Appendix — Canfield v. New York City

Supreme Court, U,

FILED

APR 18 1980

— ROUAK, JR. CLERRE

Supreme Comsat

OCTOBER TERM, 1979

No @9-1644

LLOYD F. and ELOISE i. CANFIELD,

Petitioners,

Vv.

THE CITY OF NEW YORK,

Respondent.

APPENDIX TO 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

GrauBarRD Moskovirz McGo.tprick

Dannett & Horowitz

Herman E. Gorrrriep

April 18, 1980

TABLE OF CONTENTS

Page in

Appendix

Appendix A Opinion of the la-145a

United States District

Court For the Southern

District of New York

Appendix B Judgment of the lb-2b

District Court

Appendix C Opinion of the United le-28c

States Court of

Appeals For the

Second Circuit

Appendix D Judgment of the Court 1d-4d

of Appeals

Appendix E Orders of the Court le-4e

of Appeals Denying

Rehearing and Re-

hearing in banc

Appendix F Constitutional, 1f-14F

Statutory and Regula-

tory Provisions

Involved

Appendix

Appendix

Appendix

Appendix

Appendix

Appendix

Page in

Appendix

Map Showing the Dela- lg

ware River and Three

City Reservoirs

Legislative History lh-4h

of Delaware River

Basin Compact § 14.19

Memorandum Acknowledg- 1i-3i

ing that New York City

Pays Damages to New

York State Riparian

Landowners

Col. l, p. 36

City's Revenues from lk

Water Charges, as Re-

flected in the Comp-

troller's Reports for

Fiscal Years 1970-1977

Report of the Special 1L-2L

Master, New Jersey v.

New York, 283 U.S. 336

Record, Index

No. 64, Original at

23 and 41

Connecticut v. Massa- 2L-3L

chusetts, 282 U.S. 660

, Record, Index

No. 15 at 27-28

ii

Na sy so

Page in

Appendix

Hinderlider v. La 3L-4L

Plata, 304 U.S. 92

), Record, In-

dex No. 437 at 53

iii

i

'

;

!

- ee ete,

APPENDIX A

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

See ew ee mee eee ee ee we Oe ewe oe oe oe X

GEORGE ELWOOD, Administrator 62 Civ.

of the Estate of Beatrice A. 2562-CLB

Van Loan,

Plaintiff,

- against -

THE CITY OF NEW YORK,

Defendant.

----------------------------- X FINDINGS

AND

LLOYD F. CANFIELD and ELOISE CONCLUSIONS

L. CANFIELD,

Plaintiffs, 71 Civ.

5568-CLB

- against -

THE CITY OF NEW YORK,

Defendant.

AND 3 OTHER RELATED ACTIONS.

me oa oe wwe ow on wn on on we oe ee ee X

Brieant, J.

These five actions, consolidated

for trial, have been brought by, or in the

name of, owners of riparian land situated

in Pennsylvania, who claim that the value

of their lands along the Delaware River

la

~I

29 Peat emg

District Court Opinion

and its West Branch was diminished by the

City of New York's diversion of the head-

waters of the Delaware River for public

water supply purposes.

The Court has subject matter juris-

diction based upon diversity of citizen-

ship of the parties at the dates of

commencement of the actions, pursuant to

28 U.S.C. § 1332(a) (1). Trial was before

the Court without a jury, commencing on

June 2, 1975. Post-trial briefs, memoran-

da and submissions of the parties have

been read and considered.

The Delaware River

An understanding of the location,

design and operation of that portion of

the New York City water supply system

drawn from the Delaware River is essential

to an understanding of this litigation.

The Delaware is one of the major rivers on

the Atlantic seaboard. From its sources

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District Court Opinion

in New York State to Delaware Bay, the

River runs 410 miles, and drains a water-

shed of some 12,765 square miles. The

Delaware River has two main branches, the

East Branch and the West Branch. The West

Branch rises north of Stamford, New York

in Delaware County. The East Branch has

its origin near Margaretville, New York.

On its way to the sea, the Delaware River

is joined by many streams and tributaries.

/ The two branches join at Hancock,

New York. Thereafter, the River flows

in a generally southeasterly direction.

Commencing near Deposit, New York, the

West Branch forms the boundary line be-

tween New York and Pennsylvania. At Tri-

State Rock, near Port Jervis, New York,

the boundaries of New Jersey, New York and

Pennsylvania converge. Below Tri-State

Rock, the River constitutes the boundary

between New Jersey and Pennsylvania. The

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District Court Opinion

Lehigh River joins the Delaware near

Easton, Pennsylvania. At the head of

Delaware Bay near Wilmington, Delaware,

it discharges into the Atlantic Ocean.

Pursuant to proceedings in the

Supreme Court, discussed below, the City

of New York constructed Pepacton Reservoir,

on the East Branch of the Delaware near

Downsville, New York. MThis, and all of

the City's reservoirs discussed herein are

located entirely in New York State. No

part of New York City is located in the

drainage basin of the Delaware or any of

its tributaries.

Impoundment of water behind, the dam

erected to create the Pepacton Reservoir

began in September 1954; the first diver-

sion to New York City occurred in January

1955; and the dam spilled for the first

time on April 16, 1956. Pepacton Reser-

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District Court Opinion

voir is 180 feet deep at its deepest point,

and has a capacity of some 147 billion

gallons. The drainage area impounded by

Pepacton is 371 square miles.

Thereafter, the City constructed

Cannonsville Reservoir, on the West Branch

of the Delaware near Stilesville, New York.

Impoundment at the Cannonsville Reservoir

began in September 1963; the first diver-

sion to New York City occurred in January

1964; and that dam first spilled on May 9,

1967. The Cannonsville Reservoir has a

maximum depth of 150 feet and a capacity

of 97.4 billion gallons. The drainage area

impounded by Cannonsville is 450 square

miles. On the Neversink River, a tribu-

tary of the Delaware, the City also has

the older and smaller Neversink Reservoir,

impounding a drainage area of 92 square

miles and having a maximum storage capa-

city of 37.1 billion gallons.

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District Court Opinion

The premises of the plaintiffs de-

scribed below, are all, except for Van

Loan, located downstream of the confluence

of the West Branch and East Branch of the

Delaware, and above the point where the

Neversink River enters the Delaware. The

Van Loan property is situated upstream

from Hancock, near Ball's Eddy, New York,

and is affected only by operation of the

Cannonsville Reservoir.

Water flows in the Delaware River

are affected by the impoundment activities

of third parties. Lake Wallenpaupack in

Pennsylvania has been dammed by a hydro-

electric generating station. It contains

a drainage area of 228 square miles, and

discharges into the Delaware through the

Lackawaxen River at a point upstream from

Barryville, New York, and also upstream

from the Montague, New Jersey gauging

station, mentioned below. As electric

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BU Re eee a a ity oh

tis ctl tant i ct O29 ae PLE IS te A NY SES alg

District Court Opinion

demand varies, the amount of impounded

water being released increases or de-

creases. A similar project on the Mongaup

River in New York State has a similar

effect. The Mongaup also joins the Dela-

ware above Montague, New Jersey.

All plaintiffs are located upstream

from the Lackawaxen, Mongaup and Neversink

Rivers. Streamflow in the Delaware at

their parcels is not augmented when water

is released downstream by the City from

the Neversink Reservoir, or by the genera-

tion of electric power by unrelated per-

sons on the Lackawaxen and the Mongaup.

The function of the three City

reservoirs mentioned above is to impound

spring runoff, store it during periods of

little or no rainfall, and divert the

stored water from the watershed of the

Delaware to the Hudson River Valley by

means of the Delaware Aqueduct System.

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District Court Opinion

The water is used by the City of New York,

and, to a minimal extent, also by other

New York communities situated along the

course of the Aqueduct. After use, it is

discharged into drainage basins other than

that of the Delaware River, generally the

Hudson River and New York Bay.

The term "diversion" is neutral in

the law. It can indicate the perfectly

proper "ordinary and domestic uses," York

Haven Water & Power Co. v. York Haven Paper

Co., 201 F. 270, 275 (3d Cir. 1912), to

which every riparian owner can turn the

waters of a stream flowing through or at

the boundary of his land, so long as he

returns the residue to the stream within

the boundaries of his land. See, Mayor v.

Commissioners, 7 Pa. 348, 367-68 (1847).

To be lawful, such uses need only be

reasonable. Where, however, a riparian

owner's uses of the waters of a stream un-

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District Court Opinion

reasonably deprive a downstream riparian

owner of the value of his location, see,

Williams v. Fulmer, 151 Pa. 405, 414

(1892), by changing the channel, direc-

tion, flow, stage, quality, etc., of the

stream -- all of which are summed up in

the common law phrase “currere solebat,"

-- the diversion invades a valuable pro-

perty right of a downstream owner and is

actionable. See, United States v. Rio

Grande Dam & Irrigation Co., 174 U.S. 690,

702 (1899); Hackensack Water Co. v. Vil-

lage of Nyack, 289 F.Supp. 671 (S.D.N.Y.

1968). The permanent massive diversion of

water out of a channel for uses outside

the drainage area and unconnected with the

ownership and use of riparian land, as, for

example, to add to the water supply of a

community that is not within the drainage

area of the stream, is unreasonable. See,

e.g., Standard Plate Glass Co. v. Butler

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District Court Opinion

Water Co., 5 Pa. Super. Ct. 563 (1897).

At the present time, New York City

relies on three principal sources to meet

its water supply needs. The two older

sources are the Croton System, on the

Croton, Bronx and Byram Rivers, and the

Catskill System, on Esopus Creek and

Schoharie Creek. The Delaware System, com-

prising the reservoirs on the East and

West Branches and on the Neversink River,

is the City's most recent source of supply

and provides fully 50% of the City's needs.

Since in years of normal rainfall the

available water exceeds requirements, the

City can and does draw at varying times

greater or lesser amounts from its differ-

ent sources, having regard to operating

costs, pending maintenance and repair pro-

jects, comparable quality, tastes and

odors, and related operating criteria.

Because of its larger size, and the rela-

10a

ce eee

FO bie a 0 VLE BO AAS eh ARE ae AIDE ae

Ss Ws sh. See a etna

District Court Opinion

tively smaller human population and in-

dustrial activity in the watershed area,

Delaware water is regarded as the best

quality water presently available from the

various City sources. New York chlori-

nates its supply but has not yet found it

necessary to filter or otherwise treat its

water, as do most communities.

The Parties and Their Properties

The lands of four of the plaintiffs

here are located on the Pennsylvania side

of the main body of the Delaware River

between Hancock, New York and Narrowsburg,

New York. The property of one of the

plaintiffs, Van Loan/Elwood, is located

on the Pennsylvania side of the West

Branch, above Hancock, New York near Ball's

Eddy. All are located upstream from

Montague, New Jersey, and upstream from

the points where the Lackawaxen, Mongaup

and Neversink Rivers join the Delaware.

lla

District Court Opinion

(1) Van Loan/Elwood. Mrs. Beatrice

Van Loan was the first of these plaintiffs

to commence action against the City. Con-

sequently, the procedural history of her

action is the most complex.

Mrs. Van Loan owned 124 acres of

land with approximately one-half mile

frontage on the West Branch of the Dela-

ware, about five miles above the confluence

of the East and West Branches at Hancock,

New York. Hers is the only property not

located on the main body of the Delaware.

She bought the property in 1922, and oper-

ated a dairy farm at the time of her death.

On July 23, 1962, she filed her

original complaint seeking to enjoin con-

struction of the Cannonsville Reservoir,

then being built some 10 miles upstream

from her property. She alleged that since

no express statutory provision had been

made by New York State to compensate

12a

4 ER DAL ODI Pl Calas Ia ln A tr AA GR CRB Nitin, Reva

irre WEE

District Court Opinion

Pennsylvania riparians for the City's

damage to riverfront property, the City's

action constituted a "taking" without com-

pensation.

By a Memorandum Opinion dated Novem-

ber 14, 1963, the late Judge McLean of this

Court dismissed Van Loan's complaint as

premature, since the Cannonsville Dam had

not yet been completed and would, when

complete, cause no injury for which money

damages would not be adequate compensation.

Judge McLean granted leave to amend the

complaint when the dam was completed. 2/

Mrs. Van Loan died testate in May

1965. By a Memorandum Decision dated May

31, 1966, Judge Wyatt of this Court allow-

ed the filing of an amended complaint by

George Elwood, the ancillary administrator

d.b.n., c.t.a. of Mrs. Van Loan's Estate,

who had been appointed after the resigna-

tion of the named executor. The amended

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District Court Opinion

complaint was filed on May 4, 1966.

On November 12, 1966, the adminis-

trator sold the Van loan property at

auction for $15,200.00. Title was con-

veyed on February 23, 1967. The admin-

istrator's deed expressly reserved all

rights against the City of New York, for

past or future damages or the taking. The

Deed (Ex. 39) reads in relevant part as

follows:

"ALSO EXCEPTING AND RESERVING unto

the seller, the heirs, legatees

and devisees of the Beatrice VanLoan

Estate or their assigns, a claim or

claims against the City of New York

arising out of and by reason of

rights heretofore acquired and to

be acquired in connection with the

past and future diversion of the

West Branch of the Delaware River

which has already and will cause a

decrease in the market value of the

real estate being sold, and for

business damages heretofore in-

curred, and all aspects thereof."

For a discussion of the effect of

this Reservation of rights see text infra,

PP. 52-53.

l4a

? aac th Wot te iit tin WRT ATI,

District Court Opinion

On August 7, 1967, Judge Bonsal of

this Court denied cross-motions for sum-

mary judgment in the Van Loan/Elwood

| action, holding that apparent disputed

factual issues were present. Elwood v.

City of New York, 271 F.Supp. 62 (S.D.N.Y.

1967).

By a Memorandum Decision dated

March 27, 1973, Judge Pierce ot this Court

dismissed the Elwood complaint for failure

to allege the filing of a Notice of Claim

pursuant to New York General Municipal Law

§§ 50-e and 50-i. However, in light of

plaintiff's claim of a continuing trespass,

leave to amend the complaint on filing of

a Notice of Claim was granted. The Court

noted that "the initial period of the claim

would be limited by this late filing to en-

compass trespass only up to 90 days before

the notice of claim was filed," citing

Hackensack Water Co. v. Village of Nyack,

15a

District Court Opinion

289 F.Supp. 671 (S.D.N.Y. 1968).

Elwood filed his Notice of Claim

on April 24, 1973, and on June 1l, 1973

filed his amended complaint.

(2) Badgley. Mrs. Lillian Badgley

commenced her action against the City on

July 15, 1966. In 1958 she and her

husband had purchased approximately two

acres of land with 530 feet of River

frontage on the main body of the Delaware

River just above the Lake parcel. They

paid $22,500.00 for the property and she

claims to have made some $40,000.00 worth

of improvements on the property in order

to make it into a resort. Her husband,

Foster Badgley, died in 1965, and as a

result, title vested in her. She has since

remarried, to one Dixon, but retains

title to the property in her prior name.

Mrs. Dixon filed her Notice of

Claim against the City on May 24, 1972.

l6a

ee ee Te

ee ee a, ee

District Court Opinion

On March 22, 1973, on the City's

motion in Lake, Badgley and in a third

case, Duryea Pine Flats Hunting Lodge, 66

Civ. 2151, which is no longer pending, 2/

this Court issued a Memorandum Decision

dismissing the complaints with leave to

amend the complaints to include proper

allegations of filing the required Notices

of Clain.

That decision held that, although

the plaintiffs could not avail themselves

of Ticle K of the Administrative Code of

the City of New york, 3/ and although, for

the reasons therein stated, they had suf-

fered no extraterritorial "taking" of their

Pennsylvania property by the City of New

York, they were entitled to pursue their

actions for a continuing trespass, and to

recover "damages not only to the date of

judgment, but for anticipated future in-

jury to the property during the foresee-

17a

District Court Opinion

able life of the diversion works, or in

perpetuity." Td. at 4.

Decision was reserved on the ques-

tion whether, under Pennsylvania law, “one

who conveys title may reserve to himself

[in his deed of conveyance] the right to

assert a claim for a permanent continuing

trespass in futuro," but I rejected the

City's defenses based on the interstate

allocation of the waters of the Delaware

River:

"Nothing is found in New Jersey v.

New York, 347 U.S. 995 (1954), or

in the Delaware River Basin Com-

pact, as approved in Pub. Law 87-

328, or in any Pennsylvania

statute enacted pursuant thereto,

which implies otherwise." Id. at

10.

An amended complaint in Badgley

was filed thereafter, on April 25, 1973.

