# Petition — Canfield v. New York City

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 447 U.S. 906

## Text

=... —~—~-
~ By

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Dramas fr
Pramé Court, U. By

APR 18 1989

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1644

LLOYD F. and ELOISE L. CANFIELD,

Petitioners,
v.

THE CITY OF NEW YORK,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

JacK WEINBERG
345 Park Avenue
New York, New York 10022
(212) 593-3000

Counsel for Petitioners

Of Counsel
Gravusparp Mosxovitz McGo.prick
Dannett & Horowitz

Herman FE. Gottrriep

April 18, 1980

‘x, JR, CLERR

TABLE OF CONTENTS

Opinions, Judgments and Orders Below ..........
POI, Sines 460d eis die Kean
I ne eee

Constitutional, Statutory and Regulatory Provisions
IE os 5 0icéntaweseans te nas tienes ee

Reasons for Granting the Writ ...................

I. The Second Cireuit Decision Permits the Uncon-
stitutional Destruction of Private Property With-
ouh Junk TR uo oss 3 Sei vcowaxal verses

(a) The United States Constitution Mandates
That the City Compensate Delaware Ripari-
CM wawaneds ctciaseveeatas hae

(b) Riparians in the Basin States Have Vested
Property Rights in the Natural Flow of the
Delaware. An Equitable Apportionment
Decree Cannot Defeat These Rights ......

II. By Acting Parens Patriae the Basin States Did
Not and Could Not Cede Individual Damage
IE sane css de inns ng vouaresr eevee

Ce cn. es ice csc eee

[Appendices A-L are submitted herewith under
separate cover.]

12

16

il

InpeEx ro AUTHORITIES
PAGE
Cases

Albert Hanson Lumber Compeny Ltd. v. United
States, 261 U.S. 581, 587 (1923) ....... ee Ee 18
Appeal of Shenandoah Co., 2 W.N.C. 46 (t'a, 1875) 18

Banigan vy. City of Worcester, 30 Fed. 392 (C.C. Mass.

DE ia oa he ec niece Scans OR eR i 14
Bauman vy. Ross, 167 U.S. 548, 598-599 (1897) .... 18
Bonelli Caltle Co, v. Arizona, 414 U.S. 318, 317-318,

SE 25S Oc hey eee eee eae es 10, 13
California vy. United States, 488 U.S. 645 (1978) ... 13
Cherokee Nation v. Southern Kansas R. Co., 185 U.S.

Re PI IE hae tS RIE oe 18
Citizens’ Electric Co. v. Susquehanna Boom Co., 270

Pee RR ee Nos FAA eT i ae hae eaes 14
Coffee v. Groover, 123 U.S. 1, 9-10, 11 (1887) ...... 12, 14
Connecticut v. Massachusetts, 282 U.S. 660 (1931) .. 19

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) 17
Hawaii v. Standard Oil Company of California, 405

SR SRN Gh es Fives cs totes ar tae ey Seed 17
Henry Ford & Son, Inc. v. Little Falls Fibre Co., 280

ee ES paces is Chae rae nate wel 11
Hinderlider vy. La Plata River & Cherry Coesk Ditch

Sg ee ee Oe RO oo al be oo eee 13, 19, 20
Hughes v. Washington, 389 U.S. 290, 293, 298 (1967) 10, 13
Kansas vy. Colorado, 206 U.S. 46, 94, 100 (1907) .... 12,17
Kendrick vy. Piper Aircraft Corp., 265 F.2d 482 (3d

SN MN Sh Whee Cetera aire rk Rt 18

Knight v. U.S. Land Association, 142 U.S. 161, 183-
184 (1891)

Maine vy. M/V Tamano, 357 F.Supp. 1097 (D. Maine
1973)

— Te

ili
PAGE
Mannville Co. vy. City of Worcester, 138 Mass. 89

CRE cio cns hak cacews eee eee eena bee 14
Matter of Van Etten v. City of New York, 226 N.Y.

WO TI re terrane aw iia ds pon cs 14, 18
McKenna v. Austin, 134 F.2d 659, 664 (D.C. Cir.

Rs acl ie Fs Re Te 18
Naglee v. Ingersoll, 7 Pa. 185, 201-202 (1847) ...... 12
Nebraska v. Iowa, 406 U.S. 117 (1972) ............ 9,12
New Jersey v. New York, 283 U.S. 336, 283 U.S. 805

‘¢. ) neers Mery etree Gere TO Fe we 5, 15, 19
New Jersey v. New York, 347 U.S. 995 (1954) ....... 2, 3,5
New Mezico v. Aamodt, 537 F.2d 1102, 1107 (10th

Cir. 1976), cert. denied sub nom, New Mezico v.

