City of New York, as required by §§ 50-i and 50-e of the General Municipal Law of the State of New York, McKinney's Consol. Laws c. 24.
Plaintiffs, citizens of New Jersey, allege ownership of riparian land in Pennsylvania, consisting of 124 acres with nearly 3,000 feet on the west shore of the Delaware River. Their land is downstream, on the Delaware, from two substantial dams and diversion works erected by defendant to obtain a public water supply.
In September, 1956, the City of New York began the permanent diversion of the east branch of the Delaware, at Downsville, New York, approximately 39 miles upstream from plaintiff's property, and in March of that year also commenced permanent diversion of the west branch of the Delaware, at Cannonsville, New York, 22 miles upstream from plaintiffs' premises. Plaintiffs' property is below the confluence of these two branches of the Delaware River.
Plaintiffs purchased their property on June 16, 1960. Since that date they allege they have expended over $20,000.00 on improvements. The property is held for recreational and development purposes.
Plaintiffs claim that their riparian and water rights have been the subject of a continuous trespass from September 15, 1954 (sic), to the present in that this tortious conduct of defendant municipality had an adverse effect upon boating, fishing, swimming and bathing in the Delaware River. Plaintiffs also claim that the market value of their real property decreased due to the water diversion, beginning on March 31, 1967.
The diversion operations by the City were commenced pursuant to the authority found in Title K, Chapter 51 of the Administrative Code of the City of New York, more commonly known as the Water Supply Act. The Code prescribes procedures by which downstream riparian owners and others can receive compensation for impairment, or taking of rights, in the flow of the stream, by the City. Owners of all the lands from the Delaware-Sullivan County border in the State of New York to the village of Callicoon, New York, which lies directly across the river from plaintiffs' property, are protected by and entitled to assert damage claims under the portion of that Code known as Delaware Riparian Section No. 2.
Compensation has been paid to New York owners of Delaware River riparian lands, based on the theory of a "taking", or a single payment or award to cover all future and present damages to the riparian rights, based on the assumption that the diversion will be permanent.
No such damage award has been paid to the Pennsylvania owners, such as plaintiffs, who are actually across the river from, and identically situated with the New York riparian owners in Callicoon. The City of New York, by the practical construction of Title K, Chapter 51 of its Administrative Code, has taken the position that recovery thereunder is not available to owners of such property. There may be some support for this position. For example, § K51-12.0 provides that the commissioners of appraisal administering the relevant provisions must meet "within the judicial district where the lands or any part thereof may be located." Plaintiffs' lands are not within any judicial district, a word of art in New York (Judiciary Law § 140, McKinney's Consol. Laws, c. 30. Well recognized policies of federal abstention prevent this Court from construing the Code as applicable to these plaintiffs, in the absence of any such construction by a New York Court, and in view of the long standing contrary interpretation by those who must apply its provisions.
If procedures under Title K, Chapter 21 of the Administrative Code of the City of New York were available to plaintiffs, the "Limitation of time for presenting claims" would be three years from "the execution of the plan or work" § K51-18.0(b), Adm. Code. A similar statutory scheme in Massachusetts has been construed to extend its benefit to owners of damaged riparian land in downstream Rhode Island, Banigan v. City of Worcester, 30 F. 392 (Mass. 1887); Mannville Co. v. City of Worcester, 138 Mass. 89. If the New York City code provision is susceptible to the same construction, a non-resident owner of out-of-state property could waive the tort, and proceed in New York courts under the code provision. See 1 Nichols on Eminent Domain § 2.12(2). But he need not do so; he may proceed in Federal Court on diversity jurisdiction to recover damages for the continuing trespass. There, he may be awarded his damages to the date of judgment, or under the equitable doctrine first enunciated in Lord Cairn's Act (21-2 Vict. chapter 27), a court may, in order to put the controversy to rest, award damages for anticipated future injury to the property during the future life of the diversion works, or in perpetuity, as circumstances may warrant. If such a damage award is found proper, after a trial, the result of the litigation will in no sense differ from that accomplished in an "inverse condemnation" case, nor will it differ from the result of proceedings under Title K, Chapter 51 of the Administrative Code. Squaw Island F.T. Co. v. City of Buffalo, 273 N.Y. 119, 7 N.E. 2d 10 (1937); Kraatz v. Certain-Teed Products Corporation, 20 N.Y.S. 2d 13 (Sup. Ct. 1940).
Yet such possible similarity of result should not lead to the conclusion that owners of riparian land outside New York, subjected to a continuous common law trespass, are with reference to "equal protection" similarly situated in all respects to those New York State property owners who have the benefit of Title K, supra. Inverse condemnation exists only where the power to condemn inheres in the defendant. City of New York v. Pine, 185 U.S. 93, 22 S. Ct. 592, 46 L. Ed. 820 (1902).
No such power has been granted to the City of New York by the Pennsylvania legislature, or by the Congress, which are the only possible sources of such power.
Plaintiffs assert a grievance of Constitutional magnitude because § 50-i of the General Municipal Law, applicable to tort claims, imposes a one year and ninety day requirement for commencement of the action "after the happening of the event upon which the claim is based", while Title K of the Administrative Code, supra, permits an elapsed time period of three years ...