(3) Lake. Emil and Helen Lake

filed their complaint against the City on

July 15, 1966. At that time they owned

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District Court Opinion

some 15 acres, bought in 1945 and 1951 for

approximately $4,200.00, with 600 feet of

frontage on the main body of the Delaware

just upstream from the Gregory parcel, de-

scribed below.

On September 27, 1968 the Lakes

sold their property for $18,500.00. By

recital essentially the same as that found

in the Elwood/Van Loan deed, they reserved

all rights against the City of New York.

On May 23, 1972, alerted by the

pending City motion to dismiss in Gregory

v. City of New York, supra, the Lakes filed

the Notice of Claim required by the Gener-

al Municipal Law, and amended their com-

plaint on April 4, 1973.

(4) Gregory. George and Helen

Gregory commenced their action against

the City of New York on July 15, 1966.

They are New Jersey residents, who, in

1960, purchased 124 acres of riparian land

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District Court Opinion

in Pennsylvania with some 4,000 feet of

frontage on the Delaware River. They paid

$20,000.00 for the property, which in-

cluded at the time of purchase a house,

barn, sauna and four cottages. Between

1964 and the time of trial they sold some

34.5 acres of their land, including 3,323

feet of River frontage, for $48,900.00,

and retained at the time of trial some 8°

acres and 750 feet of frontage. The

Gregory parcel is located some 39 miles

downstream from the Pepacton Reservoir,

and 22 miles downstream from the Cannons-

ville Reservoir.

In a prior decision [Gregory v.

City of New York, 346 F.Supp. 140 (S.D.N.Y.

1972)], familiarity with which is assumed,

this Court held that the Water Supply Act,

Title K, Chapter 51 of the Administrative

Code of the City of New York, which pre-

scribes a procedure by which owners can be

20a

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District Court Opinion

‘compensated for the City's impairment of

their riparian rights, was not available

to holders of property in Pennsylvania,

but that both New York and Pennsylvania

law provided a cause of action to recover

damages, if any, resulting from the City's

continuing trespass. However, the origin-

al Gregory complaint was dismissed because

of the plaintiffs' failure to file the

Notice of Claim required by Sections 50-e

and 50-i of New York's General Municipal

Law. Plaintiffs were granted leave to

file the Notice, and thereafter, an amend-

ed complaint alleging a continuing tres-

pass to their rights as riparians to the

extent not time barred. On May 25, 1972,

these plaintiffs filed their Notice of

Claim, and on July 27, 1972, filed an

amended complaint demanding $50,000.00

damages tor the City's continuing tres-

pass.

2la

District Court Opinion

The claims alleged in the

Gregory's amended complaint are typical

of those made by all plaintiffs in this

consolidated action, and are as follows:

"That by reason of the aforesaid

diversions of the [Delaware}

river and the trespasses by the de-

fendants herein and absence of

water in said river at the plain-

tiff's premises downstream there-

from, and the permanence of said

diversion and of said trespasses

and past, present and future opera-

tion by the City of New York of

said dams at Cannonsville and

Downsville, and the said Pepacton

and Cannonsville Reservoirs, the

said river has and will become

a swamp, fishing therein has [been]

and will be destroyed, and the

river will become oderiferous, un-

Sightly, and will be unable to

provide plaintiff's property with

ground water and surface water,

will decrease the fertility of said

property, will make such property

unsuitable for recreational pur-

poses, all of which has and will

greatly decrease the market value

of the plaintiff's property and

cause damage thereto by reason of

the foregoing and other effects of

said diversions and trespasses too

numerous to mention, all to the

plaintiff's damage ...." [4 9,

matter in brackets added. ]

22a

District Court Opinion

(5) Canfield. Lloyd and Eloise

Canfield filed their complaint against

the City on December 22, 1971, at which

time they owned 166 acres on the main

body of the Delaware with about 6,700 feet

of River frontage. Their Notice of Claim

against the City was filed on October 20,

1971, and was properly pleaded in their

complaint.

In 1954 Canfield acquired title to

the property, then consisting of 278 acres,

for $5,000.00 from his half brother, Grant

Lee Canfield, a minor under the age of 14

years. This was accomplished through a

judicial proceeding in a Pennsylvania

court in which the Wayne County Savings

Bank as guardian of the Estate of Grant

Lee Canfield, sold the premises to these

plaintiffs for $5,000.00. 4/

The Court has visited each of the

premises affected by this litigation and

23a

District Court Opinion

has made a personal inspection thereof in

the presence of counsel for all parties.

The price of $5,000.00 paid for the Can-

field property, even in 1954, could not

be, and is not regarded as reflecting an

arms length sale. The price which a fully

informed seller under no necessity of

making a prompt sale would receive from an

unrelated purchaser, in an arms length

sale would be much larger.

In a Memorandum Decision dated May

11, 1972, Judge Tenney of this Court de-

nied the City's motion to dismiss the

Canfield action, holding that the plain-

tiffs had a cause of action for a continu-

ing trespass, and that the measure of

damages for such trespass was the same as

that provided in Title K of the Administra-

tive Code of the City of New York, to wit:

the difference between the market value of

the property with the City’s diversion of

24a

District Court Opinion

the stream and the market value without

such diversion.

Class action status was denied in

the Canfield case after the decision of

the Supreme Court in Zahn v. Int'l. Paper

Co., 414 U.S. 291 (1974). The Canfields

had participated unsuccessfully in the

Zahn case as amicus curiae favoring plain-

tiff Zahn's position. They had planned

to assert the interest of all downstream

owners adversely affected by the diversion.

Some part of the delay in the case arose

while the parties awaited the resolution

of the Zahn class action issue.

25a

District Court Opinion

Proceedings Affecting the Delaware River;

The River Master

Beginning in 1929, the City of New

York planned the diversion of the Delaware

River and its tributaries to meet the in-

creasing municipal water supply needs of

the City, and other municipalities depen-

dent on the City for all or part of such

supply.

To restrain this proposed diversion,

the State of New Jersey began an original

suit in the Supreme Court against the

State of New York and the City. Pennsyl-

vania intervened to protect its own sover-

eign interests in the Delaware River. New

Jersey v. New York, 283 U.S. 336 (1931).

The Supreme Court found the River

and its tributaries "a necessity of life

[to] be rationed among those who have

power over it,” id. at 342, and applied

the federal common law doctrine of equita-

26a

District Court Opinion

ble apportionment, to allow the City to

divert from the Delaware watershed up to

440 million gallons of water a day, pro-

vided certain stream management conditions

were met. Principal among these was the

requirement that a sewage treatment plant

be constructed at Port Jervis, New York,

to lessen the accumulated pollution pre-

sent in the diminished downstream flow of

the River. A constantly maintained flow

of .50 c.s.m. (1,535 c.f.s.) was also re-

quired to be maintained at Montague, New

Jersey, just below Port Jervis.

The Supreme Court retained continu-

ing jurisdiction over its equitable decree

in order to adjust the rights of the

parties as equity might require in the

future. The Court explicitly held that

the diversion should "not constitute a

prior appropriation, and shall not give

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District Court Opinion

the State of New York and City of New

York any superiority of right over the

State of New Jersey and Commonwealth of

Pennsylvania in the enjoyment and use of

the Delaware River and its tributaries."

Id. at 347.

Until 1953, when the Neversink

Reservoir was completed, the City did not

avail itself of its right under this de-

cree to withdraw 440 m.g.d. from the

Delaware and its tributaries. The Never-

sink is tributary to the Delaware at a

point downstream from the properties

which are the subject of this suit. These

plaintiffs were not affected by the diver-

. sion of water from the Neversink. Those

waterworks are involved here only insofar

as releases from Neversink Reservoir form

one element contributing to the combined

minimum flow that must be maintained at

Montague, New Jersey under the Supreme

28a

District Court Opinion

Court's revised Decree of 1954. Fora

discussion of compensation of riparians

on the Neversink River, see In re Ford

(Whitton), 35 App.Div.2d 626 (3d Dept.

1970). All such properties are in New

York State.

In 1952, the City, with the appro-

val and support of New York State, peti-

tioned the Supreme Court for a modifica-

tion of the 1931 Decree which would allow

additional diversions of water from the

Delaware by means of proposed dams at

Cannonsville and Downsville (Pepacton) New

York. The petition was allowed. New

Jersey v. New York, 343 U.S. 974 (1952).

A motion by the City of Philadelphia to

intervene in the proceedings to protect

its interests in the River was denied on

the finding that its rights were "invari-

ably served by the Commonwealth's [i.e.,

Commonwealth of Pennsylvania's] position."

29a

District Court Opinion

345 U.S. 369, 374 (1953).

In 1954, the Supreme Court modified

and superseded its 1931 Decree. 347 U.S.

995 (1954). Under the terms of the new

Decree, the City was allowed to continue

the diversion of 440 m.g.d. from the Dela-

ware and its tributaries until the comple-

tion of the Pepacton Reservoir then under

construction on the East Branch, at which

time it could begin to divert 490 m.g.d.,

subject to a requirement of maintaining

a flow of 1,525 c.f.s. at Montague, New

Jersey. After the completion of the

Cannonsville Reservoir on the West Branch

of the Delaware, the City was authorized

to divert the full amount of 800 m.g.d.

on a cumulative average basis, subject

again to the requirement of maintaining

a minimum flow of at least 1,75" c.f.s.

at Montague, New Jersey.

In addition to the aforementioned

30a

\

District Court Opinion

minimum flow requirement at Montague, New

Jersey, the City is also required to re-

lease an "excess release quantity" of its

impounded water into the Delaware. Essen-

tially, this is a device to enable the

City gradually to adapt to increased de-

mands for water. On the first day of each

calendar year, the City is required to

make an estimate of its total annual con-

sumption of water from all sources (exclu-

ding pumping) for the next year. This

estimate is based on the maximum consump-

tion for any previous year plus an annual

increment of 7.25 billion gallons. The

City is then required to release over any

120 day period after the fifteenth day of

June of each year, an additional amount of

water into the Delaware equal to 83% of

the amount by which its estimated consump-

tion and yearly increment exceed 1,665

3la

District Court Opinion

m.g.d. (the City's minimum "safe yield"

from all sources, excluding pumping, as

determined by the Supreme Court). In no

calendar year is this "excess release

quantity” of water so computed required

to exceed 70 billion gallons, and the City

is never required to maintain a flow at

Montague, New Jersey greater than 2,650

c.f.s. Since 1968, as New York City's

consumption has increased, this "excess

release quantity” has steadily diminished.

At the time of trial, the flow at Montague,

New Jersey was being maintained at approx-

imately 2,000 c.f.s.

Under the system of stream manage-

ment established by the Supreme Court, any

daily diversion, no matter how large, is

permitted from any one or all of the three

reservoirs (Pepacton, Cannonsville and

Neversink) so long as the required mini-

mum flow at Montague, New Jersey is main-

32a

District Court Opinion

tained, and so long as the quotient cf the

total amount of water diverted that year,

divided by the number of days of the year

to that date, does not exceed 800 m.g.d.,

and so long as it satifies the “excess

release quantity" provision.

In its 1954 Decree, the Supreme

Court appointed a River Master, the Chief

Hydraulic Engineer of the United States

Geological Survey, to oversee and imple-

ment the Decree. It is the River Master's

duty to require the City to maintain the

required flow at Montague. Under the

Decree, the City is not required to make

any releases of impounded water unless

and until the River Master calls for them.

On at least one occasion, during the

drought in June 1965, the City has refused

to comply with the River Master's requests

3/

for increased flow.—

33a

District Court Opinion

Under the provisions of the re-

vised Decree, the Supreme Court continued

to retain jurisdiction over the contro-

versy. 347 U.S. at 1005. The City has a

continuing equitable duty to develop its

available sources of water to meet its in-

creasing needs, by the construction of

additional impoundment and storage facili-

ties, and by developing those other sources,

including the Hudson River, directly avail-

able to it, and can be required to do so

by the Supreme Court. All parties have

assumed, correctly, that in times of un-

usually high consumption, drought, fires

or similar situations of short or long

duration, the City would discharge its

obligations to the public consumers of

water prior to performing its duties owed

under the Decree to downstream communi-

ties and riparian owners. When and how

34a

District Court Opinion

often in the future the City, will refuse

ex necessitate to comply with the River

Master's requests presents a question

which is primarily speculative, but plain-

tiffs and the Court must assume that such

occasions will arise again during the

existence of these Dams, as happened in

1965.

A more serious and recurring pro-

blem with this regulatory scheme from the

point of view of these plaintiffs is that

the River Master is unconcerned, nor is

he required to be concerned, with the

sources of the required minimum flow at

Montague. In planning how to assure the

daily flow at Montague, the River Master

must and does take into account the anti-

cipated releases resulting from electric

power generation on the Mongaup and the

Lackawaxen (Lake Wallenpaupack), describ-

ed supra, p. 4.

35a

———a—aaaaaoO7'O73T rae

District Court Opinion

These electric generating utilities

each make independent determinations as to

the amount of water which will be dis-

charged. Such determinations are based

only on the economics of the electric

generating activities of the utility, and

the demand for power. The amounts of such

discharges are unpredictable, and vary

significantly from day to day. There is

no provision in the Delaware River Compact

or the Supreme Court's Decree by which

the River Master can require the power

plant operators to make any minimum re-

lease from impounded water on any particu-

lar date, in addition to that needed for

power generation. Presumably, provisions

authorizing any such direction would re-

quire compensation to be made to the power

6

plant owners.—

36a

District Court Opinion

Uncontradicted testimony at trial

showed that the River Master has relied

increasingly over the years on these

power plant releases to make up the re-

quired flow at Montague. Only when the

projected run-off of all upstream tribu-

taries and the projected releases of the

two power plant reservoirs are anticipated

to produce less than the minimum required

flow at Montague Gauging Station does the

River Master call on the City for net

releases from its dams. These demands, in

a typical year, range from zero to as much

as 1.5 billion gallons on a given day.

Once a demand has been made upon

the City for releases to maintain the re-

quired flow at Montague, the City is faced

with a choice of three reservoirs (Cannons-

ville, Pepacton, Neversink) from any or

all of which it may make the required re-

37a

District Court Opinion

leases in whole or in part.

The testimony of the City's expert

witness, Mr. Paul Blomquist, former head

of the Bureau of Claims of the Board of

Water Supply for the City, establishes the

existence of a general policy of the City

to make major releases through the Cannons-

ville dam because of its greater release

capacity (2,440 c.f.s., as compared with

760 c.f.s. from the Pepacton Reservoir) ./

On numerous occasions these re-

leases from the Cannonsville Reservoir

into the West Branch have amounted to

approximately One Billion Gallons during

a day.

A second decision facing the City

is the time span within which to make its

required releases. The River Master re-

quires only an average daily flow at

Montague, and it is within the discretion

of the City to release the required

38a

District Court Opinion

amounts over the whole 24-hour period, or

in some shorter time. No evidence was

introduced, however, which would indicate

that such precipitous releases have ever

been made by the City.

The final element affecting the

flow of water in the River is the "con-

servation releases" that the City is re-

quired by order of the New York Supreme

Court to make daily from each of its re-

servoirs releasing into the Delaware

River. Such releases must be made inde-

pendently of any called for by the River

Master, but they are taken into considera-

tion by the River Master in projecting the

flow at Montague. The Cannonsville Reser-

voir is required to release 15 m.g.d. dur-

ing the summer (April 16th through

November 30, inclusive) and 5 m.g.a. dur-

ing the winter (December lst through

April 15th, inclusive); the Pepacton

39a

District Court Opinion

Reservoir is required to release 12 m.g.d.

during the summer (April 8th through Octo-

ber 3lst, inclusive) and 4 m.g.d. in the

winter (November lst through April 7th,

inclusive). These figures were arrived

at on the basis of pre-diversion low flows

in the West and East Branches, and were

ordered in order to maintain the environ-

mental quality of the River. It has

frequently happened that these "conserva-

tion releases” were, over extended periods

of time, the only waters released into

the Delaware River from the City's reser-

voirs. The right to have such "conserva-

tion releases" continued into the indefin-

ite future is, of course, not graven in

stone, nor do these plaintiffs have any

vested property right in their perpetua-

tion.

All the City's dams release water

into the Delaware River from spillways or

40a

District Court Opinion

outlets at the bottom of the dam.

Because the required minimum flow

is implemented at the Gauging Station at

Montague, New Jersey, downstream from Port

Jervis, when the River Master calls upon

the City to release water from its various

impoundments, he does so based only on the

flow at Montague, and makes no specifica-

tion as to the facility from which the

City shall make the required releases.

As a result, the flow of water past

plaintiffs' premises on any given day is

not directly assured by provisions of the

Decree and of the Compact, all of which

are directly related to the flow at Monta-

gue, New Jersey, affected in great degree

by power company releases and Neversink

releases, which, as noted, enter the

Delaware upstream of Montague, but down-

stream from plaintiffs' properties. The

various facilities, drainage areas and

4la

se

District Court Opinion

their relative locations with respect to

each other and the plaintiffs’ premises

are all set forth in Defendant's Ex. A.