United States, 429 U.S. 1121 (1977) ........... 17
North Dakota v. Minnesota, 263 U.S. 365, 374-376

Pe Aer ee re premier eg eras Perr t 3,9, 17, 18
Oakes Manufacturing Co. v. City of New York, 206

BT Te I A ec oe ees 15
Oregon ex rel. State Land Board vy. Corvallis Sand

& Gravel Co., 429 U.S. 363, 371-372 (1977) ...... 9, 10, 16

Pine v. City of New York, 112 Fed. 98 (2d Cir. 1901),
injunction rev'd for award of damages, 185 U.S. 93
CRD Wickes rad Shabanees kneel meen oneness 14, 15

Ross v. Licht, 263 F. Supp. 395, 411 (S.D.N.Y. 1967).. 18
Rundle v. Delaware and Raritan Canal Co., 21 Fed.
Cas. 6, 13 (No. 12,139) (C.C.E.D. Pa. 1849), aff'd,

16 Mow. (66 OF.) GO CRGRR) vac eek cece 13, 14, 18
Shively v. Bowlby, 152 U.S. 1, 14 (1894) ........... 12, 13
Storer v. Freeman, 6 Mass. Rep. 435, 438 (1810) ... 13
Strobel v. Kerr Salt Co., 164 N.Y. 303 (1900) ...... 14
Tyler v. Wilkinson, 24 Fed. Cas. 472, 474 (No. 14,312)

pk 3 TES, ER pas eran ere enn arp Ae 13

lv

PAGE
United States v. Rio Grande Dam and Irrigation Co.,

576 UE. GOG, FOR Ci oe Soe as eee 13
Wagner v. Purity Water Co., 241 Pa. 328, 334 (1913) 18
Wyoming v. Colorado, 286 U.S. 494 (1932) ........ 13
Yates vy. Milwaukee, 10 Wall. (77 U.S.) 497, 504

GRIER vic's x pbcnis nw ues Sn nek aa oe 9, 10
York Haven Water & Power Co. v. York Haven

Paper Co., 201 Fed. 270, 275-276 (3d Cir. 1912) .. 14

Zahn v. International Paper Co., 414 U.S. 291 (1973) 6

Constitution, Statutes and Rules

Delaware River Basin Compact §§ 1.6(a), 3.4 and

14.19, Pub. L. No. 87-328, 75 Stat. 688 (1961) .... 3,6
N.Y.C. Admin. Code, Ch. 51, Title K, §§ K 51-26.0,

PPro ee re ee a +
N.Y. Env. Conserv. L. § 15-0801 (1976) ........... +
PA. CG... art. 3, 6.90. 3.25. eee 4,18
Report of Secretary of Land Office as contained in

3) Smith, Laws Pa. (1812)(i), at xxvii-xxix ...... 4,14
1 Senith, Laws Pa. (1776) a6: Ob. ook oi eee 4,14
U.S. CONST. amend. V and amend. XIV, §1...... 3
2 UBL. 4 1SBRE) 2.5 Sea eee 2
28 U.S.C. $§ 1331(a) and 1332(a)(1) ............. 4

Other Authorities

J. W. Pomeroy, An Introduction to the Constitution
of the United States § 47 (1880) ............... 13

3 J. Kent, Commentaries on .lmerican Law 439 (3d
sD re Pret rer 13

Gould, Law of Waters § 204 (1891) ................
Ree ge a eer
Lewis, On Eminent Domain §§ 61, 62 (1888) ........
Black’s Pomeroy, On Water Rights §§ 8, 9 (1893) ..
Gould, On Waters § 32 (2d Ed.) ..............64..

G. B. French and J. Smith, Power to Divert An Inter-
state River, 8 Harv. L. Rev. 138, 148-149 (1894) ..

Prosser, Torts at 314 (4th Ed. 1971) .............
Restatement, Torts §§ 875, 876 (1939) ............

39 Pennsylvania Law Encyclopedia, Waters § 219
| ea se ee ete aR ee ee et ee

IN THE

Supreme Court of the United States

October Term, 1979
No.

Luoyp F. and Exoise L. CAanFiecp,

Petitioners,
v.

Tue City or New York,
Respondent.

a
¥

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

The petitioners, Lloyd F. and Eloise L. Canfield, respect-
fully pray that a writ of certiorari issue to review the
judgment and opinion of the United States Court of
Appeals for the Second Circuit entered in this proceeding
on September 27, 1979, in Docket No. 78-7199.

Opinions, Judgments and Orders Below

The opinion of the United States District Court for the
Southern District of New York, which awarded judgment
in favor of petitioners and others similarly situated, is
reported at 450 F. Supp. 846 and appears in Appendix A.'
The judgment of the District Court appears in Appendix B.
The opinivn of the Court of Appeals, which reversed the

1 References are to the appendices submitted herewith under sep-
arate cover.

judgment of the District Court, is reported at 606 F.2d 358
and appears in Appendix C. The judgment of the Court of
Appeals appears in Appendix D. The orders of the Court
of Appeals, which denied rehearing and rehearing in banc,
appear in Appendix EK.

Jurisdiction

The judgment of the Court of Appeals was entered on
September 27, 1979, in Docket No. 78-7199. A timely peti-
tion for rehearing containing a suggestion for rehearing
in banc was denied on January 23, 1980, and this petition
for certiorari is being filed within 90 days of that date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).

Questions Presented

1. Whether a Supreme Court equitable apportionment
decree, or an interstate compact approved by Congress,
which authorizes a municipality to make massive daily
diversions of interstate river water, abrogates the munici-
pality’s obligation under the Fifth and Fourteenth Amend-
ments to pay just compensation to private riparian land-
owners who were not parties to the decree or compact:

(a) for riparian property damages caused by the
municipality’s diversions; and

(b) for damages resulting from the municipality’s
pollution and ruination of the undiverted portions of
the water.

