#### In the Matter of the Application and Petition of Michael T. Daly, as Commissioner of Public Works of the City of New York, for and on Behalf of the Mayor, Aldermen and Commonalty of the City of New York, under Chapter 189 of the Laws of 1893, to Acquire Certain Real Estate, etc., for the Purpose of Providing for the Sanitary Protection of the Sources of the Water Supply of the City of New York. Carmel, Lake Gleneida, Proceeding. Thomas E. Raymond and Others, Appellants; The City of New York and Others, Respondents.

Second Department,

January 24, 1908.

Eminent domain — condemnation foi’ water supply, city of New York — easement in water rights — facts not showing abandonment — title to award s when award includes payment for rights appurtenant to soil.

An easement giving, a right to use waters, of a lake for mill purposes created by deed is not abandoned by mere non-user; there must he facts and circumstances showing an intention of the owner to abandon.

When the owner of such easement has for several successive terms of five years leased his water rights to a municipality for a substantial rent, no abandonment can be predicated upon the mere fact that the mill was not used during the period and became out of repair, or because no rent was received for three ■ years at a time when it was apparent that the municipality would soon condemn the easement.

The owner of lands servient to such easement cannot contest an award made to the dominant owner in condemnation proceedings on the ground that he had been twice paid. ’

An easement in water rights described in the petition in condemnation proceedings taken under chapter 189 of the Laws of 1898 vested absolutely in the city of New York upon the filing of the oaths of the commissioners, but the fee to the lands to which such easement was appurtenant was unaffected if not described in the petition or delineated on the map. Hence, although the fee itself was subsequently taken and paid for in other condemnation proceedings, it cannot he said that the owner was paid twice .because of the separate award made for the easements appurtenant thereto in other proceedings.

The right of an owner of lands beneath waters to cut and harvest ice is appurtenant to the ownership of the soil and must he deemed to have been included in the award made when the land itself was taken by eminent domain.

Appeal by Thomas E. Raymond and others, claimants, from certain parts of an order of the Supreme Court, made at the West-*710Chester Special Term, and entered in the office of the clerk of the county of Westchester on the 3d day of July, 1906, confirming the report of commissioners of appraisal herein.

*Lewis H. Freedman [Artemas H. Holmes*and *John L. Jones Jr.,*with him on the brief], for the appellants.

*I. J. Beaudrias [Francis K. Pendleton*with him on the brief], for the respondent The City of New York.

*Arthur M. Johnson,*for the respondents Cole.

Hooker, J.:

This is a proceeding under chapter 189 of the Laws of 1893 and the acts amendatory thereof, for the condemnation of certain property for the purpose of supplying water to the city’of New York. It was commenced on December 5, 1893, when commissioners, as provided in the act, were appointed; they filed their oaths the following day, and proceedings were had. herein which resulted in the filing of their fourth separate report on November 1, 1899; a motion to confirm it was denied at Special Term and new commissioners were appointed; the order was appealed from and was affirmed in this court (72 App. Div. 394); an appeal to the Court of Appeals from the order of affirmance was dismissed (173 N. Y. 640). The new commissioners qualified on June 21, 1902. The survivors of these commissioners, with substitutes made necessary by death, filed their report February 9, 1906; it awarded, for parcel No., 63,- which will be described later, $6,900 to the so-called ¡Raymond heirs, and for parcel No. 64, $10 to the Raymond heirs and $27,100 to the so-called Cole heirs. . The Raymond interests opposed the confirmation of the order; but it was confirmed.and the Special Terzn refused to send the matter back to the comrnis- ' sioners; the Raymond heirs appealed to this court; but the appeal was dismissed (116 App. Div. 798); the order of disznissal was, however, reversed by the Couz't of Appeals (189 N. Y. 34) and the award of the coznmissioners, as set forth in the report filed February 9, 1906, is now before us for review upon the merits.

The Rayznond heirs filed a claim to the award of $27,100 to the Cole heii’s, and after they appealed fz-om the order of confirmation, the city deposited the amount of the award in the depository désig*711nated in the order, as there directed in case of adverse and conflicting claims. They have refused to accept the award of $10 to them, and that sum the city likewise deposited. The dispute is as to these two awards.