The Delaware River Compact and New York's

Environmental Conservation Law

In 1961, all of the states touching

on the Delaware River and affected by its

flow entered into an Interstate Compact,

with the approval of Congress, creating

a Commission to regulate all diversions

of water from the Delaware. Pub.L. No.

87-328, 75 Stat. 688 (1961). Section 3.5

of the Compact specifically prevented the

Commission from impairing rights created

by the Decree in New Jersey v. New York

in 1954, except by the unanimous consent

of the parties to that Decree. Under

section 3.4, the parties relinq ished,

with certain immaterial exceptions, their

rights to apply to the Supreme Court for

a modification of the 1954 Decree.

42a

District Court Opinion

On July 27, 1976, without consulta-

tion with the other signatory parties to

the Compact or with the parties to the

1954 Supreme Court Decree, New York enac-

ted an amendment to Title 15 of the New

York Environmental Conservation Law, en-

titled "Regulation of Reservoir Releases."

Although this occurred after the trial in

this matter, the record in the case was

re-opened and a hearing held on September

14, 1976, in order to consider the effect,

if any, of the new statute.

The legislative findings accompany-

ing the amendment are in relevant part

as follows [matter in brackets added]:

"(T]he legislature hereby finds

that the volume and abrupt changes

in the volume of releases of water

from impounding reservoirs of water

having a capacity of more than one

billion gallons [including the

Cannonsville and Pepacton Reser-

voirs] and located in the counties

of Delaware, Greene, Putnam,

Schoharie, Sullivan, Ulster and

Westchester have damaged the re-

43a

District Court Opinion

creational uses, such as trout

fishing and canoeing, of waters

affected by such releases, that

such waters are a recreational

resource for residents from all

parts of the state of New York

and elsewhere, that such recrea-

tional resource benefits the

economy and welfare of this state

and that the volume and rate of

change of volume of such releases

can be regulated to protect and

enhance the recreational use of

waters affected by such releases

while ensuring and without im-

pairing an adequate supply of

water for power production or for

any municipality which uses water

from such reservoirs for drinking

and other purposes." (N.Y. Envir.

Conserv. L. § 15-0801).

Under the provisions of the law,

the New York Commissioner of Environmental

Conservation is empowered to promulgate

rules regulating the "volume, timing and

rate of change in volume of releases of

water" from impounding reservoirs in order

to achieve the purposes of the Act. Id.

§ 15-0805(2).

The new statute is silent on the

effects, if any, of the 1954 Supreme Court

44a

District Court Opinion

Decree or’ the Interstate Compact on the

Commissioner's powers.

In late 1976, at the request of

the Supreme Court, the parties to the 1954

Decree submitted memoranda concerning the

effect, if any, of the New York legisla-

tion on that Decree. In its Memorandum,

the State of New York concedes, as it

must, that "the new law cannot legally

conflict with the Decree, [and consequent-

ly] must be enforced so as to dovetail

directly with the Decree." Memorandum at

p. 7. The proposals for regulations sub-

mitted to the Commissioner by the State

incorporate this principle. Id.

By a letter of January 22, 1977,

the Clerk of the Supreme Court advised the

River Master that the Court contemplated

no further action in the matter.

In June 1977, the parties to the

45a

District Court Opinion

1954 Decree signed a Memorandum of Agree-

ment stipulating to a two-year redistribu-

tion of the "annual excess quantity" com-

mencing on June 1, 1977. The River Master

approved this Agreement on July 7, 1977.

Under the provisions of the June i

1977 Agreement, the Pepacton Reservoir

must release 70 c.f.s. of water each day

from April through October of each year,

and 50 c.f.s. daily from November through

March. The Cannonsville Reservoir must

release 45 c.f.s. daily from April lst

through June 14th; 325 c.f.s. daily from

June 15th through August 15th; 45 c.f.s.

daily from August 16th through October

3lst; and 33 c.f.s. daily from November

lst through March 3lst, each year. In

addition, at times and from reservoirs to

be determined by the State of New York,

an amount not to exceed 6,000 second-

46a

District Court Opinion

foot-days per year must be released. The

stated purpose of the releases is to pre-

vent, as far as possible, the water tem-

perature of the Delaware from exceeding

75° F., as measured at Callicoon, New

York.

This Agreement between the parties

to the 1954 Decree obviates, at least

until its expiration in May 1979, any

possible conflicts between the New York

legislation and the Supreme Court Decree.

In essence, the Agreement merely redistri-

butes the "excess release quantity” cna

daily basis, rather than over a 120-day

period. The schedules governing the re-

leases will be met only "to the extent the

annual excess quantity will permit ...."

Memorandum of Agreement at 2. Over the

year, no quantity of water will be re-

leased into the Delaware greater than the

47a

District Court Opinion

amount which would have been released

under the superseded system. Furthermore,

it is implicit in the regulatory scheme

that any excess releases are subject to

the paramount needs of the City's water

consumers in the event of extreme drought

and/or temporary failure of the Croton or

Catskill systems.

On November 2, 1977, the Commis-

sioner of Environmental Conservation

issued the regulations required by section

15-0805 of New York Environmental Conser-

vation Law. 6 N.Y.C.R.R. Part 671.1. The

regulations establish a two-year experi-

mental program running concurrently with,

ent exactly duplicating the provisions of

the June 1977 Memorandum of Agreement

entered into between the parties to the

1954 Supreme Court Decree. The results

of this experimental program, in turn,

will "provide a basis for determining the

48a

District Court Opinion

manner such [reservoir] releases should

be regulated on a long-term basis." 6

N.Y.C.R.R. § 671.1.

These regulations also specifical-

ly preserve all rights established under

the Supreme Court's Decree, and set the

maximum quantity of water to be released

yearly under the regulations as the sum

of (1) the releases necessary to maintain

a flow of 1,750 c.f.s. at Montague, New

Jersey, (2) the court-ordered conserva-

tion releases; and (3) the "excess

quantity" releases required by the 1954

Decree. 6 N.Y.C.R.R. § 671.8.

In essence, the new regulations and

the June 1977 Memorandum of Agreement

merely provide for a more rational dis-

tribution of excess water already required

to be released. As we discuss, infra pp.

45-51, a substantial item of damage re-

sulting to plaintiffs from the City's

49a

District Court Opinion

impoundment and diversion activities on

the Delaware and its tributaries is caused

by (1) a marked change (decrease) in the

average stream temperature of the water,

compared to that found prior to the

activities complained of; and (2) drastic

fluctuations during the summer months

occurring as the City makes sudden re-

leases of water from the colder, bottom

levels of its dams.

The long-term effect of these re-

leases on ameliorating this situation with

respect to water temperatures on the Dela-

ware River is speculative at best. The

City has consistently maintained, both

before the Commissioner of Environmental

Conservation and in this Court, that any

requirement in future permanent regula-~

tions that quantities of water be re-

leased in excess of those ordered by the

50a

District Court Opinion

- River Master would conflict with the 1954

Supreme Court Decree. The City points to

the River Master's power over the "super-

vision and direction" of releases, New

Jersey v. New York, 347 U.S. 995, 997

(1954), and to the fact that releases in

excess of those required by the River

Master have in fact never been made by

the City. For our purposes we concur in

the validity of the legal position taken

by the City, namely that the scheme of

river regulation found in the Supreme

Court Decree as amended is paramount.

While a municipal corporation enjoys no

rights under the Fourteenth Amendment

against the state which created it, there

are probably intervening rights of indi-

vidual and corporate water users in the

City which would be protected in a proper

case, arising out of the Supreme Court

5la

District Court Opinion

Decree.

Plaintiffs' Property Rights Under Pennsyl-

vania Law

In prior decisions in these cases

it has been consistently held that under

Pennsylvania law riparian property owners

enjoy rights in the natural flow of their

adjacent streams, for injury to which they

are entitled to bring an action for a

continuing trespass. Familiarity with

these prior holdings is assumed. Because

the City has argued at length that all of

the cases relied on in prior decisions in-

volve riparian rights on non-navigable

rivers, the Court will consider the issue

further.

Under our diversity jurisdiction,

we are bound here by New York choice-of-

law rules. Klaxon Co. v. Stentor Electric

Manufacturing Co., 313 U.S. 487 (1941);

52a

District Court Opinion

Rosenthal v. Warren, 475 F.2d 438 (2d

Cir.), cert. denied 414 U.S. 856 (1973).

Under the New York conflicts rules, when,

as is the case here, the property against

which the tort was committed is located

in Pennsylvania, and the last act neces-

sary to complete the tort (i.e., the

damage) occurred there, the law of Pennsyl-

vania regulates the property rights of the

plaintiffs, and defines the tort against

those rights. It also determines the re-

covery. This is so whether the older lex

loci delicti rule or the more current

"center of gravity" or "grouping of con-

tacts" theory is applied. See, Babcock

v. Jackson, 12 N.Y.2d 473 (1963); Conklin

v. Canadian-Colonial Airways, 266 N.Y. 244,

248 (1935).

Under the common law of England as

applied in most of the states on the

53a

a

District Court Opinion

Atlantic seaboard, the holder of lands

adjacent to a fresh-water stream, no

matter what its size, was presumed to hold

title to the stream and its bed ad medium

filum agquae (to the center thread of the

waters). Such riparian holders accord-

ingly possessed certain extraordinary

rights in the stream, such as the right to

an exclusive fishery. See generally,

Attorney-General v. Philpott (1632) [un-

reported, but discussed in Attorney-

General v. Richards, 145 Eng. Rep. 980

(Ex. 1795)]; S. Moore, A History of the

Foreshore and the Law Relating Thereto,

896-907 (3d ed. 1888); Fraser, Title to

the Soil under Public Waters--A Question

of Fact (pts. 1-2), 2 Minn. L. Rev. 313,

429 (1918).

The contrary presumption prevailed

when lands adjoined tidal waters. The

holders of such lands were presumed to

54a

District Court Opinion

hold only to the line of mean-high water.

See generally, Dolphin Lane Associates,

Ltd. v. Town of Southampton, 37 N.Y.2d

292 (1975); Deveney, Title, Jus Publicumn,

and the Public Trust: An Historical

Analysis, * Sea Grant L. J. 13 (1976).

Both of these presumptions were

phrased in terms of "navigability": tidal

water was by definition "navigable," and

fresh water "“non-navigable.”

This legal system was poorly suited

to America, with its great coastal rivers,

and historical practice of using mountain

streams for driving logs. Accordingly,

several states, including Pennsyivania,

adopted the rule of the civil law accord-

ing to which title to lands adjoining

eben’ which were navigable-in-fact ex-

tended only to the line of high or low

water, rather than to the thread of the

stream. See, Rundle v. Delaware & Raritan

55a

——--

District Court Opinion

Canal Co., 55 U.S. 79, 90-91 (1852); 3

Kent's Commentaries *430-31 (12th ed. 1873).

It is settled under Pennsylvania

law that the main body of the Delaware

River is navigable-in-fact. See, Rundle,

supra; Fulmer v. Williams, 122 Pa. 191, 15

A. 726 (1888); Carson v. Blazer, 2 Binn.

475 (Sup. Ct. Pa. 1810). Under the cri-

teria there set forth, as well as under

the commonly accepted and applied federal

criteria, it is clear, and I so find, that

all of the sections of the Delaware River

relevant to this case, including the West

Branch adjacent to the Van Loan/Elwood

property, are navigable-in-fact. See,

e.g., The Daniel Ball, 77 U.S. (10 Wall.)

557, 563 (1870).

The Van Loan/Elwood property is

located near Ball's Eddy, less than five

miles above the confluence of the East and

West Branches of the Delaware. In the last

56a

District Court Opinion

century, considerable rafting of lumber

was done between Hancock, New York and

Deposit, New York on the West Branch, and

at the time "Ball's Eddy was said by some

to be the rafting center of the West

Branch of the Delaware, and more timber

was reported rafted from [there] than any

other one point along this branch.”

Leslie C. Wood, Rafting on the Delaware

River, 179 (Livingston Manor, N.Y. 1934).

See also, Report of the Special Master at

83, and Finding of Fact No. 25, at 203,

affirmed by the Supreme Court, New Jersey

v. New York, 283 U.S. 336 (1931).

Under Pennsylvania law, title to

lands adjoining navigable waters runs to

low-water mark, with the lands between

high and low-water mark being subject to

the public's superior right of navigation

and fishery. See, Pa. Act of June 25,

1937, P.L. 425 (1937); Shaffer v. Baylor's

57a

District Court Opinion

Lake Association, 392 Pa. 403, 141 A.2d

583, 585 (1958); Monongahela Bridge Co.

v. Kirk, 46 Pa. 112 (1863); Bailey v.

Miltenberger, 31 Pa. 37 (1856); Shrunk v.

Schuylkill Navigation Co., 14 S. & R. 70,

78-79 (Sup. Ct. Pa. 1826); 3 Kent's Com-

mentaries *427(d) (12th ed. 1873).

Basing its arguments on this re-

jection by Pennsylvania of the common law

doctrine of title to mid-stream on non-

tidal rivers, the City has argued that

Pennsylvania has also rejected the entire

common law doctrine of riparian rights on

such waters, and consequently plaintiffs

have no rights against which a trespass

could be committed.

There is no doubt that some ripar-

ian rights held at common law are not

possessed by riparian holders on the Dela-

ware River. See, e.g., Shrunk v. Schuyl-

kill Navigation Co., supra and Carson v.

58a

District Court Opinion

Blazer, supra, which deny such holders an

exclusive right of fishery.

The majority of cases referred to

by defendant, however, are based on the

unquestioned fact that riparians on navig-

able water in Pennsylvania do not hold

title to the water itself, and may use it,

for example, as a source of power, only at

the will of the state. See, e.g., Rundle

v. Delaware & Raritan Canal Co., 55 U.S.

79 (1852); Susquehanna Canal Co. v. Wright,

9 Watts & S. 9 (Sup. Ct. Pa. 1845); Monon-

gahela Navigation Co. v. Coons, 6 Watts &

S. 101 (Sup. Ct. Pa. 1843). These cases

are totally inapposite here, however, both

because they relate to the absolute owner-

ship of the water of a navigable stream--

which is not in contention here--and be-

cause they are uniformly based on the Com-

monwealth of Pennsylvania's superior right

59a

District Court Opinion

to control the flow of streams in aid of

navigation. Moreover, even these cases

relied on by defendant do not purport to

exclude all riparian rights along naviga-

ble streams. See, e.g., Mayor v. Com-

missioners, 7 Pa. 348, 367-68 (1847),

which holds that a riparian owner on the

navigable Schuylkill River retains the

right to reasonable diversion and use of

the stream.

At common law, every riparian en-

joyed the right to have the stream flow

as it was wont <o flow:

"The unquestioned rule of the

common law was that every riparian

owner was entitled to the contin-

ued natural flow of the stream. It

is enough, without other citations

or quotations, to quote the lan-

guage of Chancellor Kent, 3 Kent

Com. § 439:

"Every proprietor of lands

on the banks of a river has natur-

ally an equal right to the use of

the water which flows in the

stream adjacent to his lands, as

it was wont to run (currere

solebat) without diminution or

60a

District Court Opinion

alteration. No proprietor has a

right to use the water, to the

prejudice of other proprietors,

above or below him, unless he has

a prior right to divert it, or a

title to some exclusive enjoyment.

He has no property in the water

itself, but a simple usufruct while

it passes along. Aqua currit et

debet currere ut currere solebat

is the language of the law. Though

he may use the water while it runs

over his land as an incident to

the land, he cannot unreasonably

detain it, or give it another direc-

tion, and he must return it to its

ordinary channel when it leaves

his estate.""™ United States v. Rio

Grande Dam & Irrigation Co., 174

U.S. 690, 702 (1885) (emphasis

added).

The Pennsylvania courts have fre-

quently affirmed this common law doctrine

of riparian rights in relation to non-

navigable streams. See, e.g., Scranton

Gas & Water Co. v. Del. L. & W. R.R. Co.,

240 Pa. 604, 88 A. 24 (1913); James v.

West. Chester Borough, 220 Pa. 480, 69 A.

1042 (1908); Lord v. Meadville Water Co.,

135 Pa. 122, 19 A. 1007 (1890). They have

A

just as frequently made it clear that,

6la

District Court Opinion

except for exclusive fisheries and rights

based on actual possession of the water

of a stream, the riparian on navigable

waters in Pennsylvania possesses the same

rights as a riparian on non-navigable

waters.