2. Whether the Second Circuit correctly interpreted this
Court’s equitable apportionment decree, entered in New
Jersey v. New York, 347 U.S. 995 (1954), as abrogating the

constitutional obligation of the respondent, The City of
New York, to pay just compensation for tortious injuries
that the City’s waterworks on the Delaware River caused
to thousands of riparian landowners who were not parties
to the decree.

3. Whether there is a conflict between (a) this Court’s
decision in North Dakota v. Minnesota, 263 U.S. 365 (1923),
which held that, in a Supreme Court proceeding to deter-
mine rights to use of interstate river water, a state acting
parens patriae cannot represent individual damage claims
of its private riparian landowners who are not parties to the
proceeding, and (b) the Second Circuit’s decision which
holds that, in a Supreme Court proceeding to determine
rights to use of interstate river water, a state acting parens
patriae does represent individual damage claims of its
private riparian landowners who are not parties to the
proceeding.

Constitutional, Statutory and
Regulatory Provisions Involved?

(a) The United States Constitution provisions involved
are U.S. Const. amend. V and amend. XIV, § 1, providing
for just compensation and due process.

(b) The federal statute involved is the Delaware River
Basin Compact, Pub. L. No. 87-328, 75 Stat. 688 (1961),
which, in pertinent part, (i) preserves riparian rights along
the Delaware River (Section 14.19), and (ii) waives the
right of the signatory states to apply for modification of
this Court’s equitable apportionment decree, entered June
7, 1954, in New Jersey v. New York, 347 U.S. 995 (Sec-
tions 1.6(a) and 3.4).

2 The pertinent texts of the constitutional, statutory and regulatory
provisions involved herein appear in Appendix F.

(c) The state constitutional, statutory and regulatory
provisions involved are:

(1) Pa. Consr. art. 1, § 10, providing that just com-
pensation be made or secured before private property
is taken for or applied to public use.

(2) 1 Smith, Laws Pa. (1778) at 481, and Report of
Secretary of Land Office as contained in 5 Smith,
Laws Pa. (1812) (i), at xxvii-xxix, which “ratified”
private property rights that had vested in individual
landowners before the Revolutionary War.

(3) N.Y.C. Admin. Code, Ch. 51, Title K, §§ K51-26.0,
K 51-44.0, providing, inter alia, that New York City
shall pay compensation to individuals whose riparian
properties on the New York State side of the Delaware
River have been damaged as a result of condemnation
or permanent trespass by the City.

(4) N.Y. Env. Conserv. L. § 15-0801, setting forth
the New York State legislature’s findings, in 1976, that
New York City’s impoundment and release operations
on the Delaware River “have damaged the recreational
uses” of the River.

Statement of the Case
a) Bases for Federal Jurisdiction

Petitioners, citizens of Pennsylvania, commenced this
action against respondent, The City of New York (“City”),
pursuant to 28 U.S.C. §1331(a) (federal question) and
28 U.S.C. § 1332(a)(1) (diversity of citizenship).

b) Background

This case emanates from this Court’s equitable appor-
tionment decree (“Decree”) empowering the City to take

huge amounts of water from the Delaware River, which
originates in New York State and forms a boundary of
the States of New York, Pennsylvania, New Jersey and
Delaware (“Basin States”). New Jersey v. New York, 347
U.S. 995 (1954).2 The Decree conditioned the City’s au-
thority on its construction of three impounding reservoirs
at the headwaters of the Delaware River and on its com-
plianece with certain provisions relating to stream: manage-
ment. Significantly, the Decree did not address the right
of thousands of private riparian landowners along the
Delaware to claim compensation for property damages that
would be caused by the City’s impoundment and with-
drawals of River water.‘

In 1961, the Basin States entered into a compact (“Com-
pact”) whereby they, in essence, waived their right to apply
for modification of the Decree and agreed to preserve the
riparian rights of private landowners along the Delaware.
The Compact provides, in pertinent part:

“Nothing contained in this compact shall be con-
strued as affecting or intending to affect or in any
way to interfere with the law of the respective
signatory parties relating to riparian rights.” Com-
pact § 14.19 (Appendix F at 3f)

The legislative history of the Compact shows that the
provision preserving riparian rights was added to the Com-
pact:

“to assuage the fears of those who may think that
the compact will change private water rights.” (Ap-
pendix H at lh)

3 The Decree amended and superseded a decree of this Court
entered May 25, 1931, 283 U.S. 805 (1931).

4A map showing the Delaware River, the City’s three reservoirs,
and the locations of a few of the thousands of riparian parcels dam-
aged by the City’s waterworks, appears in Appendix G.

After the Basin States signed the Compact, it was ap-
proved by Congress. Delaware River Basin Compact, Pub.
L. No. 87-328, 75 Stat. 688 (1961).