The description of so-called parcel No. 63 was of land under the waters of Gleneida lake; the description of parcel No. 64 was “ all rights of milling, all rights of pondage and all rights to raise and lower the waters of Lake Gleneida, Town of Carmel, County of ■ Putnam, are intended to be included in this parcel.” ■

The Raymond heirs were the owners of the land under the waters of Gleneida lake, and were awarded therefor the sum of $6,900, which they have accepted, and received.

The. interest of the Cole heirs is more complex. Some two to five hundred feet below the lake, the Cole heirs owned about twenty-three acres of land on the outlet, upon which was situated a mill and mill site; the twenty-three acres itself was not taken in ■this proceedirig, not delineated on the map nor described in the petition upon which the proceeding was based. In 1811 the lake and a large area of land around it, including the mill, was owned by Mary Gouvernenr, who in that year conveyed to one of the predecessors in title of the Cole heirs this twenty-three acres of land, upon which stood the mill, together with “the privilege of the water of” the lake. The lake or pond was of about one hundred and eighty acres. It is fair to assume that at that time the lake was used as a reservoir for the mill, for it appears that continuously for a long period of years immediately before 1870 it was so used, the waters being controlled by a dam, gate or flume at the very outlet of the lake, and the proprietors of the mill asserting the right to raise and lower its waters and actually doing so as far back as the memory of living witnesses goes. The right in the owner of the mill to flood the lake to high-water mark, and to draw off water down to the bottom of the flume seems never to have been questioned, at least while the mill was being operated-; the distance between these two levels of the water was approximately four feet ten and orie-half inches.

The appellants, the Raymond heirs, attack the award to the Cole heirs for parcel 64 upon the ground that any easement the latter or their predecessors in title had, was abandoned and .destroyed *712long prior tó the institution of this proceeding, and urge that the leases to the city since 1870 have worked 'that- abandonment. - Tile mill was in continuous operation down to 1870, and on August 24, 1870, it was leased to one Tracy, who assigned to the mayor, aider-men and commonalty of the city of New York, “ together with all the right,'title and interest of the party of the first part in and to-Shaw’s Poiid, now called Lake Gleneida and the waters thereof, and the use of the same, with the light to repair, renew and improve the dam or bulkhead and outlet of the said pond, as fully as the party of the first part has power and control over the same.” The lease was for 'five years at an annual rental of $2,000, and granted the right to purchase at any time within one year at the price of $30,000. Again on August 24, 1875, the then owner leased direct to the city the same premises for a further term of five years at the annual rental of $1,500. On August 24,1880, the then owner leased to the city “ all the right, title and interest of the party of the first part in and to Shaw’s Pond, now called Lake Gleneida, and the waters ' thereof and the use of -the same ; with the right to repair, renew and improve .the dam or bulkhead and outlet of the said pond as fully as the party of the first part has power and control over the same.” This lease was for five years, at the annual rental of $1,200.' On August 24, 1885, the then owner leased to the city the same pi'emisés described in the lease of 1880 for five years at the same rental. The lease was not renewed in 1890, and this proceeding was begun in December, 1893.' Between August 24, 1890; and December, 1893, the mill was not operated, and at that time it was só wholly out of repair as to make its operation impossible without extensive repairs or practical rebuilding. The appellants’ claim on this branch of the case cannot be sound; granting that between 1870 and 1893 the waters of the lake were not actually used for mill purposes, yet there was not only no evidence of purpose to abandon the Water right, but, on the contrary, the intent of the proprietors to maintain and conserve the right was apparent. The leases of 1870 ánd 1875 Were of the mill and the water right; those of 1880. and 1885 of the water right alone. The city may not have used the mill as such, but did use the water, and raised and lowered its level; that is just What had been done by the operators of the mill. More than that,-it is to be remembered that mere non-user does not create *713an abandonment of an easement of this character; there must be on the part of the owner of the easement facts and circumstances showing an intention to abandon. *(Welsh*v. *Taylor,*134 N. Y. 450.) There was a lease here of ten years, between 1,870 and 1880, of the mill and the water right, for a valuable substantial consideration ; certainly the proprietor did not intend during that time to abandon what right he had in the waters of the lake, and it is impossible to conceive that he would ever entertain such a notion so long as he was obtaining from the lessee from year to year a substantial rental for the right. Hor was the mill removed. It is true it Was not kept in repair, but why go to the expense of repairing it while there was likelihood of a continuation of a large .revenue without the necessity of'such repairs!' There is nothing in the case to show that the business of milling could not, have been resumed upon a refusal of the lessee to renew as soon as the mill structure and. machinery might be rehabilitated. That between 1890 and 1893 no rent was received and the mill not, repaired does not point to an intention to abandon, for it was entirely apparent to the owners that the city must soon condemn, and there is some evidence that they were so informed by city officials.'