In Williams v. Fulmer, 151 Pa. 405

(1892), the defendant, an upper riparian

owner on the navigable Lehigh River, di-

verted the stream from plaintiff's dam

and defended his actions with much the

same contentions as those made here by

the City of New York. The Court held that

the right to the water power itself had

been granted by the Commonwealth exclu-

Sively to a third party, "but that the

plaintiff was nevertheless entitled to re-

cover for any injury he had sustained by

reason of the diversion of the stream from

its natural channel along the front of his

62a

land

District Court Opinion

cooe” Id. at 413.

"[Plaintiff] was the owner of land

lying upon a navigable stream. The

advantages of his location were in-

separable from the ownership of

the land, and if they increased its

desirability or added to its value

for purposes of business or of

pleasure they were his property as

truly as the land itself.

The diversion of the stream was an

injury to his land that was direct,

peculiar, and not shared with the

general public. It was as clearly

actionable as the diversion of a

stream passing over his land. Who-

ever brought about such diversion

so as to deprive him of the advan-

tages of his location, whatever

they were, inflicted a pecuniary

wrong upon him. The manner in

which the diversion is brought

about is not important .... The

lower riparian owner would be de-

prived of the natural advantages

which ownership of the land at

that point gave him, by the un-

lawful act of another; and he would

have a right to call upon the wrong-

doer to repair the wrong done him

by restoring the stream to its

channel or making compensation for

its loss." Id. at 414. (Emphasis

added. )

See also, City of Philadelphia v. Common-

wealth,

284 Pa. 225 (1925); Citizens Elec-

63a

District Court Opinion

tric Co. v. Susquehanna Boom Co., 270 Pa.

7

517 (1921); 39 Pennsylvania Law Encyclo-

pedia,

Waters § 219 (1961).

The Third Circuit has summarized

Pennsylvania's position on the riparian

rights

waters:

of holders of land on navigable

"The ordinary rights of the owner

of lands along which or through

which a nonnavigable stream passes,

have been long settled and are well

understood. Such owner may use a

stream thus flowing for his ordin-

ary and domestic uses, or for any

extraordinary purposes, so long as

such extraordinary use does not

interfere with the rights of others

along or through whose lands the

stream flows. These rights are in-

cident to the lands in contact with

the stream. They pass with the

land and do not exist except in

relation thereto. Enjoyment of

such rights, in whole or in part,

however, may be granted by the

owner of the land to another, but

the grantee has no property there-

in, and the stipulated enjoyment is

only enforceable against the

grantor.

The rights of riparian owners on

navigable streams are essentially

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District Court Opinion

of the same character. Generally,

they consist of right of access to

the stream, as a public highway,

and to such use of the water and

the flow thereof as will not in-

terfere with the public rights

of navigation. There are other

subordinate rights, such as the

right to wharf into the stream, so

far as it may not interfere with

the rights of others or with pub-

lic navigation; the rights of

fishery, etc. These rights, which

may be called the natural rights

of a riparian owner, are incident

to the ownership of the land bor-

dering upon the stream, whether

navigable or not, and pass to the

grantee of such lands without

special mention in the deed of

conveyance. If notoriously naviga-

ble, or declared to be so by legis-

lative enactment, these natural

rights are restricted so far as to

exclude the right to any serious

diversion of the water, by damming

or otherwise. On such streams or

rivers, the right to dam for mill-

ing purposes must be conferred by

an exercise of the legislative will

amounting to a license." York

Haven Water & Power Co. v. York

Haven Paper Co., 201 F. 270, 275-76

Accordingly, I find that these

Pennsylvania plaintiffs were possessed of

all the rights of riparians at common law,

65a

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District Court Opinion

except for those rights, such as exclu-

sive fishery and title to the bed and flow

of the stream, that had been excluded

by Pennsylvania's modi*ication of the

common law.

Most important of these rights

was the right to the full natural flow

of the Delaware River, both for commer-

cial and recreational purposes, aqua

currit et debet currere ut currere solebat.

Included in the concept of natural flow

is not only the right to an undiminished

flow of the stream [Clark v. Pennsylvania

R. R. Co., 145 Pa. 438, 22 A. 989 (1891)],

but also the right to be free of unreason-

able increases or fluctuations in the flow,

Kauffman v. Griesemer, 26 Pa. 407 (1856);

Miller v. Miller, 9 Pa. 74 (1848); Stand-

ard Plate Glass Co. v. Butler Water Co.,

5 Pa. Super. Ct. 563 (1897), and inciden-

tal rights, such as the right to a water-

66a

District Court Opinion

table maintained at its natural level.

Craig v. Shippensburg Borough, 7 Pa. Super.

Ct. 526 (1898).

We have not been cited to, nor able

to find a Pennsylvania case directly rul-

ing on the sort of thermal pollution of

water involved here, but I believe that the

common law of Pennsylvania includes a

right to be free from such pollution and

from unreasonable fluctuations in water

temperature which cause actual damage. A

district court sitting in diversity must

determine the common law of a state by ex-

amining the rationale for a given rule, de-

velopments in other states, and analogous

areas of other states’ law. See, Bern-

hardt v. Polygraph Co. of America, 350

U.S. 198 (1956). Here, the right claimed

exists in other jurisdictions, and pre-

sumably would be recognized by Pennsyl-

vania's highest Court if the situation

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District Court Opinion

were to arise. See, Sandusky Portland

Cement Co. v. Dixon Pure Ice Co., 221 F.

200 (7th Cir.), cert. denied 238 U.S. 630

(1915).

For a trespass against these ri-

parian rights, in this case a continuing

trespass with permanent damage, a cause of

action for damages exists under Pennsyl-

vania law. See, Gregory v. City of New

York, 346 F.Supp. 140, 144 (S.D.N.Y. 1972);

Elwood v. City of New York, 271 F.Supp. 62

(S.D.N.Y. 1967); Cochran Coal Co. v.

Municipal Management Co., 380 Pa. 397,

110 A.2d 345 (1955); Clark v. Pennsylvania

R. R. Co., 145 Pa. 438, 22 A. 989 (1891);

Lord v. Meadville Water Co., 135 Pa. 122

(1890); Craig v. Shippensburg Borough, 7

Pa. Super. Ct. 526 (1898).

Finally, plaintiffs’ rights here

are not subject to or diminished by any

68a

District Court Opinion

correlative riparian right of the City to

reasonable use of the waters of the Dela-

ware. The Special Master appointed in

1930 in New Jersey v. New York found that

the City is not riparian to the Delaware

or its tributaries. Report of the Special

Master at 36 (1931). Even if the City

were a riparian owner, however, its di-

version of such enormous quantities of

water from the River and out of the Dela-

ware watershed is unreasonable. See,

Scranton Gas & Water Co. v. Delaware,

Lackawanna & Wester R. R., 240 Pa. 604

(1913); In re Haupt's Appeal, 125 Pa. 211

(1889); Standard Plate Glass Co. v. Butler

Water Co., 5 Pa. Super. Ct. 563 (1897).

Defenses Based on the Supreme Court's

Apportionment of the Delaware River

Under this heading we discuss all

the defenses raised by the City of New

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District Court Opinion

York based on the Delaware River Basin

Compact (1961) and on numerous Supreme

Court decisions adjudicating the rights

of states, among themselves, to inter-

state streams. Basically, these argu-

ments rest on two propositions: (1) that

federal common law governs rights in

interstate streams, and rejects the

common law doctrine of riparian rights;

and (2) that under this federal common

law, as applied in New Jerse’ v. New York,

Supra, the rights of Pennsylv aia in the

Delaware River have been adjudicated, thus,

under the principle of parens patriae,

barring recovery by these Pennsylvania

plaintiffs.

These defenses are each unsound,

and have been summarily disposed of in

several prior decisions in this case, but

since the City has briefed them extensive-

ly, I will again address them.

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District Court Opinion

The federal common law doctrine of

equitable apportionment was developed

by the Supreme Court in answer to the

problems raised by conflicting claims of

states as sovereigns, to the waters of

interstate rivers. These conflicts have

frequently arisen, often between states

with opposed notions of water law. In

Kansas v. Colorado, 206 U.S. 46 (1907),

for example, Kansas had adopted the

common law of riparian rights and accord-

ingly demanded that the Arkansas River

flow down to it from Colorado without

diminution. Colorado had adopted the

Western, or dry-state doctrine of prior

appropriation or apportionment.

In these interstate conflicts, the

Supreme Court has held that the appor-

tionment of waters, as between the

sovereign states, presents a federal

7la

Se wae S oo tenaaanaal

District Court Opinion

question to be resolved according to

federal common law, and has resolved

such cases by developing and applying the

doctrine of equitable apportionment.

Under this doctrine, neither claimant

state's law governs, and the waters are

apportioned equitably according to a

variety of factors. See, Illinois v.

City of Milwaukee, 406 U.S. 91, 105

(1972); Nebraska v. Wyoming, 325 U.S. 589

(1945); Hinderlider v. La Plata & Cherry

Creek Ditch Co., 304 U.S. 92 (1938);

Wyoming v. Colorado, 286 U.S. 494 (1932)

and 259 U.S. 419 (1922); Connecticut v.

Massachusetts, 282 U.S. 660, 670 (1931);

Kansas v. Colorado, supra.

In New Jersey v. New York, 347 U.S.

995 (1954) and 283 U.S. 336 (1931), the

Supreme Court applied this doctrine to

the apportionment of the waters of the

Delaware River. New Jersey in both cases

72a

District Court Opinion

urged, unsuccessfully, application of the

strict rule of the common law under which

the River would "come down to it un-

diminished." 283 U.S. at 342.

Pennsylvania intervened in the

cases to protect its own sovereign in-

terests, but the motion of the City of

Philadelphia to intervene was denied by

the Supreme Court cn the principle that

"the state, when a party to a suit in-

volving a matter of sovereign interest,

‘must be deemed to represent all its citi-

zens'." New Jersey v. New York, 345 U.S.

369, 372 (1953), quoting Kentucky v.

Indiana, 281 U.S. 163, 173-74 (1930).

In neither Delaware River case,

however, did the Supreme Court directly

rule on the effect of its Decrees on indi-

vidual riparian owners. To the extent the

subject was considered at all, the Court's

73a

District Court Opinion District Court Opinion

holding is favorable to these plaintiffs: v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976).

"No diversion herein allowed shall

constitute a prior appropriation

of the waters of the Delaware

River or confer any superiority of

right upon any party hereto in

respect of the use of the waters.”

spe New York, 347 U.S. has specifically excluded such interests

from consideration. See, e.g., Kansas v.

In equitable apportionment cases in which

the plaintiff state has pleaded its own

private interest as a riparian, the Court

Furthermore, under the Eleventh

Colorado, 206 U.S. 46, 98 (1907) ("We

Amendment and the principles governing

parens patriae suits between states, the need not stop to consider what rights such

rights of these individual plaintiffs private ownership of property might

give."). In addition, any parens patriae

could not have been advanced by Pennsyl-

vania in the Delaware River cases against suit brought against another state to re-

New York cover for injury to the property rights of

Parens patriae suits must involve individual citizens would be barred by the

Eleventh Amendment. See, New Hampshire v.

a sovereign or quasi-sovereign interest

of the states, rather than a "mere col- Louisiana, 108 U.S. 76 (1883).

baer mh.

lectivity" of the private interests of It is well settled that the ind

their individual citizens. Pennsylvania vidual states may, by legislation or judi-

v. New Jersey, 426 U.S. 660, 665 (1976). cial decision, establish or adopt rules of

See also, Hawaii v. Standard Oil, 405 U.S. property law which create or enforce ripar-

251 (1972); Commonwealth of Pennsylvania ian rights, and rights in water generally.

75a

74a

District Court Opinion

"[If the States] choose to resign to the

riparian proprietor rights which properly

belong to them in their sovereign capacity,

it is not for others to raise objections."

Shively v. Bowlby, 152 U.S. 1, (1894).

See also, Bonelli Cattle Co. v. Arizona,

414 U.S. 313, 320 (1973); Fox River Paper

Co. v. Railroad Comm'n., 274 U.S. 651,

655 (1926); Port of Seattle v. Oregon &

Washington R. R., 255 U.S. 56 (1920);

Scott v. Lattig, 227 U.S. 229, 242 (1913);

Kansas v. Colorado, 206 U.S. 46, 93-94

(1907); Hardin v. Jordan, 140 U.S. 371,

380 (1891); Hoboken v. Pennsylvania R. R.,

124 U.S. 656 (1887); Barney v. Keokuk, 94

U.S. 324 (1876). Most of the original

states adopted the common law of England

as received and applied in their juris-

diction under colonial rule. See, e.g.,

Art. 1 § 14 of the New York Constitution

of 1938, originally found in Art. 35 of

76a

District Court Opinion

Schedule No. l,

the Constitution of 1777 and/ § 2 of the

Pennsylvania Constitution of 1874.

It is equally clear, however, that

insofar as actual diversions of water are

concerned, no individual state can bestow

on its citizens by its local property law,

a right greater than that to which the

state itself is equitably entitled.

"It may be assumed that the right

adjudicated by the [Colorado]

decree of January 12, 1898 to the

Ditch Company is a property right

indefeasible so far as concerns

the State of Colorado, its citi-

zens, and any other person claim-

ing water rights there. But the

Colorado decree could not confer

on the Ditch Company rights in

excess of Colorado's share of the

stream; and its share was only an

equitable portion thereof."

Hinderlider v. La Plata & Cherry

Creek Ditch Co., 304 U.S. 92, 102

(1938).

See also, Wyoming v. Colorado, 286 U.S.

494, 508 (1932); and United States v.

Nevada, 412 U.S. 534, 539 (1973).

Relying on these cases, the City

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District Court Opinion

argues that the common law doctrine of

riparian rights is abrogated in streams

the waters of vhich have been apportioned

by Supreme Court Decree or Interstate

Compact, and that, in this instance, the

rights of these plaintiffs have been ad-

judicated with those of Pennsylvania and

are thus barred.

As to the first point, it is clear

from the cases cited above that riparian

rights within a state are purely a

matter of that state's concern, generally

regulated by local property law, and are

not, by that fact alone, destroyed or

altered when the Supreme Court applies

federal common law to conflicts between

the states and apportions the total waters

of the stream among the various competing

interests. It should be noted that feder-

al common law itself is not synonomous

78a

District Court Opinion

with the abrogation of riparian rights:

"(T]he quality of being riparian, especi-

ally to navigable water, may be the land's

‘most valuable feature’ and is part and

parcel of the ownership of the land it-

self." Bonelli Cattle Co. v. Arizona,

414 U.S. 313, 326 (1973); Hughes v.

Washington, 389 1.S. 290, 293 (1967).

To adopt a contrary position would

lead to the anomalous result that Pennsyl-

vania landowners on the Delaware have

been deprived of their rights, even as

against each other. The City's second

argument seeks to blunt what could other-

wise be seen as a certain inequality, the

fact that the City has compensated owners

of New York riparian property for the

loss of their property rights, and has

failed to compensate Pennsylvania ripar-

ians for the same loss. The City contends

that, by the Court's Decree, New York

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District Court Opinion

State's present total share of the waters

of the Delaware is 800 m.g.d., and that

the City, in appropriating all of that

share for its own uses, is thus bound to

compensate New York riparians for their

loss of participation in New York's share,

but is not bound to compensate Pennsyl-

vania residents, since they continue to

enjoy all that they were ever entitled

to enjoy -- i.e., Pennsylvania's share.

With this argument the City has

proved both too much and too little. Too

much, because this position cuts against

the City's first argument concerning the

applicability of federal common law: if

the Supreme Court's Decrees abrogate the

common law doctrine of riparian rights,

New York riparians, as well as those in

Pennsylvania, have no rights for the tak-

ing of which compensation must be made.

80a

District Court Opinion

At the same time, the City's

argument falls short of meeting the

present situation. Even if we accept

for the sake of argument the contention

that Pennsylvania riparians on the Dela-

ware are presently enjoying the full

volume of water to which they were ever

entitled, the fact remains that the City

by its dams has materially altered and

worsened the remaining waters of the

Delaware, that is, has worsened the

portions alloted, under ‘he City's argu-

ments, to Pennsylvania, New Jersey and

Delaware. As the common law maxim runs:

sic utere tuo ut alienum non laedas

(property must be used in such a way as

not to injury the property of others).

As we shall discuss below, the City's

works have adversely affected the tem-

perature, flow, stage and quality of the

8la

District Court Opinion

River. The Supreme Court's Decrees were

certainly not intended as licenses for

the City to commit such injuries without

liability.