In May 1967, the City completed construction of its third
reservoir and commenced full operation of its Delaware
water system. 450 F. Supp. at 850; Appendix A at 5a.

ec) Nature of This Action

Petitioners brought this action in 1971. Their com-
plaint charged that the City’s massive daily diversions of
Delaware River water and its mismanagement of impound-
ing reservoirs and dams have caused the River to become
polluted and otherwise ruined as a recreational site. As
a result, thousands of riparian properties along the Dela-
ware have been irreparably damaged, including petitioners’
property on the Pennsylvania side of the River.‘

The City admits that its operations on the Delaware have
drastically altered the natural volume of flow, velocity,
temperature and quality of the River, and acknowledges
that it has already paid millions of dollars in damages to
owners of property situated on the New York State side
of the River (Appendix I). However, the City has refused
to compensate riparians outside New York State for the
same loss. The City argues that it is exempt from paying
damages to out-of-state landowners because its waterworks
were authorized by this Court’s Decree, to which the Basin
States were parties.

‘Class action status was denied in this case after the decision in
Zahn v. International Paper Co., +14 U.S. 291 (1973), that each
member of a spurious class, whether a named or an unnamed plaintiff,
must satisfy the jurisdictional amount for suits in federal courts.
Numerous individual actions by Delaware River riparian landowners
against the City are presently pending in New York state and federal
courts.

d) The Decisions Below

The District Court made the following factual findings:
Since May 1967, when the City commenced full operation
of its Delaware reservoirs, it has been impounding and
diverting to its water supply nearly one-half the water
that would otherwise flow naturally past riparian proper-
ties along the River. The City also has impaired the un-
diverted portions of the River by releasing only minimal
amounts of water for extended periods and intermittently
releasing huge quantities of unseasonably cold water
through its improperly constructed dams. 450 F. Supp. at
856-858; Appendix A at 29a-42a. These massive diversions
and incessant manipulations of the undiverted water have
permanently damaged the River’s ecology and recreational
uses. In particular, there has been a growth of slime and
algae along the River and an increase in mosquitoes and
insects on riparian properties. The warm water fisheries
of the Delaware have been almost totally destroyed and
efforts to turn the River into a cold water fishery have
failed. Recreational activities such as swimming and boat-
ing also have been adversely affected. 450 F. Supp. at
870-871; Appendix A at 97a-103a.

The District Court held that petitioners and other
riparian landowners similarly situated have a vested prop-
erty right in the natural, unabated flow of the entire Dela-
ware River, both for commercial and recreational purposes.
The Decree was entered to resolve a dispute among the
Basin States over the River’s water and the Decree did
not, and indeed could not, abrogate the right of nonparty
individual riparian landowners to receive compensation for
damages caused by the City’s diversions. The District
Court further held that even if it were to accept, “for the
sake of argument”, the City’s contention that it may not
be required to pay riparian property owners for water

actually taken pursuant to the Decree, the City neverthe-
less must compensate the landowners for property damages
resulting from its pollution and ruination of the remaining
water. 450 F. Supp. at 867; Appendix A at 81la-82a.

The Court of Appeals reversed on the law. It held that
the Decree adjudicated the rights of individual landowners
together with those of the Basin States acting parens
patriae; and that the Supreme Court’s equitable apportion-
ment of the Delaware ipso facto bars individual riparians
from asserting damage claims against the City, either for
water actually taken or for impairment of the remaining
water. The Second Circuit concluded that compensation
payments to private riparian landowners would negate
the Decree and would be inconsistent with the Decree’s
“supremacy”; and that the Compact is a further bar to
individual damage claims since the Basin States thereby
agreed not to seek modification of the City’s authority under
the Decree.

Significantly, the decision of the Court of Appeals is
the first to deny riparians the right to sue an out-of-state
municipal diverter for damaging their property.

Reasons for Granting the Writ

The Second Circuit decision violates the constitutional
precept that just compensation must be paid for private
property taken for public use, and denies thousands of
landowners outside New York the same protections afforded
New York landowners. If the decision is permitted to stand,
equitable apportionment decrees and interstate compacts
will be viewed by diverters as authority to expropriate
private property without payment of just compensation,
and as a license to pollute and otherwise ruin undiverted
interstate water without just compensation.

9

The Second Cireuit decision, that individual damage
claims were adjudicated by the Basin States acting parens
patriae, expands the parens patriae doctrine well beyond
the limits which this Court has imposed on that doctrine.

This Court has not explicitly ruled on the right of ripar-
ian owners to claim compensation for property damages
caused by diversions authorized by equitable apportion-
ment decrees. However, the Second Circuit’s rejection of
such claims conflicts with Supreme Court decisions that
(a) vested riparian property rights may not be destroyed
or impaired, even for the public good, without just com-
pensation, Yates v. Milwaukee, 10 Wall. (77 U.S.) 497
(1871); (b) vested pro, srty rights are not subject to later
defeasance by operation of any doctrine of federal common
law, Oregon ex rel. State Land Board v. Corvallis Sand
& Gravel Co., 429 U.S. 363, 371-372 (1977); and (c) both
the parens patriae doctrine and the Eleventh Amendment
bar a state from representing individual riparians’ damage
claims, North Dakota v. Minnesota, 263 U.S. 365, 374-376
(1923). In addition, the Court of Appeals decision renders
nugatory the Compact provision which expressly preserves
riparian rights along the Delaware and the decision there-
fore is in conflict with the Court’s determination in Ne-
braska v. Iowa, 406 U.S. 117 (1972).