The appellants also urge that any right, which the Oole heirs had ■ in this lake was not taken by the city in this proceeding, but rather was taken when it obtained title, through condemnation proceedings, of the twenty-three acre mill site. I am unable to comprehend how the appellants have any interest in the question whether the Cole heirs have been paid twice for their property; the. question might be highly important to the city, but it has not appealed.

However, I think-there is a more satisfactory answer to tile contention. It is provided in section 11'of chapter 189 of the Laws: of 1893, the act under which this proceeding was brought, that the title to the land described in the petition should vest in the city absolutely upon the filing of the oaths of the commissioners. Such oaths were filed in this proceeding on December 6, 1893, and the water rights of the Cole heirs were described in the petition as parcel 64; while the owners were not mentioned by name, it is entirely clear that these rights were intended, for the description of . parcel Ho. 64 was all rights of milling, pondage^ and to raise and. lower the waters of the lake. There is no- proof in the record that *714any. one other than' the Cole heirs had or asserted any such right,- and their claim to such right was known, for it was what the- city had been paying rent for during twenty years. . The easement was*, therefore* extinguished with the filing of tile oaths of the commissioners on- December 6, 1893; and such title to the easement as could passed to the city on that day. The twenty-three acres on which the mill stood were not described in the petition nor set forth on the map, and hence the fee thereto was unaffected by this proceeding except that- the water rights appurtenant thereto were extinguished. The fee to the twenty-three-acre piece has, however* been acquired' by the city in another condemnation proceeding, known as Reservoir D proceeding, and the appellants’ point lies in the assertion that the latter proceeding antedated this one, and ■ that when the fee of the twenty-three-acre piece passed to the city in the Réservoir proceeding, the water easement, for-which .the Cole heirs have been awarded $27,100 in this proceeding, passed with, it as appurtenant. The trouble is that there is no satisfactory proof that the Reservoir D proceeding antedated the present one. It seems -that the Reservoir D matter was begun by consent' upon stipulation ; but as late as July 27* 1895, we find that that proceeding was" by'order discontinued ; the effect of which-must have been to set at'naught all that had been accomplished by it including, of' course," the. acquirement of titles by the city. Counsel for the respondents admitted on the hearing now under review, for the purpose of this proceeding, that title to the twenty-three-acre piece vested July 12, 1894; but that does not aid the appellants, for the date is yet over seven months later than the vesting of title in this proceeding. IIpon this point it is quite clearto me that the easement of the- Cole heirs in the waters of Lake Grleneida was extinguished on December 6, 1893, on- the filing of the oaths of the' commissioners-in this proceeding, and the. title to the actual twénty-three-acre piece did not vest in the. city until some time later. What the Cole-heirs^ were awarded and have accepted in the Reservoir D proceeding must, therefore, have been for the land, shorn of this water right. In addition to all this, it is shown by the record that upon the liear- . ing in the Reservoir D proceeding both parties, namely, the city and the Colé heirs, proceeded upon the theory, which that commission adopted; that the claim of the Cole heirs for the, value of the *715easement was before the commissioners in this proceeding and was, therefore, not considered in that.

There remains another point presented by the appellants which should be considered. They assert that the award of ten dollars to them for parcel 64 is inadequate, and point to the evidence in the record that their right to cut and harvest ice was exceedingly valuable. I have no doubt it was; but in my view of the case they have had a substantial award therefor in connection with parcel 63. It is to be recalled that the description of parcel 64 was rights of milling, of pondage and to raise and lower the waters of the lake! The right to take ice had nothing to do with what is very evidently meant by this description ;J;he ice privilege was appurtenant to the ownership of the bed of the lake, and the bed of the lake is described in parcel 63 ; from the record'it seems to me the commissioners took into account the advantage of the right to harvest ice when they fixed the appellants’damage to that parcel.

I advise the affirmance of the order, appealed from, with costs.

Woodward, Jerks, Gayror and Miller, JJ., concurred.

Order affirmed, with costs.