Moreover, even that portion of the

City's argument relating to the quantity

of water must be rejected because the

City's diversion of "its" 800 m.g.d. ad-

versely affects the guality of the water

allotted to the other states bordering on

the Delaware. A diminished volume of

water flows in the old bed of the River

and the River is at times and in parts

turned into a swamp. The City undoubted-

ly has the right to take its share of the

Delaware, but must exercise its right in

such a way that the rights of others are

not abridged, or alternatively, must com-

pensate for the loss or damage.

It is noteworthy that by the City's

own argument, the City has avoided paying

82a

District Cour: Opinion

owners of New York property for the full

loss of their riparian rights, since some

water continues to flow in front of their

land. In effect, the City has taken and

paid compensation for only part of the

value of the riparian rights of New York

property owners, and has at the same time

trespassed upon the rights of Pennsyl-

vania riparians and refused to pay them

anything for their identical loss.

Finally, there is no merit to the

City's remaining defenses based on feder-

al ‘isin? iinet of the Delaware. The

Supreme Court's retention of jurisdiction

in New Jersey v. New York does not de-

prive this Court of jurisdiction, since

jurisdiction was explicitly retained only

over the parties to that case, to enable

them to seek a modification of the Court's

Decree. 347 U.S. at 1005.

83a

District Court Opinion

Nor does the Delaware River Basin

Compact deprive plaintiffs of their |

rights. Section 14.19 of that Compact

expressly provides:

"Nothing contained in this com-

pact shall be construed as affect-

ing or intending to affect or in

any way to interfere with the law

of the respective signatory par-

ties relating to riparian rights."

Injury to Riparian Property on the

Delaware

The courts have been called on re-

peatedly to adjudicate the question of the

effect of the City's dams and diversions

on the Delaware and its tributaries, and

on New York property fronting on the River.

In each such case, counsel for the City

has argued that the effects of diversion

were minimal, or even that they were be-

neficial. In each case the courts have

found against the City on the question,

and the City should be barred from re-

84a

District Court Opinion

litigating the issue here. Consequently,

although plaintiffs' evidence at trial

independently proved that the City's

actions were detrimental to the tempera-

ture, stage, flow and quality of the

River and to adjacent property, as I so

find, this Court will not here repeat at

length what has been done exhaustively

elsewhere.

The Report of the Special Master

appointed by the Supreme Court in 1930

summarizes the voluminous evidence pre-

sented to the Master on the effects of

the City's proposed diversion of 600

m.g.d. The Master found that "[t]he

effect of the New York diversion on the

recreational uses of the river will be

to cause somewhat more than slight damage,

particularly as affecting the reputation

of the river as a place of recreational

85a

District Court Opinion

resort." Id., Finding of Fact No. 37,

at 205. The Master accordingly recom-

mended that the City's diversions be

limited to 440 m.g.d.

The Supreme Court specifically

approved the Master's findings and re-

stricted the City's diversions to 440

m.g.d.:

"The Master finds that the taking

of 600 million gallons daily from

the tributaries will not mater-

ially affect the River or its

sanitary condition, or as a source

of municipal water supply, or for

industrial uses, or for agricul-

ture, or for the fisheries of shad.

The effect upon the use for re-

creation and upon its reputation

in that regard will be somewhat

more serious, as will be the ef-

fect of increased salinity of the

River upon the oyster fisheries.

The total is found to be greater

than New Jersey ought to bear, but

the damage can be removed by re-

ducing the draft of New York to

440 million gallons daily ...."

283 U.S. at 345.

The Special Master appointed by

the Court in 1954 refrained from making

86a

x Seta

District Court Opinion

findings of fact, and merely recommended

that the City's allotment be increased

to its present 800 m.g.d. The Master

noted, however, that "Pennsylvania, New

Jersey and Delaware, while not showing

any present damage, have adduced exten-

sive proofs to the effect that the New

York plan will cause them substantial

damage in the future and strongly urge

that they be given protection against that

possibility if the New York plan be now

authorized." Report of the Special

Master at 107 (filed May 27, 1954).

In addition to these findings made

by Special Masters appointed by the

Supreme Court, Commissioners appointed by

the New York Supreme Court pursuant to

Title K of the Administrative Code of the

City of New York have also considered and

made findings on the condition of the Dela-

87a

District Court Opinion

ware River from Hancock to Skinners Falls,

New York, that is, on the condition of the

River as it flows in front of the proper-

ty of all of these plaintiffs here, ex-

cept that of Van Loan/Elwood. In each

case, the City argued that its regulation

of the flow of the River was beneficial,

or only minimally harmful, and in each

case different boards of Commissioners

have found de novo that the City's diver-

sions had adversely and permanently af-

fected the River. Each of these deter-

minations in turn has been confirmed by

a Justice of the New York Supreme Court

and by the Appellate Division. See, e.g.,

In re Maguire (Wingert), unpublished

opinion of Conway, J., dated October 16,

1973, aff'd., 48 App.Div.2d 958 (3d Dept.),

motion for leave to appeal denied, 37

N.Y.2d 712 (1975); In re Maguire

88a

District Court Opinion

(McBride), unpublished opinion of Conway,

J., dated April 16, 1971, aff'd., 38 App.

Div.2d 777 (3d Dept. 1972).

The issue in those cases is pre-

cisely the issue here. In In re Maguire

(Wingert), for example, the Court stated:

"There was considerable testimony

in this case as to the damage to

such recreational activities as

fishing and swimming in the river

as the result of diversion of

the Delaware by New York City. In

Matter of Ford (City of New York),

18 A.D.2d 855, 236 ; Y.S.2d 591

ete ® go

593, also involving diversion of

the Delaware by New York City, this

court found that it was ‘abundant-

ly clear that a very large part

of the value before the taking was

in fact attributable to the re-

creational facilities afforded by

the river and subsequently in

large part destroyed' by the di-

version of the waters. The ex-

pert testimony in these cases ...

as to what the value of the pro-

perties would have been was proper-

ly received and considered by the

commissioners as an aid to their

determination of the loss to re-

spondents, including that occasion-

ed by the damage to the river as a

recreational area.

89a

District Court Opinion

We find that the awards in all

these cases rested upon sufficient

evidence in the record ...." 48

App.Div.2d at 959,

The City objects to the application

of collateral estoppel here because it

claims that the issues involved in the

Title K proceedings and in these cases are

different, and that the standard of proof

applicable in Title K proceedings is dif-

ferent from the standard before this Court.

Both these contentions must be rejected.

The issue here, harm caused to the

Delaware River by the City's actions in

impounding and diverting water, is precise-

ly the issue involved in the Title K pro-

ceedings, and decision on that question was

essential to the determinations in each of

those proceedings.

Secondly, under Title K the court-

appointed Commissioners are a quasi-

90a

District Court Opinion

judicial tribunal, whose powers include the

right to issue subpoenas, administer oaths,

take testimony, and make findings of fact.

Since 1964, the scope of the Appellate

Division's power to review the findings of

these Commissioners has included the power

a One ee ee aD ee ee ae eS

to “re-evaluate the record and make its own |

findings" in order to modify or reject an

award if necessary to conform it to the

evidence presented. In re Ford (Siska),

22 N.Y.2d 834, 837 (1968). See also, In

re Ford, 35 App.Div.2d 43, 46 (3d Dept.

1970). This power to review the findings

of the Commissioners effectively disposes

of the City's main objection to the appli-

cation of the principle of collateral

estoppel in this case.

The City has had more than a fair

opportunity to litigate the question of

damage to the Delaware River and should

9la

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District Court Opinion

not be allowed to re-litigate it here,

Mutuality of estoppel is no longer a pre-

requisite for the application of collater-

al estoppel. See, Shore v. Parklane

Hosiery Co., Inc., 565 F.2d 815 (2d Cir.

1977); Zdanok v. Glidden Co., 327 F.2d

944 (2d Cir.), cert. denied 377 U.S. 934

(1964). The Shore case, supra, applied a

federal rule of estoppel by judgment in

a case arising under the federal securi-

ties laws. We regard the matter as pro-

cedural, not substantive, and therefore

not limited by Erie principles. In any

event, New York seems no longer to require

mutuality. See, Schwartz v. Public Admin-

istrator, 24 N.Y.2d 65 (1969).

In addition to these judicial

findings, the New York Legislature has

also made its own findings in connection

with enactment of Chapter 888 of the Laws

of 1976. The New York Legislature found

92a

District Court Opinion

that reservoir releases "have damaged the

recreational uses, such as trout fishing

and canoeing" below the City's dams. N.Y.

Environmental Conservation Law § 15-0801.

While these findings are not conclusive

upon this Court, and may be rebutted by

contrary evidence, they are entitled to

some weight. See, e.g., Chastleton Corp.

v. Sinclair, 264 U.S. 543, 547 (1924).

In this case, these legislative

findings have not been controverted. In-

deed, these findings have been established

independently by the evidence introduced

at trial by the plaintiffs and their ex-

pert witnesses.

Defendant's Ex. i iieeweaded at

the trial, graphically indicates the scope

of the City's manipulation of the natural

flow of the Delaware. It shows that ina

typical year, 1971, for example, the City

93a

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District Court Opinion

diverted for its own uses and stored some

28% (200 billion gallons) of the flow and

manipulated by its releases and spills a

further 18.6% (150 billion gallons) as

measured at Callicoon, New York. The

amount annually diverted by the City is

approximately 88% of the full amount

allowed by the Supreme Court's Decree.

The River Master's Annual Reports

show the details of this manipulation. In

1969 for example, the City released only

the minimum conservation releases for 14

consecutive days in June, and then in July

released approximately a billion gallons a

day for 11 consecutive days. From the end

of July until mid-August, only conserva-

tion releases were made. At the end of

August, there again followed another ex-

tended period of releases averaging one

billion gallons per day. This same general

94a

District Court Opinion

pattern has been followed in succeeding

years.

On the trial of this action, the

City introduced the testimony of Mr.

Stanton, an engineer and acting director

of the City's Bureau of Claims, to show

that extreme low flows after the diversion

were, on a monthly average, considerably

higher than prediversion low flows. I

find this to be true, but such evidence

does not rebut or negate the effect of

the plaintiffs' evidence of enormous

fluctuations on a daily basis.

Mr. Paul E. Blomquist, an expert

called by the City, testified as follows

on the fluctuation in flow as it affected

one of the properties in this case, that

of Van Loan/Elwood:

A. "With regard to Van Loan, which

is on the West Branch of the

Delaware River, subject princi-

pally to the larger releases

95a

District Court Opinion

when they are necessary,

from Cannonsville Reservoir,

there would be a pronounced

increase in the flow past that

property under conditions of

high release in the summer

months ....

Mr. Blomquist, if you will

pardon an interruption, you

said ‘an increased flow.' In-

creased from what?

Above what would have passed

by absent the reservoir. As

a matter of fact, substantial-

ly increased flows because of

the operating policy of the

City of New York at this time.

Now, during the years when the

run-off is high and the reser-

voir is being recharged, then

the river below the dam would

be getting less than the nor-

mal or the natural flow; and

as a consequence of that, there

would be less flow in the river

past Van Loan than there would

have been absent the reservoir.

Now, this is a condition which

is brought about by all of

this. In weather conditions,

with the dry weather, a

drought period, there are ex-

tended or high releases from

Cannonsville, which augment

the flow at Van Loan or at any

96a

District Court Opinion

point between Van Loan and the

dam; and then, when the flow at

Montague, where no releases

are necessary, then there is an

effect of withholding, a short

reduction of flow."

(Transcript, pp. 59-60.)

The plaintiffs’ proof at trial

showed the adverse effect these fluctua-

tions in volume, stage and flow had on

canoeing and other water recreations. One

witness testified that he had seen an

automobile driven across the Delaware

above the Canfield property during a per-

iod of low flow.

An obvious effect of these great

fluctuations in volume has been an enor-

mous range in summer water temperatures in

the River. In every body of deep, still

water, such as the Cannonsville and Pepac-

ton Reservoirs, thermal stratification

occurs, with the thermocline usually at

about 25 feet. Below that depth, in the

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District Court Opinion

hypolimnion, water temperatures average

40° F, Because both of these Reservoirs

release water into the River from spill-

ways in the bottom of the dams, water is

released in normal periods at about 40

degrees.

The effect of these cold releases

is more apparent, of course, the nearer

one approaches the source of the releases,

and so is most apparent at the Van Loan/

Elwood property which is approximately

five miles above the confluence of the

East and West Branches. However, these

effects are still felt at the Canfield

property which is some 40 miles below

these dams.

A correlation of summer water tem-

peratures, as measured at Callicoon, New

York (situated between the Canfield and

Gregory properties) and water releases by

the City shows that when the releases were

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District Court Opinion

minimal, water temperatures closely ap-

proximated air temperatures and averaged

in the 70's Farenheit. When the City's

releases approached or exceeded one bil-

lion gallons a day, the water tempera-

ture dropped into the low 60's or upper

50's. These figures, derived from ex-

hibits prepared by the City, are con-

firmed by plaintiffs’ Ex. 24, an official

report prepared by the United States Geo-

logical Survey in 1964. The report is

properly admissible here under Rule 803(8),

F.R.Evid.

Each of the plaintiffs testifying

at the trial mentioned the immediate and

adverse effect such fluctuations in tem-

perature had on swimming, but the more

serious consequences were those affecting

fisheries in the Delaware.

Before the diversion of the head-

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District Court Opinion

waters of the Delaware, the River was con-

sidered a.warm-water stream, with summer

temperatures averaging in the 70's or low

80's. At that time, the major fishery

in the main body of the River was for

small mouth bass and walleyed pike, but

there was some fishing for trout near the

spring holes and hear [sic] the mouths of

tributaries.

Mr. Edward C. Raney, an icthyolo-

gist, testified for plaintiffs on the

deleterious effects of the City's diver-

sion of water from the Delaware. Briefly,

he testified, and I find, that the City's

dams act to prevent normal spring freshets

which formerly cleansed the River of slime

and algae and of accumulated rubble at

the mouths of tributaries. The conse-

quence of the general stagnation of the

River and the growth of slime along it has:

been a general increase in mosquitos and

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District Court Opinion

insects on riparian property. The conse-

quence of the formation of deltas at the

mouths of tributaries to the Delaware has

been a marked change in the normal habits

of fish in the River and their exclusion

in some degree from the tributaries.

Low winter flows in the River have

allowed ice to form to the bottom of the

stream in many places, destroying the

aquatic organisms on which fish feed.

The fluctuations in temperature

caused by the City's diversions have al-

most totally destroyed the warm-water

fisheries in the River. The optimum tem-

perature for warm-water fish is between

70° and 80° F. and, as mentioned above,

the City's releases have frequently acted

to reduce the summer water temperatures

for prolonged periods to the low 60's or

upper 50's. In addition, high releases

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District Court Opinion

of water during the spawning season have

driven bass from their nests and prevented

the propagation of young.

The same fluctuation in tempera-

ture and flow has in large measure blocked

efforts to turn the River into a cold-

water fishery for trout: low flows from

the City's dams allow the temperature of

the River to approach air temperature,

which, in the summer months, is usually in

the range from 70° to 80° F. Unless trout

can hide in a cold spring or inlet until

the next City release, they will be sub-

jected to trauma or death.

Mr. Raney's observation of fish-

ing on the Delaware were all made before

1965, but the conditions upon which he

based his opinions still exist and are

largely unchanged. In addition, his

opinions were borne out by those of Harry

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District Court Opinion

Darby and Harry Phillips, both active

anglers with more recent experience of

the River.

On the trial of this action,

plaintiffs sought to have admitted into

evidence a report, issued by the New York

State Department of Environmental Con-

servation, entitled "Proposed Alternative

Releases from New York City Reservoirs in

the Upper Delaware River Basin” (1974).

The factual material contained in the

report is clearly admissible, see Rule

803(8)(C), F.R.Evid., N.Y. Environ.

Conserv. Law § 3-0301, and Williamson v.

Union Oil Co. of California, 125 F.Supp.

570 (D. Colo. 1954). This report gener-

ally reinforces plaintiffs’ contentions

concerning the precarious position of

cold-water fisheries in the Delaware.

A more serious problem with the

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District Court Opinion

report, however, is one that has only

arisen since 1976 when the City began to

make increased daily releases under the

new Environmental Conservation Law. The

opinions contained in the report are to

the effect that increased flows would in

large measure serve to stabilize the trout

fisheries in the Delaware. While these

opinions as such may not be admissible,

this Court may take judicial notice of

the elementary laws of physics and draw

its own conclusions from them and from

evidence already properly admitted.