I.

The Second Circuit Decision Permits the Unconstitu-
tional Destruction of Private Property Without Just
Compensation.

(a) The United States Constitution Mandates That
the City Compensate Delaware Riparians

As shown in point I(b) below, private landowners along
the Delaware have vested property rights in the natural
flow of the entire River. Their riparian property rights

10

may not be destroyed or impaired, even for the public
good, without just compensation. See, e.g., Yates v. Mil-
waukee, 10 Wall. (77 U.S.) 497 (1871), wherein this Court
held that:

“This riparian right is property, and is valuable,
and, though it must be enjoyed in due subjection to
the rights of the public, it cannot be arbitrarily or
capriciously destroyed or impaired. It is a right of
which, when once vested, the owner can only be de-
prived in accordance with established law, and if
necessary that it be taken for the public good, upon
due compensation.” 10 Wall. (77 U.S.) at 504. (Em-
phasis supplied)

The vitality of the holding in Yates was most recently
reaffirmed by the Court in Bonelli Cattle Co. v. Arizona,
414 U.S. 313, 326 (1973).°

Neither the courts nor the legislature may circumvent
Fifth and Fourteenth Amendment prohibitions against
confiscation or impairment of property without just com-
pensation and without due process by making laws which
retroactively convert vested private property into public
property. See, e.g., Oregon ex rel. State Land Board v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 371-372 (1977) ;
Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 331 (1973),
citing and quoting with approval the concurring opinion
of Mr. Justice Stewart in Hughes v. Washington, 389 U.S.
290, 298 (1967).

Yet, such an unconstitutional result follows from the
Seeond Cirecuit’s erroneous conclusion that the device of
equitable apportionment permits the destruction of indi-

6 On entirely different grounds, Bonelli was overruled by a
ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 US.
363 (1977).

11

vidual riparian property without just compensation. As
the District Court observed, even assuming, arguendo, that
the City may not be required to pay riparians on the Dela-
ware for water actually taken pursuant to the Decree, the
City surely must compensate the landowners for property
damages resulting from the City’s pollution and ruination
of the remaining water. 450 F. Supp. at 867; Appendix A
at 8la-82a; see, e.g., Henry Ford & Son, Inc. v. Little Falls
Fibre Co., 280 U.S. 369 (1929).

The Court of Appeals decision also erroneously imputes
to the Supreme Court the intention to violate the equal
protection provisions of the United States Constitution by
discriminating in favor of property owners in New York
and against property owners in the other Basin States.
In denying recovery to petitioners, the Court of Appeals
reasoned that since their State, Pennsyivania, argued in
favor of equitable apportionment in the Supreme Court
proceedings, petitioners and other Pennsylvania riparians
lost their rights in the natural flow of the Delaware as
well as their right to sue the City for impairment of the
undiverted water. The fallacy of this reasoning becomes
readily apparent when one considers that New York also
argued in favor of equitable apportionment. Yet New York
riparians situated directly across the river from Pennsy]-
vania riparians retained the property rights in the natural
flow of the Delaware and have already been compensated
by the City for damages caused by its reduction, manipula-
tion and worsening of the flow. See cases cited at 450 F.
Supp. at 868-869; Appendix A at 88a-92a.

It is manifest that the Supreme Court could not have
intended that this result follow from its Decree. Nor could
the Basin States have intended that such a result follow
from their signing the Compact. Indeed, the Compact ex-
pressly preserves riparian rights along the Delaware, and

12

the legislative history of the Compact shows that the provi-
sion preserving riparian rights was added to the Compact:

‘‘to assuage the fears of those who may think that
the compact will change private water rights.’’
(Appendix H at 1h)

Since the Compact expressly preserves private water
rights, and since it was signed before the City began full
operation of its Delaware water system, the Court of Ap-
peals erred in holding that by signing the Compact the
Basin States ceded the right of individual riparians to sue
the City for damages resulting from its impairment of the
undiverted water. See, Nebraska v. Iowa, 406 U.S. 117

(1972).

(b) Riparians in the Basin States Have Vested
Property Rights in the Natural Flow of the
Delaware. An _ Equitable Apportionment
Decree Cannot Defeat These Rights.

An historical review of riparian property rights shows
that the Court of Appeals erred when it determined that
individual landowners’ rights in the natural flow of the
Delaware were derived from State grants; were limited
by State boundaries; and were circumscribed by this Court’s
federal common law which the Court applied to apportion

the Delaware.

Riparian rights in the Basin States, as in other eastern
states, were derived from the Crown and vested in indi-
vidual landowners during the colonial period.’ Before the

7 An historical review of riparian property rights (Coffee v.
Groover, 123 U.S. 1, 11 (1887)) shows that English common law
prevailed in the thirteen colonies before the Revolution. See, ¢.g.,
Kansas v. Colorado, 206 U.S. 46, 94 (1907) ; Shively v. Bowlby, 152
U.S. 1, 14 (1894) ; Naglee v. Ingersoll, 7 Pa. 185, 201-202 (1847):

(footnote continued on following page)

13

Revolution, every riparian along a river, including the
Delaware, possessed the same right in the natural, unabated
flow of the entire river, unaffected by territorial boundaries.
The distinet property right in the corpus of the water be-
longed to the Crown and its proprietaries.’ After the Revo-
lutionary War, the Crown and its proprietaries ceded their
right in the corpus of the water to the original states.°
The distinct property right in the natural flow that had
previously vested in private landowners remained with
them, according to principles of international law:

(footnote continued from preceding page)

Storer v. Freeman, 6 Mass. Rep. 435, 438 (1810) ; Gould, On Waters
§ 32 (2d Ed.). By contrast, in western states, property rights orig-
inated with or were dependent upon grants from federal or state
authorities. See, e.g., California v. United States, 438 U.S. 645
(1978) ; Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 317-318 (1973).
Thus, in western states (unlike the thirteen colonial states) the rights
of riparians may be no greater than the rights granted to them by
their respective states. Hence, to the extent that the Court of Ap-
peals relied upon decisions involving property rights in western states
[such as Hinderlider y. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92 (1938), and Wyoming v. Colorado, 286 U.S. 494
(1932) ], the court was clearly in error.

® See, e.g., Hughes vy. Washington, 389 U.S. 290, 293 (1967) ;
United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690,
702 (1899) ; Rundle v. Delaware and Raritan Canal Co., 21 Fed.Cas.
6, 13 (No. 12,139) (C.C.E.D. Pa. 1849), aff'd, 14 How. (55 U.S.)
80 (1852) ; Tyler v. Wilkinson, 24 Fed. Cas. 472, 474 (No. 14,312)
(D.C.R.I. 1827) ; Black’s Pomeroy, On Water Rights §§ 8, 9 (1893) ;
Gould, Law of Waters § 204 (1891); Lewis, On Eminent Domain
§§ 61, 62 (1888) ; G. B. French and J. Smith, Power to Divert An
Interstate River, 8 Harv. L. Rev. 138, 148-149 (1894) ; 3 J. Kent,
Commentaries On American Law 439 (3d Ed.); J. W. Pomeroy,
cin Introduction to the Constitution of the United States § 47
(1880). The individual landowner’s riparian right to the natural
flow was subject to navigational servitude held by the Crown for the
benefit of the public. Now the navigational servitude is embodied in
the Commerce Clause of the United States Constitution.

9 See, e.g., Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 317-318
(1973) ; Shively v. Bowlby, 152 U.S. 1, 14 (1894) ; Rundle v. Dela-
ware and Raritan Canal Co., supra note 8; Gould, On Waters, § 32
(2d Ed.).

14

“fA]s a general principle of international law, .
cession of territory only operates upon the sover-
eignty and jurisdiction, including the right to the
public domain, and not upon the private property
of individuals which had been segregated from the
public domain before the cession. ... The people,
change their allegiance; their relation to their ancient
sovereign is dissolved; but their relations to each
other, and their rights of property, remain undis-
turbed.” Coffee v. Groover, 123 U.S. 1, 9-10 (1887).
(Emphasis supplied)"

Since the Revolution, federal and state courts in the
eastern states have preserved and protected individual
common law riparian property rights that vested during
the colonial period.!' Courts protect such rights, without
regard to state boundaries, by awarding damages in favor
of riparians and against municipalities in neighboring
states which divert water to supply their inhabitants.”

In Pine v. City of New York, 112 Fed. 98 (2d Cir. 1901),
injunction rev'd for award of damages, 185 U.S. 93 (1902),

10In 1779, Pennsylvania passed statutes which “ratified” private
property rights that had vested in individual landowners before the
Revolution. See 1 Smith, Laws Pa. (1778) at 481; Report of Secre-
tary of Land Office as contained in 5 Smith, Laws Pa. (1812) (i),
at xxvii-xxix. (Appendix F at 3f-9f). Of course, even without such
statutory provision the transfer of territory by the Crown would not
affect vested private property rights. See, e.g., Knight v. U.S. Land
Association, 142 U.S. 161, 183-184 (1891).

11 See, e.g., York Haven Water & Power Co. v. York Haven
Paper Co., 201 Fed. 270, 275-276 (3d Cir. 1912) ; Citizens’ Electric
Co. v. Susquehanna Boom Co., 270 Pa. 517 (1921); 39 Pennsyl-
vania Law Encyclopedia, Waters § 219 (1961) ; Matter of Van Etten
v. City of New York, 226 N.Y. 483 (1919); Strobel v. Kerr Salt
Co., 164 N.Y. 303 (1900).

12 See, e.g., Banigan v. City of Worcester, 30 Fed. 392 (C.C. Mass.
1887) ; Mannville Co. v. City of Worcester, 138 Mass. 89 (1884) ;
see also, Rundle v. Delaware and Raritan Cana! Co., 21 Fed. Cas. 6
(No. 12,139) (C.C.E.D. Pa. 1849), aff'd, 14 How. (55 U.S.) 80
(1852).