Accordingly, I find that even if the new

statutory minimum flow were to be main-

tained by the City (a condition which

will be no means necessarily occur), it

would not be sufficient to repair the

damage done to the River by the City's

diversions, even as concerns the trout

104a

District Court Opinion

fisheries: spring freshets would still be

lacking in the River, deltas would still

form at the mouths of tributaries, block-

ing trout seeking refuge in the cooler

waters, and the massive fluctuations in

temperature, flow and velocity, produced

by the City's meeting the Montague formula

would still occur,

The plaintiffs have not only

proved that the River has been harmed, and

with it their properties, but they have

also established that the harm is permanent,

in the sense that it is likely to continue

while the City's dams and reservoirs en-

dure. As discussed above, the new regula-

tions enacted under the Environmental Con-

servation Law in no way detract from this

conclusion.

The evidence introduced by the

City on the condition of the Delaware

105a

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District Court Opinion

River fisheries does not rebut the testi-

mony of plaintiffs and their witnesses.

One of the City's biologists only grudg-

ingly admitted that the City's diversions

and dams has caused any damage to the

fishing, a position that is scarcely ten-

able. A second expert, Mr. Grim, ad-

mitted that the River had been adversely

affected, but differed with plaintiffs

only on the question of degree.

Necessary and Proper Parties

The City has argued that this

action must be dismissed since certain

parties, notably the Commonwealth of

Pennsylvania and the State of New York,

are absent and are necessary to the reso-

lution of the controversy. This argument

is without merit. See, Brooks v. United

States, 119 F.2d 636, 643 (9th Cir. 1941).

This Court is neither apportioning the

106a

District Court Opinion

waters of the Delaware nor questioning the

validity of prior apportionments. All

that is in issue here is a trespass to a

private property right protected both by

the property law of New York and Pennsyl-

vania, as well as the Fourteenth Amend-

ment. And the sole trespasser is the City

of New York.

The City has also argued that the

Lake and Van Loan/Elwood claims must be

dismissed because those plaintiffs had

sold their properties long before filing

a Notice of Claim, and consequently had

been out of possession at all times during

which an actionable trespass occurred.

Generally, in Pennsylvania and

New York, for a plaintiff to recover

damages for trespass to property, he must

have possession of the land, or the right

to immediate possession of it, at the time

of the injury. Nevertheless, the right

107a

District Court Opinion

to recover damages for a trespass or a

taking is a personal one, assignable or

retainable by a vendor. See, e.g., in

re Appointing Viewers to Assess Damages,

409 Pa. 290, 186 A.2d 20 (1962); McFadden

v. Johnson, 72 Pa. 335 (1872). And this

is so whether the cause of action has al-

ready accrued when assigned, or is yet to

arise. In the analogous situation where

a grantor reserves, in a deed, damages

with respect to the existing and future

condemnation of land, the Pennsylvania

courts have upheld the grantor's rights.

See, €.g., Chapleski v. Commonwealth of

Pennsylvania, Dept. of Highways, 5 Pa.

Commonwealth 482, 291 A.2d 360 (1972).

Both New York and Pennsylvania

favor free alienability of interests in

land. Having accepted a deed with such

rights reserved and excluded, subsequent

108a

District Court Opinion

transferees of the damaged parcels would

be hard put to make any claim against the

City, and accordingly there is no way in

which the City would be likely to pay

twice. If the City's arguments with re-

spect to lack of standing were to be ac-

cepted here, no one would be able to sue

to recover for a clearly proved trespass:

these plaintiffs would be barred because

they are out of possession, while the ven-

dees in possession would be barred by the

exclusions and reservations in their deeds.

I find and conclude that both these

plaintiffs reserved in their deeds of con-

veyance all rights against the City of New

York and are entitled to bring their

actions on the theory that they are suing

to enforce retained rights, or alterna-

tively, on the theory that acceptance of

the respective contracts of sale and deeds

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District Court Opinion

constituted an equitable assignment by the

vendees to these plaintiffs of their

possessory right of action.

Finally, George Elwood, as Admin-

istrator d.b.n., c.t.a., is the proper

party to bring this action for the bene-

fit of the Van Loan Estate. His powers as

Administrator included the power to sell

the property. This he did, expressly re-

taining in the deed "rights acquired and

to be acquired" against the City.

Mr. Elwood's account to the Orphan's

Court of Wayne County, Pennsylvania, set

forth in detail his activities in pursuing

the rights of the Estate against the City

of New York, and the account was approved

by the President Judge of that Court on

September 11, 1967.

Essentially, Mr. Elwood'’s actions

in this litigation are authorized as a

necessary adjunct of his testamentary

110a

District Court Opinion

power to sell the real property of the

Estate on reasonable terms, and to retain

and enforce rights already accrued or to

arise in favor of the decedent's ownership,

against the City.

Damages

On the trial of this action both

parties presented evidence on the value

of plaintiffs' properties and also pre-

sented appraisals made by their respective

experts. In addition, on June 27, 1975, in

the company of counsel, I made a personal

inspection of all of the damaged proper-

ties and several other properties used as

comparables in the appraisals.

In Elwood v. City of New York, an

unpublished opinion dated March 27, 1973,

Judge Pierce of this Court held with re-

gard to one of the plaintiffs here that the

"initial period of the claim would be

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District Court Opinion

limited ... to encompass trespass only

up to 90 days before the notice of claim

was filed." Id. at 4. This is the

proper standard to be used in computing

damages in all these cases. See also,

Hackensack Water Co. v. Village of Nyack,

289 F.Supp. 671 (S.D.N.Y. 1968).

The City argues from this ruling

that four of the five plaintiffs here are

barred from recovery because in each of

their cases the date of the sworn apprai-

sal submitted was more than 90 days before

the filing of a Notice of Claim with the

City. All these appraisals were made by

Mr. Rodman Fellows, who uniformly used

October 20, 1971 as the date for appraisal.

Mr. Fellows' appraisals were properly

admitted and form the basis for his direct

testimony on the value of the plaintiffs’

properties given at trial. Moreover, to

1l2a

District Court Opinion

the extent plaintiffs' appraisals are

credible for the period they claim to re-

flect, they are, in the light of the

generally upward trend in real estate

prices proved on the trial, a minimum

estimate of damages, valid for later

periods for which damages are properly

recoverable. Accordingly, this date

variance is not a basis for dismissal.

Damages will be determined by the Court

based on the entire record, and as of

the date ninety days prior to filing a

Notice of Claim, hereinafter the "damage

date." Plaintiffs have proved a continu-

ing and permanent trespass by the City

with respect to their riparian rights. In

a continuing trespass, "each new day

establishes the cause anew." Bloss v.

Village of Canastota, 35 Misc.2d 829, 831,

232 N.Y.S.2d 166, 168 (Sup. Ct. Mad. Co.

ll3a

NATURE WEIN iS TNE IEA TASTE BT ere Cre

District Court Opinion

1962). See, Gregory v. City of New York,

346 F.Supp. 140, 144 (S.D.N.Y. 1972).

Consequently, these plaintiffs, as

we held in Gregory, cannot be barred for-

ever by the "late" filing of their Notices

of Claim; nor are they prevented by the

date of filing of their Notices of Claim,

from presenting estimates of value valid

for any date within the period extending

from 90 days prior to filing their Notices

to the time of trial. We answer now, in

the negative, the question posed in

Gregory, supra, at 145:

"If, as appears likely, lump-sum

damages are assessed to cover the

diversion from inception ow

erpetuity, or near perpetuity

rid ses A the future life of the

dams, will such damages be lessen-

ed materially because the first

five or six years of such perman-

nent diversions are excluded?"

Plaintiffs’ motions to strike the

appraisals of Mr. Walter Donnaruma, on the

114a

District Court Opinion

ground that they lack detailed adjustments

for time and location, are denied. The

appraisals are admissible within the phil-

osophy of Rule 401, F.R.Evid., regarded as

declaratory of existing law in this Court.

In any event, adequate notice and oppor-

tunity to demand such adjustments prior to

trial existed, and were not availed of.

There is another difficulty with

the Donnaruma appraisals which goes only

to their weight and significance. They

are based on the clearly false premise

that no adverse consequences whatsoever

were caused to riparian property on the

Delaware by the construction and operation

of the Cannonsville and Pepacton Reser-

voirs. Consistent with that view, all of

Mr. Donnaruma's comparable "before"

values comprised riparian properties on

the Delaware, which themselves had been

ll5a

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District Court Opinion

affected by th’ City's diversion. This

approach was rejected in In re Maguire

(Wingert), 48 App.Div.2d 958 (3d Dept.

1975), in which the City relied on similar

appraisals by Mr. Donnaruma, and it is re-

jected here.

The proper method of appraisal and

the manner in which damages must be com-

puted is based on the difference between

the market value of the damaged parcel,

as subjected to the permanent trespass

on the damage date, and the market value

of the parcel as it would have been on

that date, but for the trespass.

As stated in In re Maguire

(Wingert), supra, at 958-59:

"The primary contention of appel-

lants is that respondents" expert,

in all the cases excepting

Phillips', by basing his estima-

tion of damages on the value that

the subject properties would have

had but for the loss of riparian

rights, rather than upon the actual

ll6a

District Court Opinion

decrease in value, submitted proof

which was speculative and inade-

quate. The permissibility of in-

troducing expert testimony with

respect to both the present value

of the premises with the water

diverted and also as to what the

present value would be had there

been no diversion was upheld by

this court in Gallagher v.

Kingston Water Co. (35 App Div

82, aff'd 164 NY 602). .... 'The

expert *** necessarily has to con-

sider both benefits and injuries

and balance the account--which is

the very thing the jury have to do.

The majority of the court thought

it better that all the conditions

affecting values be shown, and

thereupon the court or jury should

determine. In the case before us

there are no benefits to be con-

sidered; it is a simple question

of value, with or without the

water *** Experts know better than

the non-expert' (Gallagher v.

Kingston Water Co., supra. pp 85,

86). We find no case modifying

the basic holding in Gallagher

and the reasoning therein is appli-

cable to the instant situation.

The takings herein have not brought

benefits to respondents’ proper-

ties and we are presented with a

simple question of value upon which

expert testimony would be most use-

ful. There was considerable testi-

mony in this case as to the damage

to such recreational activities as

117a

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District Court Opinion

fishing and swimming in the river

as the result of diversion of the

Delaware by New York City. In

Matter of Ford (City of New York)

(18 AD2d 855, 856), also involving

diversion of the Delaware by New

York City, this court found that

it was ‘abundantly clear that a

very large part of the value be-

fore the taking was in fact attri-

butable to the recreational facili-

ties afforded by the river and sub-

sequently in large part destroyed'

by the diversion of the waters.

The expert testimony in these cases

(excepting Phillips') as to what

the value of the properties would

have been was properly received and

considered by the commissioners as

an aid to their determination of

the loss to respondents, including

that occasioned by the damage to

the river as a recreational area.

We find that the awards in all of

these cases rested upon sufficient

evidence in the record and fell

within the range of expert testi-

mony with regard to damages and

values."

Cf., Rider v. York Haven Water Co., 251

Pa. 18 (1915); Miller v. Windsor Water Co.,

148 Pa. 429 (1892).

Mr. Fellows' appraisals follow this

approach and include very detailed adjust-

ments made for time of sale and size of

118a

District Court Opinion

parcel. None of the comparable sales is

remote in time from the valuation date.

Each of Mr. Fellows’ "before" sales was a

sale of recreational land fronting on

water not affected by the diversion of

the Delaware; his "after" sales were sales

of Delaware River properties, most notably

the 1966 sale of the Van Loan property on

the West Branch.

The City has moved after trial to

strike plaintiffs’ appraisals on the

ground that Mr. Fellows relied on plain-

tiffs' Ex. 25 in making them. This motion

is denied. Exhibit 25 was properly ad-

mitted on the trial for its factual con-

tent, which would have been properly re-

lied on by Mr. Fellows in making his

appraisals. There is no evidence that

Mr. Fellows actually relied on opinions

in Ex. 25 in preparing his reports. To

119a

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District Court Opinion

the extent that his appraisals do reflect

the opinions expressed in that report,

they are, in the light of subsequent events,

favorable to the City. Reliance on the

opinions of others is not uncommon on the

part of an expert witness, and is now ex-

pressly authorized by Rule 703, F.R.Evid.

Defendant's remaining objections

to the Fellows’ appraisals are equally

without merit. It is of no significance

that Fellows chose to call the date chosen

for evaluation the "date of condemnation."

The reality sought to be expressed, not

the expression chosen, is the essential

factor here, and Mr. Fellows, as dis-

cussed above, used the correct formula

in estimating damages.

Finally, Mr. Fellows’ concession

that the prices of all these parcels had

been rising at about 5% per year since the

early 1970's is not inconsistent with his

120a

District Court Opinion

assertion that damage has occurred. Both

parties agree, and this Court finds, that

the highest and best use of these proper-

ties is for recreation. Damages are to be

based on the highest and best use of the

property before the trespass. See, Snyder

v. Pennsylvania, 412 Pa. 15, 192 A.2d 650

(1963).

Van Loan/Elwood. Mr. Fellows esti-

mated the “before" or hypothetical value

of the Van Loan/Elwood property absent the

trespass as of October 20, 1971, at

$160,500.00, and its value "after", that

is, as it stood on October 20, Bvt, at

$22,000.00. The difference between these

amounts is his expert opinion concerning

damages.

The Delaware River Valley is acces-

Sible and is near large population centers.

The beauty of the climate and the outstand-

l2la

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a PII, OIL GOEL, EINE III. OBIE

District Court Opinion

ing attractiveness for recreational pur-

poses of the Delaware River Valley ri-

parian properties cannot be denied.

As noted, the Court inspected this

and the properties discussed below. The

Van Loan/Elwood property consists of ap-

proximately 123.5 acres of land with 2,720

feet of River frontage. Ball's Creek

flows through the property towards the

River, and part of the property faces Pine

Island in the River, premises owned by

others. The channel between the Van Loan/

Elwood property and Pine Island is not

the main flow of the River. Within the

tract, but excluded from the ownership, is

the small rural cemetery belonging to the

now defunct community of Ball's Eddy, and

an adjacent structure not owned by Van

Loan/Elwood. See map included in Fellows’

Appraisal.

122a

District Court Opinion

The Court accepts for purposes of

the damage formula, the value of $22,000.

00 after damages, computed as of October

20, 1971, and adjusts that figure, for

time, by adding 5.8%. The proper date for

valuation of this parcel is January 25,

1973. The upward trend of acreage prices

in the Delaware Valley and on comparable

unregulated streams for recreational land

has increased at about 5% per year.

The Court regards Mr. Fellows'

appraised "before" market value of

$160,500.00 as somewhat excessive. Com-

parable sales Nos. 4 and 5 in the Van Loan/

Elwood appraisal are of very slight use-

fulness, because the Van Loan/Elwood parcel

must be regarded as an acreage situation

of which the highest and best use contem-

plates subdivision, and a discount for size.

The difficulty with the analysis of the

123a

District Court Opinion

other comparables is that they each in-

clude substantial adjustments for "en-

hancement" due to perceived differences

in topography and utility. Some of these

points of enhancement lie to an extent in

the eye of the beholder, and cannot be

substantiated by market data. Placing

reasonable limitations on such largely

subjective enhancements, the comparable

acreage sales would appear to indicate a

market value adjusted for time, of about

$800.00 per acre for the Van Loan/Elwood

acreage. This is consistent with reality,

as confirmed by my inspection of the pre-

mises, and I find that as of January 25,

1973, the Van Loan/Elwood property would

have had a value without the existence of

the continuing trespass as follows:

124a

District Court Opinion

BULAGIAGS «6s onde nnwneesenenced 4,477.00

Building site (see p. 28 of

Fellows’ appraisal)....... 2,116.00

Acreage (121.6) cscccccceces 974,290.00

: z Total $106,273.00

Less "After" Value 23,276.00

TOTAL DAMAGES $ 82,997.00

Plaintiff George Elwood, as Ad-

ministrator, etc., shall recover $82,997.00,

together with pre-judgment interest from

January 25, 1973 to the date of the judg-

ment, and his costs to be taxed, including

the additional allowances for expenses and

disbursements authorized by § K51-44.0 of

the Administrative Code of the City of New

York.

As was observed by Judge Tenney

(supra, p. 13), the standard for fixing

damages for these plaintiffs is the same

as the measure of damages being employed

in proceedings by the City with respect to

Damage Parcels on the other [New York]

125a

District Court Opinion

side of the River, opposite plaintiffs'

properties. There, in proceedings under

Title K of the Administrative Code of the

City of New York, the City has condemned

the riparian rights to the extent infring-

ed upon by its dams. In reality, the pro-

ceedings here are, as Judge Tenney recog-

nized, tantamount to condemnation. Accord-

ingly the interest of justice in these

cases demands that these plaintiffs, al-

though proceeding technically on the

theory of a permanent and continuous tres-

pass or tort, should be treated as nearly

as possible in all respects equally with

persons similarly situated owning ripar-

ian land on the New York side of the River.

These latter persons receive interest on

their awards from the date of "taking,"

at the rate of 6% per annum, notwithstand-

ing the general limitation on interest

126a

District Court Opinion

imposed by the State of New York with re-

spect to claims against municipal corpora-

tions (3%) found in § 3-a of the New York

General Municipal Law. Pre-judgment inter-

est allowed under current economic condi-

tions at an annual rate of less than 63%

is a deprivation of property and an ob-

vious injustice. Accordingly, Elwood's

judgment, and the other judgments to be

entered herein will bear pre-judgment in-

terest at the rate of 6% per biti ime from

the damage date until paid. See generally,

Hartman v. City of New York, 29 Misc.2d

578 (Sup.Ct. Sullivan Co. 1961).

In this case and with respect to

the four other parcels, the Court will

stay enforcement of judgment pending

appellate finality, and pending also com-

pliance with § 394a-2.0 of the Administra-

tive Code of the City of New York. In

127a

District Court Opinion

addition, as a condition of payment, the

City may require from Elwood and the other

plaintiffs, releases or equivalent instru-

ments in proper form which may be recorded

in the land records of Wayne County, Penn-

sylvania so as to protect against any

future claims, and give notice in the

chain of title to persons hereafter acquir-

ing any interest in the property.

Badgley. The Badgley property

presents vivid evidence of the limitations

on recreational use of the River occurring

as a result of the damage described before.

Here we have a parcel primarily used for

recreation, having river frontage on the

Delaware River, on which the owners have

found it necessary to install a swimming

pool. In addition to the swimming pool,

this property, which consists of approxi-

mately two acres with 530 feet of River

128a

District Court Opinion

frontage, is improved with a large resi-

dence near the highway, also used as a re-

tail antique shop. The date for fixing

damages for the Badgley property is Febru-

ary 24, 1972. Since the Fellows’ apprai-

sal is computed as of October 20, 1971, an

upward adjustment for time amounting

to 1.7% increment is required.

The Court finds that the value

"after" the trespass is $42,500.00. The

analysis by Mr. Fellows of the "before"

value reached a total as of October, 1971

of $71,000.00. The comparable sales have

been analyzed in accordance with generally

accepted principles affecting the apprai-

sal of real property, but here again, as

in Van Loan/Elwood, there seems to be a

subjective element which may be regarded

as too optimistic. The Court, based on

all of the evidence in this case, and re-

lying also on its own inspection of the

129a

District Court Opinion

premises, believes that the value without

regard to the taking should be, and is,

fixed in the amount of $65,000.00. This

leads to a damage award in favor of Lillian

Badgley (now Dixon) of $22,500.00 with

pre-judgment interest from February 24, 1972

to the date of the judgment at the rate of

6% per annum, and costs and disbursements

to be taxed.

Lake. The Lake property consists

of approximately 15 acres with 600 feet of

River frontage, intersected by Spring Run

Creek on the northern section of the prop-

erty. The property also has a small piece

of frontage at its southerly inland corner

on Equinunk Creek. These creeks are trib-

utaries of the Delaware River. A build-

ing site improved by a residence occupies

approximately three acres of the land.

There is also an abandoned schoolhouse on

130a

District Court Opinion

the property, an abandoned church build-

ing used for storage, and several small

sheds. The damage date for the Lake

Parcel is February 23, 1972. Here again,

the appraisal is based on October 20,

1971, and an upward adjustment of 1.7%

appears appropriate.

The appraisal submitted by the

City as of February 22, 1972 is $23,500.00.

A consideration of the analysis by Mr.

Donnaruma of the Lake property, and the

Court's inspection thereof, indicates that

the valuation of $18,800.00 as of October

20, 1971 is unduly low for this parcel,

and the Court will adopt the "after"

figure of $23,500.00.

The value before is fixed at

$34,675.00, resulting in a damage award of

$11,175.00, together with interest at 6%

per annum from February 23, 1972, with

l3la

District Court Opinion

costs and disbursements to be taxed.

Gregory. Gregory's property con-

sists of 89 acres of land with 795 feet

of Delaware River frontage. There is a

residence separated from the River by a

town highway. That part of the premises

west of the town road has a commanding

view of the valley and fields which front

on the River.

Beginning in about 1964, Gregory

successfully sold Riverfront lots to

approximately ten purchasers. Most of

these lots are relatively small, and are

itemized and described in Mr. Fellows’

appraisal. The damage date for Gregory is

February 25, 1972. Again, an upward ad-

justment of 1.7% is necessary with respect

to the Fellows appraisal. The Court finds

that the property value after the damage

date is $68,000.00. There is little sub-

132a

District Court Opinion

stantial difference between the appraisers

on this point.

For his appraisal before the damage

date, Mr. Fellows valued 88 acres of re-

creational land at $900.00 per acre aver-

age price. This value is somewhat high,

because of the fact that some of the land

is rather remote from the River and separ-

ated by a town highway. It would seem that

the best of the Gregory Riverfront proper-

ty has already been sold off in small par-

cels. A value of $850.00 per acre as of

February 25, 1972 would seem more in keep-

ing with reality. This leads to the fol-

lowing revision of the "before" values as

set forth on p. 28 of Mr. Fellows’ apprai-

sal and adjusted for time by the Court:

133a

DIRE TEESE DIRE LS PR TL BAT ONT IE

District Court Opinion

88 Acres of recreation-

al land ib eee eed ede scawkaae 74,800.00

Building site and land

IMPEOCVEMENES cccvcscoevcccecs 4,095.00

Residence eoeeeeeeeeeee#eneeeeneeee 18,300.00

Barn eeeeoeeeeeeeneeneeeeeeneeeeee 1,000.00

Garage eoeeseeoeeeneeeeeeeeneneeeneeee 500.00

Total $ 98,695.00

Less "After" Value 68 ,000.00

TOTAL DAMAGES $30,695.00

The damage award for the Gregory

parcel is fixed at $30,695.00, together

with interest at 6% per annum from Febru-

ary 25, 1972, with costs and disbursements

to be taxed.

Canfield. The Canfield property is

probably the most valuable of the parcels

in this case. It consists of approximate-

ly 166 acres, having approximately 6,700

feet of frontage on a bend in the Delaware

134a

District Court Opinion

River on the Pennsylvania side between

Callicoon, New York and Skinner's Falls,

New York. There is a large island in the

middle of the River, not part of the sub-

ject property. As the most downstream

parcel, it enjoys a greater depth and flow

of water than those parcels further up-

stream. The downstream end of the proper-

ty is bounded by Schoolhouse Creek, a

tributary of the Delaware. Typography of

the land and configuration of the River at

Canfield's property combine to give this

parcel the greatest "river influence,"

i.e., ratio of frontage to subdividable

acreage, Of any of the parcels.

The open land was at the time of

trial being used by a tenant for agricul-

tural purposes, principally corn and some

vegetable gardening. There is an obsolete

barn which is not being used.

135a

District Court Opinion

With respect to this parcel, the

correct damage date is July 23, 1971. The

City appraiser, Mr. Walter Donnaruma

appraised the property at $160,000.00 on

July 20, 1971 without regard to any ripar-

ian damage, which he found to be minimal.

The best evidence of value before

damage in this case is found in Mr. Fel-

lows' appraisal. Mr. Fellows' figures for

this property are regarded as on the con-

servative side. He found an acreage value

of $900.00 per unit average, or a total

value before diversion of $149,400.00, and

an after value of approximately $300.00

per acre, giving rise to damages of

$99,600.00. The Court inspected this par-

cel also. The damages found by Fellows of

$99,600.00 are supported by credible testi-

mony. The Court believes that on this

parcel, Fellows is low, both as to his

136a

District Court Opinion

"before" value, and his value "after" the

damage, but that the total net damage found

is within the realm of reason, and indeed,

conservative. In any event, these figures

represent the opinion of a qualified and

credible expert, there is no credible

contrary evidence in the case, and the net

amount is borne out by the Court's inspec-

tion.

The damage award for the Canfield

property is fixed at $99,600.00, together

with interest at 6% per annum from July 23,

1971, with costs and disbursements to be

taxed.

Conclusion

The foregoing, together with the

conclusions of law expressed in all prior

decisions made in any of these consoli-

dated actions to the extent not inconsis-

tent herewith, taken together, constitute

137a

Sa as Si

oe Ae

Sats

SSSR

SOS EITS

can ae Soe

District Court Opinion

the Court's findings of fact and conclu-

sions of law, pursuant to Rule 52, F.R.Civ.

P.

The Court is filing five separate

judgments simultaneously herewith, each of

which is stayed as hereinbefore set forth.

Counsel for plaintiffs are directed to tax

their costs before the Clerk within thirty

(30) days, on not less than five (5) days

notice, or upon waiver of notice.

Dated: New York, New York

March 31, 1978

Charles L. Brieant

ae a ee

138a

District Court Opinion

FOOQTHOTES

In his decision, Judge McLean speci-

fically rejected the City's defense

that the Van Loan action was barred by

the Supreme Court's decision in New

Jersey v. New York, 347 U.S. 995 (1954),

discussed in the text, pp. 14-21:

"([T]hat action, it is true, in-

volved the right of New York to

divert waters of the Delaware River

by the construction of dams and

reservoirs, including the Cannon: -

ville Reservoir, but the action

did not involve the rights of indi-

vidual property owners, and the

Supreme Court's decree did not

touch that question or purport to

exclude it from consideration by

the District Court in a proper

case." Id. at 4.

Another case involving Pennsylvania

riparian land on the Delaware River

situated similarly to the lands of the

plaintiffs here and in which similar

- claims were pleaded has been tried.

139a

BSS PSEA iene OP. eee see

District Court: Opinion

In a Decision dated August l, 1972,

Judge Bonsal held that the plaintiff

in Dempsey v. City of New York, 66 Civ.

2153, had failed to prove his case.

Dempsey was proceeding pro se on the

theory that he had failed to re-open

his resort hotel on the Delaware River

because of the City’s diversion of the

River. The Court held at p. 5 of its

Decision that:

"{a] careful review of the evidence

satisfies the court that the plain-

tiff's uncorroborated testimony has

failed to prove by a fair preponder-

ance of the evidence that he was

unable to use his property as a

hotel and restaurant because of the

diversion of water by the City.

This disposition makes it unneces-

sary to consider the several de-

fenses interposed by the City."

Title K, Chapter 51 of the Adminis-

trative Code of the City of New York,

known as the Water Supply Act, created

140a

District Court Opinion

a Board, consisting of four Commis-

sioners, to supervise and ensure the

City's continued supply of fresh water.

The Act provides for compensation to

be paid land owners in New York whose

property is taken outright for reser-

voir and associated purposes (K51-11.0).

It also provides for compensation for

owners whose property is "directly or

indirectly decreased in value" (K5l-

44.0), as a result of the City's

efforts to obtain water. Under this

latter provision, substantial awards

have been paid to riparians on the

Neversink and Delaware Rivers, among

others. See, e.g., In re Maguire

(Wingert), 48 App.Div.2d 958 (3d Dept.

1975), leave to appeal denied, 37

N.Y.2d 712 (1976); In re Ford, 35

App.Div.2d 626 (3d Dept. 1970); In re

14la

5 ee SRE AL Tl ake MS ee oo GS

District Court Opinion

Ford (Luth), 18 App.Div.2d 855 (3d

Dept. 1963). In Gregory v. City of

New York, 346 F.Supp. 140 (S.D.N.Y.

1972), this Court held that procedures

under Title K were not available to

riparians situated outside of New

York State.

The deed of conveyance, Ex. 48, re-

“cites that "the petitioner (Wayne

County Savings Bank) believed the sum

a full and fair price for the said

premises and more than could be real-

ized at a public sale; that the peti-

tioner believed it to be to the in-

terests and advantage of the said

minor that the said premises be sold

for the price above mentioned."

Presumably, such failure was justi-

fied by immediate and overwhelming

142a

District Court Opinion

public necessity. No penal sanctions

were imposed.

Riparian owners maintaining the

electric generating dams on the

Mongaup River and at Lake Wallenpau-

pack on the Lackawaxen River are not

engaging in unreasonable diversion in

violation of the riparian rights of

downstream owners. They are merely

regulating the flow in the stream in

an unnatural fashion, dependent on

their power demands; the more electri-

city they generate at their locations

during a given time period, the greater

will be the amount of impounded waters

released. It is ordinarily considered

that the actions of the owner of a dam

who makes reasonable use of the waters

of a stream in the operation of saw

143a

kN Cn arate Gon nts AY Re Fae a lt Oe Be

eR IS TIE

ent ate

District Court Opinion

mills, grist mills, etc., without di-

verting water out of the watershed,

are not actionable at the instance of

the downstream owner. See, @.g.,

Pierson v. Speyer, 178 N.Y. 270 (1904).

This is confirmed by a Memorandum

filed in the Supreme Court by then

Solicitor General Bork in 1976, pur-

suant to a request by the Clerk of that

Court for information on the possible

effects on the 1954 Decree of N.Y.

Environ. Cons. L. § 15-0803, et seq.

(July 28, 1976), concerning Regulation

of Reservoir Releases. "For greater

convenience in its operation, and be-

cause of the higher quality water i

the Neversink and Pepacton Reservoirs,

the city has taken the major portion

of its water for city supply from

those reservoirs and made the major

144a

District Court Opinion

portions of the downstream releases

required under the decree from the

Cannonville [sic] Reservoir."

andum at 2.

145a

Memor-

ae eee ee i aa

APPENDIX B

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-— == = we we ewe eewree ee we we we oe oo ».4

LLOYD F. CANFIELD and ELOISE L.

CANFIELD, : 71 Civ.

5568-CLB

Plaintiffs, :

-against- : JUDGMENT

THE CITY OF NEW YORK, : #78,695

Defendant. :

wee e-e- ee ee ee ee ee ew X

Upon the Findings and Conclusions

after trial filed simultaneously herewith,

and on all prior papers and proceedings,

it... 42

ADJUDGED, that plaintiffs, LLOYD F.

CANFIELD and ELOISE L. CANFIELD, recover

of the defendant CITY OF NEW YORK, a muni-

cipal corporation of the State of New

York, the sum of $99,600.00, together with

pre-judgment interest thereon amounting

to $39,972.000, making a total of

$139,572.00, and costs to be taxed, and

interest thereon at the rate of 6% per

annum from the date of this Judgment un-

till the date of payment; and it is

further

ORDERED, that proceedings to

enforce this Judgment are stayed pending

appellate finality, and pending compliance

by plaintiffs with § 394a-2.0 of the Ad-

ministrative Code of the City of New York

and tender by plaintiffs to defendant of

lb

a

_—

Beri ia he is ee 8 a aS Bias adhd

a release in proper form for record in

Wayne County, Pennsylvania.

Dated: New York, New York

March 31, 1978

s/

Charles L. Brieant

Us Be De. a

JUDGMENT ENTERED - 4/3/78

Raymond F. Burghardt

CLERK

4/24/78 - Bill of Costs as taxed in the sum

of $895.10, in favor of plain-

tiffs, as against defendants, and

added to the judgment.

s/ Raymond F. Burghardt

CLERK

2b

APPENDIX C

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

a

Nos. 385-389—August Term, 1978.

(Argued February 5, 1979

Decided September 27, 1979.)

Docket Nos. 78-7196 - 78-7200

>

LILLIAN J. BADGLEY

EMIL LAKE and HELEN LAKE,

GEORGE ELwoop, Admr., ESTATE OF B. VAN LOAN,

LLoyp and ELOISE L. CANFIELD,

GEORGE and HELEN GREGORY,

Plaintiffs-Appellees.

—YV.—

THE City OF NEW YORK,

Defendant-Appellant.

Before:

WATERMAN, MANSFIELD and TIMBERS,

Circuit Judges.

>

City of New York appeals from judgments entered

below, Southern District of New York, Brieant, J.,

lc (4867 )

COURT OF APPEALS OPINION

opinion reported at 450 F.Supp. 846 (1978), holding

appellant liable to these appellees in these cases, con-

solidated upon appeal. Appellees are Pennsylvania

owners of Pennsylvanian riparian lands along the

Delaware River, and they obtained judgments against

the City for its alleged tortious manipulation of the

waters of the River. Judgments reversed.

>

MICHAEL R. GOTTLIEB (Kalter & Gottlieb,

Woodbourne, N.Y. on the brief) for

Appellees Elwood, Gregory, Badgley

and Lake.

JACK WEINBERG (Graubard, Moskowitz,

McGoldrick, [Dannett and Horowitz,

New York City, and Herman E. Gott-

fried, Margaretville, N.Y., Jay C.

Cooke and Steven J. Brill, of counsel,

on the brief) for Appellees Canfield.

Morris EINHORN (Allen G. Schwartz, Cor-

poration Counsel, New York City, L.