15

the Second Circuit correctly applied the water laws pre-
vailing in the eastern states since colonial times, and held
that riparian rights are not affected by state boundaries.
In fact, the Second Circuit in Pine sought to protect out-of-
state landowners by issuing an injunction against the City’s
diversions and manipulations within New York State. The
Supreme Court vacated the injunction on the condition that
the City pay damages to the out-of-state riparians.”

Thus, when the equitable apportionment proceedings un-
derlying the Decree began, the Basin States jointly held
the right in the corpus of the Delaware’s water whereas
riparians owned the right to the natural, unabated flow
of the entire Delaware, regardless of where their property
was situated. In those proceedings, the Supreme Court
applied the federal common law that it had created, to
determine New York’s share of the corpus of the waters
that it held jointly with the other Basin States. But federal
common law could not divest individual landowners from
their separate vested property rights in the natural flow of
the Delaware. As the Court recently stated:

13 Perhaps the Court of Appeals in this case declined to follow its
own decision in Pine v. City of New York because of its concern
that the City might incur “costly disbursements” and “unreasonable
damage burdens.” 606 F.2d at 366, 367, 369. [Following the deci-
sion, the City reported that it could have been involved in claims by
“10,000 New Jersey and Pennsylvania property owners” which
“could have cost the City $15 million” (N.Y. Times, 9/30/79, Col. 1,
p. 36; Appendix J).]

However, in expressing its concern, the Court of Appeals over-
looked the fact that the City sells the water that it diverts from
riparians on the Delaware and thereby derives substantial revenues.
See, e.g., Oakes Manufacturing Co. v. City of New York, 206 N.Y.
221, 228 (1912) [See Appendix K for City’s revenues from water
charges, and Appendix L for Special Master’s findings on City’s
profits, New Jersey v. New York, 283 U.S. 336 (1931).] Moreover.
Pine v. City of New York shows that the City’s costs are not relevant
to a determination of its liability. 103 Fed. at 338; 185 U.S. at 95.

16

“(Vested property rights are] not subject to later
defeasance by operation of any doctrine of federal
common law.” Oregon ex rel. State Land Board v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 371-372
(1977).

Clearly, the Court’s statement of the rule refutes the Court
of Appeals’ conclusion that compensation payments to
riparian landowners would be inconsistent with the “su-
premacy” of a Supreme Court equitable apportionment
decree. 606 F.2d at 366; Appendix C at 16c.

To summarize, equitable apportionment decrees and in-
terstate compacts should be held to affect private riparian
owners to the same extent as, but no more than, any other
taking by eminent domain—viz., although riparians may
not enjoin diversions authorized by decrees or compacts,
the landowners must be justly compensated by the diverters
for the resultant damages to their riparian properties.
Such holding would afford riparian owners the protections
guaranteed them by the Constitution and would harmonize
the doctrines of equitable apportionment and riparian
rights. The Second Circuit’s contrary holding denies con-
stitutional protections and nullifies this Court’s decisions
that riparians’ right to the natural, unabated flow of the
water is property which may not be destroyed or impaired
without just compensation, and that federal common law
cannot be employed to defeat vested property rights.

By Acting Parens Patriae the Basin States Did Not
and Could Not Cede Individual Damage Claims.

The Court of Appeals misapprehended the parens patriae
doctrine when it expressed the opinion that in the proceed-
ings underlying the Decree Pennsylvania represented in-

17

dividual riparian damage claimants and bartered their
claims for interests of its other citizens.

It is well-established that when a state brings an action
as parens patriae it acts solely for the general welfare of
all of its citizens, representing interests that are separate
and distinct from those of its individual citizens. For a
state to represent individual damage claimants in such
proceedings would violate not only the parens patriae
doctrine but also the Eleventh Amendment prohibition
against suits by citizens of one state against another state."
Furthermore, when acting parens patriae, a state cannot
assert rights in favor of one group of its citizens against
another.'5

The decision in North Dakota v. Minnesota, 263 U.S. 365
(1923), is directly in point. There, Minnesota accelerated
the speed of flow and increased the volume of water of a
river in Minnesota so that when the river reached North
Dakota it overflowed and damaged valuable riparian farm
properties situated there. The Supreme Court permitted
North Dakota to invoke the Court’s original jurisdiction to
obtain injunctive relief for the benefit of the general welfare
of its citizens. However, the Court held that North Dakota
could not utilize the parens patriae proceeding to pursue
individual damage claims of its riparian farmers. To per-

4 Hawaii v. Standard Oil Company of California, 405 U.S. 251
(1972) ; North Dakota v. Minnesota, 263 U.S. 365 (1923) ; Georgia
v. Tennessee Copper Co., 206 U.S. 230 (1907); Maine v. M/V
Tamano, 357 F. Supp. 1097 (D. Maine 1973).

15 See, e.g., Hawaii v. Standard Oil Company of California, supra
at 258, n.12; New Mexico v. Aamodt, 537 F.2d 1102, 1107 (10th
Cir. 1976), cert. denied sub nom, New Mexico v. United States, 429
U.S. 1121 (1977). The Court of Appeals’ suggestion that Pennsyl-
vania struck a bargain with the City and State of New York in
the equitable apportionment proceedings is contrary to this Court’s
pronouncement that the Court is not authorized to make contracts
between two states. Kansas v. Colorado, 206 U.S. 46, 100 (1907).

18

mit North Dakota to recover damages on behalf of its indi-
vidual riparian landowners, the Court held, would also
circumvent the Eleventh Amendment which prohibits suits
by citizens of one state against another state.

In both North Dakota v. Minnesota and in the Supreme
Court proceeding underlying issuance of the Decree, the
Court determined disputes between states regarding rights
to use of interstate river water. As in North Dakota v.
Minnesota, here too, damage claims of individual riparians
injured by drastic alterations of the volume of flow, velocity
and quality of the river could not have been and were not
adjudicated by the states acting parens patriae before the
Court.'®

16 The Court of Appeals’ view that Pennsylvania, in effect, ceded
to the City the riparian rights of individual Pennsylvanians and gave
the City the license to impair the value of their properties, is also
contrary to the Pennsylvania Constitution. It provides that private
property may not be taken for public use “without just compensation
being first made or secured.” Pa. Const., art. 1, § 10 (Appendix F
at 3f) (Emphasis supplied).

Since Pennsylvania riparians have not been compensated, the City
is a trespasser and must pay damages. See, e.g., Albert Hanson
Lumber Company, Ltd. v. United States, 261 U.S. 581, 587 (1923) ;
Bauman v. Ross, 167 U.S. 548, 598-599 (1897) ; Cherokee Nation
v. Southern Kansas R. Co., 135 U.S. 641, 659-660 (1890) ; Wagner
v. Purity Water Co., 241 Pa. 328, 334 (1913) ; Appeal of Shenandoah
Co., 2 W.N.C. 46 (Pa. 1875) ; Matter of Van Etten v. City of New
York, 226 N.Y. 483 (1919).

The City is liable for the full amouit of the damages even if
Pennsylvania is deemed a joint tortfeasor. Kendrick v. Piper Air-
craft Corp., 265 F.2d 482, 485 (3d Cir. 1959) ; McKenna v. Austin,
134 F.2d 659, 664 (D.C. Cir. 1943): Ross v. Licht, 263 F. Supp.
395, 411 (S.D.N.Y. 1967) ; Restatement, Torts §§ 875, 876 (1939) ;
Prosser, Torts at 314 “4th Ed. 1971).

See also, Rundle v. Delaware and Raritan Canal Co., 21 Fed. Cas.
6 (No. 12,139) (C.C.E.D. Pa. 1849), aff'd, 14 How. (55 U.S.) 80
(1852), which holds that Pennsylvania riparians’ right to recover
damages from an out-of-state diverter is governed by Pannsylvania
law.

19

In fact, Supreme Court records relating to equitable ap-
portionment proceedings show that state-diverters acknowl-
edged liability for damages to individual riparians.

Thus, the record in New Jersey v. New York, 283 U.S.
336 (1931), shows that New York:

“expressed the ability and willingness of the City
of New York to pay damages to anyone injured in
New Jersey, ...” Record, Index No. 64 at 23 (Ap-
pendix L at 1L)

Similarly, the record in Connecticut v. Massachusetts,
282 U.S. 660 (1931) (the only other equitable apportion-
ment case involving colonial riparian rights states) demon-
strates that Massachusetts conceded its liability to pay
damages to Connecticut riparian landowners. In its plead-
ings, Massachusetts submitted that:

“(Bly the common law of the Commonwealth of
Massachusetts . . . a remedy is given not only to
citizens of the Commonwealth of Massachusetts but
to citizens of the State of Connecticut for damages
suffered within their borders by virtue of any diver-
sion authorized by the said Commonwealth.” Record,
._ Index No. 15 at 27-28 (Appendix L at 3L)

Hinderlider v. La Plata River d Cherry Creek Ditch Co.,
304 U.S. 92 (1938), which the Court of Appeals found to
be controlling, was not a damage action by riparian land-
owners. It was an injunction action by an appropriator of
water, to halt upstream diversions authorized by an inter-
state compact. The plaintiff appropriator in that case did
not seek damages, and nowhere in the decision did this
Court state that riparians did not have an individual right
to sue. Yet the Court of Appeals read the Supreme Court’s
holding in Hinderlider as barring damage claims by Dela-

20

ware River riparians against the City. In addition, the
Court of Appeals overlooked the record in Hinderlider in
which the trial court stated that individual riparians had
a right to sue for damages:

*Plaintiff’s counsel seems to concede that this is
not an action for damages, but is for injunction; and
that no... judgment for damages can be rendered.
As this action is brought by the corporation only,
while the prineipal damages (if damages should be
recoverable) accrue to the individual farmers, sep-
arately, that concession of plaintiff’s counsel seems
to be right.” Record, Index No. 487 at 53 (Appendix
L at 3L-4L).

Conclusion

For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Second Cireuit.

Respectfully submitted,

Jack WEINBERG
345 Park Avenue
New York, New York 10022
(212) 593-3000

Counsel for Petitioners
GRAUBARD Moskovitz McGouprick

Daxnett & Horowitz
HerMan E. Gorrrriep

Of Counsel
April 18, 1980

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2005%3A1. Public record. Not legal advice.