Kevin Sheridan, Leonard Olarsch and

William Murray, of counsel, on the

brief) for Appellant.

—>—

WATERMAN, Circuit Judge:

These actions consolidated for trial, were brought

by or in the name of, owners of riparian land

situated in Pennsylvania, who claim that the value of

their lands along the Delaware River and its West

Branch was diminished by the City of New York’s

impoundment, diversion and manipulation of the

headwaters of the Delaware River for the City’s

COURT OF APPEALS OPINION

public water supply purposes. The City’s answer ad-

mitted that it impounds and diverts the Delaware

waters and that it manipulates the flow of the river.

The City contended, however, that these acts were

authorized by the U.S. Supreme Court’s equitable ap-

portionment of the Delaware River waters, decreed in

New Jersey v. New York, 347 U.S. 995 (1954) [New

Jersey v. New York IV], litigation to which the

Commonwealth of Pennsylvania was a party. Accord-

ingly, the City asserted that the rights of these in-

dividual riparian landowners in Pennsylvania were

adjudicated with those of Pennsylvania itself and are

thus barred.

In June 1975, a non-jury trial on the issues of

liability and damages was held in the United States

District Court for the Southern District of New York

(Brieant, District Judge). On September 4, 1976, the

trial record was reopened to allow submissions by

the parties with reference to legislation enacted in

July 1976 (1976 N.Y. Laws ch. 888, codified at N.Y.

Envir. Conserv. Law §§ 15-0801 to -0807 (McKinney

Supp. 1979). On March 31, 1978, the trial court

issued its decision, 450 F.Supp. 846 (SDNY 1978),

setting forth its findings of fact and conclusions of

1 In the course of this opinion, reference will be made to

various stages of the litigation concerning the equitable appor-

tionment of the waters of the Delaware River by the United

States Supreme Court. Because the same parties were involved

at each stage, a Roman numeral suffix has been appended to the

official citation to differentiate the separate stages. It should be

noted that the separate stages, as set forth in the list below,

follow a chronological order, rather than the order of their ap-

pearance in this opinion.

New Jersey v. New York I, 280 U.S. 528 (1930)

New Jersey v. New York II, 283 U.S. 805 (1931)

New Jersey v. New York III, 345 U.S. 369 (1953)

New Jersey v. New York IV, 347 U.S. 995 (1954).

3c (4869 )

COURT OF APPEALS OPINION

law, awarding damages plus interest to the plaintiffs

appellees and against the City. From that judgment

the City appeals, raising three allegations of error:

(1) that the district court erred in holding that com-

mon law riparian rights are not destroyed or altered

in streams, the waters of which have been appor-

tioned by a United States Supreme Court decree in-

voking the common law doctrine of equitable appor-

tionment; (2) that the district court was incorrect in

determining that the amount of damages to be

awarded to appellees should not be affected by a

post-trial two-year experimental program to ascertain

if and to what extent certain of the damaging condi-

tions underlying the judgment herein can be ameli-

orated; and (3) that the district court’s method of

computing damages was erroneous.

Inasmuch as we reverse the judgment below and

order the entry of judgment for the appellant City,

and as we base our holding upon the first issue, we

need not and do not reach the latter two issues.

The Delaware River begins its flow within the

bounds of New York State. The East Branch, which

is entirely within New York State, and the West

Branch, which is also entirely within New York

State, except for approximately 8 miles above Han-

cock, N.Y., join at Hancock to form the main stream

of the Delaware River. Thereafter the river flows in

a generally southeasterly direction. Commencing

about 4 miles south of Deposit, New York, the West

Branch forms the boundary line between New York

and Pennsylvania for approximately 8 miles, and

thereafter the main stream forms the boundary line

for some 68 miles to Port Jervis, N.Y. At Tri-State

Rock, near Port Jervis, New York, the boundaries of

4c (4870 )

COURT OF APPEALS OPINION

New Jersey, New York and Pennsylvania converge.

Below Tri-State Rock the river constitutes the boun-

dary between New Jersey and Pennsylvania, and at

the head of Delaware Bay near Wilmington, Dela-

ware it discharges into the Atlantic Ocean.

In order to meet its increasing need for supplies of

public water New York City in 1929 began to plan

the diversion of the waters of the Delaware River

and its tributaries. Shortly thereafter, the State of

New Jersey commenced an original suit in the U. S.

Supreme Court against the State of New York and

the City of New York to enjoin and restrain any

diversion of the waters of the Delaware River and its

tributaries. In its bill of complaint New Jersey al-

leged that the proposed diversion would deprive New

Jersey “and its citizens as riparian owners along the

Delaware River of the natural, unobstructed and un-

diminished flow of its ‘waters in violation of their

rights under the common-law.” and would thereby

“take the property of the plaintiff and its citizens

without due process of law,” in viclation of the four-

teenth amendment of the U.S. Constitution. New

Jersey further alleged that the proposed diversion

would substantially harm navigation, water power,

sanitation, industrial use, oysters, fish, water supply,

agriculture and recreation in the Delaware Valley

basin.

The Commonwealth of Pennsylvania was permitted

to intervene, New Jersey v. New York I, 280 US.

528 (1930), upon filing a Statement of Interest and

Relief desired. In its statement Pennsylvania set

forth its opposition to the application of the common

law doctrine of riparian rights advocated by New

Jersey inasmuch as that doctrine would prevent the

5c (4871 )

COURT OF APPEALS OPINION

development and use of the Delaware River and its

tributaries as a present and future source of water

supply for Philadelphia and eastern Pennsylvania. In-

stead, Pennsylvania proposed a fair and equitable

division of the waters of the Delaware River and its

tributaries between the three states in accordance

with the doctrine of equitable apportionment.

Following considerable testimony before Special

Master Charles N. Burch, Esq., the Special Master

prepared a report and recommended decree to the

Supreme Court which was adopted and incorporated

in the decision and decree entered on May 25, 1931.

New Jersey v. New York II, 283 US. 805 (1931).

The Decree, adopting the doctrine of equitable appor-

tionment, limited New York’s diversion to 440

million gallons daily (m.g.d.), and, as proposed by the

Commonwealth of Pennsylvania, imposed a compen-

satory release plan. Under this plan, releases were re-

quired from New York reservoirs to maintain flows

at Port Jervis, New York, at or above 1535 cubic

feet per second (c.f.s.), and at Trenton, New Jersey,

at or above 3400 c.f.s., provided that the maximum

release required would be 30 per cent of the average

diversion area’s yield, or 402.6 c.f.s. The purpose of

these releases was to protect downstream states from

potential injuries to municipal, recreational and

fishery uses, particularly during low-flow periods.

The Decree also required the construction of a

sewage treatment plant at Port Jervis. Paragraph 6

of the 1931 Decree provided that the Court’s jurisdic-

tion should be a continuing one and any party was

authorized to apply subsequently for further action

or relief, or for any modification of the Decree.

6c (4872 )

COURT OF APPEALS OPINION

In April 1952 the City petitioned the Court to

amend the 1931 Decree so as to allow an increase in

the diversion of Delaware River waters of as much

as 800 m.g.d. The States of New York, New Jersey,

Pennsylvania and Delaware appeared as parties or as

interveners, and the matter was referred to Special

Master Kurt F. Pantzer, Esq. Following hearings

before the Special Master and a lengthy series of

negotiating sessions, the parties agreed to the terms

of a consent decree to replace the 1931 Decree. This

consent decree was reported by the Special Master

and entered by the Court on June 7, 1954. New

Jersey v. New York IV, 347 U.S. 995 (1954).

The 1954 Consent Decree authorizes the City of

New York, following the completion of the Can-

nonsville Reservoir on the West Branch, to divert up

to 800 m.g.d. subject to a new and somewhat dif-

ferent scheme for compensatory releases known as

the “Montague Formula.” This Formula requires the

City to maintain certain minimum flows of water at

Montague, New Jersey, approximately 75 miles

downstream from the confluence of the East and

West Branches of the River. The 1954 Decree fur-

ther provides for certain excess releases depending

upon the City’s expected consumption of water, for

the appointment of a River Master, and continues to

require sewage treatment at Port Jervis. As in the

1931 Decree, the Court retained jurisdiction of the

dispute, permitting the parties to apply for modifica-

tion of the Decree, *r for any pertinent supplemental

orders. In 1961 the four basin states entered into a

Compact creating the Delaware River Basin Commis-

sion (hereinafter “DRBC), Del. Code tit.7,

§§ 6501-6511 (1974); N.J.Stat. Ann. §§32:11 D-1 to

7c( 4873 )

COURT OF APPEALS OPINION

D-110 (West 1963); N.Y. Envir. Conserv. Law

§§ 21-0701 to -0723 (McKinney 1973); Pa. Stat. Ann.

tit. 32, §§ 815.101—.106 (Purdon 1967), which Com-

pact subsequently was approved by Congress,

Delaware River Basin Compact, Pub. L. No. 87-328,

75 Stat. 688 (1961).

The general purposes of the Compact are “to pro-

mote interstate comity; to remove causes of present

and future controversy; to make secure and protect

present developments within the states; to encourage

and provide for the planning, conservation, utiliza-

tion, development, management and control of the

water resources of the basin; [and] to provide for

cooperative planning and action by the signatory par-

ties with respect to such water resources.” (Delaware

River Basin Compact, Art.I, par.1-3(e)).

Throughout Article 3 of the Compact, the Article

setting forth the powers and duties of the Commis-

sion, there is constant reference to limitations upon

the Commission, limitations deriving from the Decree

of the United States Supreme Court in New Jersey

v. New. York IV, 347 U.S. 995. Though in extraor-

dinary circumstances, such as drought, the Commis-

sion may direct increases or decreases in any alloca-

tion or diversion or release of water required by the

above mentioned decree, it is clear that, except for

such an emergency, the Commission may not act,—

and nothing in the Compact shall be construed—in

any way so as to impair, diminish, or otherwise

adversely affect the rights, powers, privileges, condi-

tions, and obligations contained in that decree. For

instance, Article 3, Section 3.3 reads as follows:

8c (4874 )

COURT OF APPEALS OPINION

3.3 Allocations, Diversions and Releases. The

Commission shall have the power from time to

time as need appears, in accordance with the

doctrine of equitable apportionment, to allocate

the waters of the basin to and among the states

signatory to this compact and to and among

their respective political subdivisions, and to im-

pose conditions, obligations and release _re-

quirements related thereto, subject to the follow-

ing limitations:

(a) The commission, without the unanimous

consent of the parties to the United States

Supreme Court decree in New Jersey v. New

York, 347 US. 995 (1954), shall not impair,

diminish or otherwise adversely affect the diver-

sions, compensating releases, rights, conditions,

obligations, and provisions for the administration

thereof as provided in said decree; ... .

subject, however, to the emergency provision pre-

viously mentioned.

Moreover, in Article 3, Section 3.4, each of the

signatory states waived or relinquished for the dura-

tion of the Compact, any right, privilege or power a

state may have to apply for any modification of the

terms of the Decree in New Jersey v. New York IV,

which would increase or decrease the releases re-

quired, except through a proceeding in the Supreme

Court to modify the Decree or in the event of an

emergency such as drought.

Despite the terms of the 1954 Decree and the

Compact, the district court below found, 450 F.Supp.

846 (1978), that the plaintiffs as riparian owners are

entitled to the “full natural flow of the Delaware

River,” id. at 864, and that “riparian rights within a

9c 4875 )

COURT OF APPEALS OPINION

state are purely a matter of that state’s concern .. .

and are not, by that fact alone, destroyed or altered

when the Supreme Court applies federal common law

to conflicts between the states and apportions the

total waters of the stream among the various com-

peting interests.” Jd. at 866. The district court noted

that any parens patriae suit brought by one state

against another state for the single purpose of pro-

tecting the property rights of its individual citizens

would be barred by the Eleventh Amendment to the

U. S. Constitution. From this the court below con-

cluded that the Commonwealth of Pennsylvania could

not have the rights of these individual plaintiffs ad-

judicated in the proceedings before the Supreme

Court. Accordingly, the district court rejected the

City’s argument that under the federal common law

doctrine of equitable apportionment, as applied by

the Supreme Court in New Jersey v. New York II,

supra, the rights of these Pennsylvania plaintiffs

were adjudicated with those of the Commonwealth of

Pennsylvania, barring recovery by them here.

We cannot agree with the district court’s conclu-

sions. A careful analysis of the nature of parens

patriae suits between states in original proceedings

before the Supreme Court convinces us that, as a

party to the proceeding, Pennsylvania represented all

of its citizens, United States v. Nevada, 412 US.

534, 539 (1973); Hinderlider v. La Plata Co., 304

U.S. 92, 106 (1938); Wyoming v. Colorado, 286 US.

494, 506-507 (1932); Kentucky v. Indiana, 281 US.

163, 173 (1930); Kansas v. Colorado, 206 US. 46, 99

(1907), and that the terms of the decree are thus

conclusive upon all Pennsylvania citizens and bind

their rights.

10c ( 4876)

COURT OF APPEALS OPINION

The Supreme Court has rejected reasoning similar

to that relied upon by the district court.? In Wyom-

ing v. Colorado, supra, the State of Wyoming

brought a suit against the State of Colorado to en-

force a decree of the Court rendered in an earlier

suit between the same states dealing with their

relative rights to divert and use for irrigation the

waters of the Laramie River. There the Court stated:

But it is said that water claims other than the

tunnel appropriation could not be, and were not,

affected by the decree, because the claimants

were not parties to the suit or represented

therein. In this the nature of the suit is mis-

conceived. It was one between States, each act-

ing aS a quasi-sovereign and representative of

the interests and rights of her people in a

controversy with the other. Counsel for Colorado

insisted in their brief in that suit that the

controversy was “not between private parties”

but “between the two sovereignties of Wyoming

and Colorado”; and this Court in its opinion

assented to that view, but observed that the con-

troversy was one of immediate and deep concern

to both States and that the interests of each

were indissolubly linked with those of her ap-

propriators. 259 U.S. 468. Decisions in other

cases also warrant the conclusion that the water

2 See Nebraska v. Wyoming, 295 U.S. 40, 43 (1935), where the

Court rejected the notion that the U.S. Secretary of the Interior

was a necessary party to original proceedings before the Court

to apportion the waters of the North Platte River. Inasmuch as

the position of the Secretary of the Interior is that of an ap-

propriator of water for storage under the laws of Wyoming, the

Court reasoned that “{hjis rights can rise no higher than those

of Wyoming, and an adjudication of the defendant's rights will

necessarily bind him. Wyoming will stand in judgment for him

as for any other appropriator in that state.”

llc( 4877 )

COURT OF APPEALS OPINION

claimants in Colorado, and those in Wyoming,

were represented by their respective States and

are bound by the decree.

286 U.S. at 508-509 (footnote omitted).

It is indeed true that the standing of states to

bring parens patriae actions on behalf of their

‘citizens is limited by the Eleventh Amendment's pro-

hibition against suits by citizens of one state against

another state. Thus a state acting parens patriae may

not invoke the Supreme Court’s original jurisdiction

to protect the individual rights of its citizens. Penn-

syluania v. New Jersey, 426 US. 660, 665-666

(1976); Hawaii v. Standard Oil Co. of California, 405

U.S. 251, 258-259 (1972); Oklahoma v. Atchison, T.

& S.F.Ry., 220 U.S. 277 (1911); Kansas v. Colorado,

supra, 206 U.S. at 98-99; Louisiana v. Texas, 176

U.S. 1 (1900); New Hampshire v. Louisiana: New

York v. Louisiana (companion cases), 108 U.S. 76

(1883); Pennsylvania v. National Ass'n of Flood In-

surers, 520 F.2d 11 (3d Cir. 1975). Nor may a state

sue to recover damages on behalf of its individual

citizens. North Dakota v. Minnesota, 263 U.S. 365,

375-376 (1923). Rather, a suit may be brought by a

state “for an injury to it in its capacity of

quasi-sovereign. In that capacity the State has an in-

terest independent of and behind the titles of its

citizens, in all the earth and air within its domain.”

Georgia v. Tennessee Copper Co., 206 U.S. 230, 237

(1907).

Thus, appellees are correct in asserting that Penn-

sylvania could not have brought suit or intervened in

the suit against New York to protect a mere collec-

tivity of private riparian rights. But to draw from

12c (4878 )

COURT OF APPEALS OFINION

this the conclusion that the individual interests of

Pennsylvania’s riparian owners were not represented

in the suit and are thus not affected by the Decree

is to ignore the obvious fact that the riparian rights

of the appellees are not independent of Pennsyl-

vania’s rights in the waters of the Delaware River

but rather are derivative therefrom and are subject

to change by the laws of that state. Connecticut v.

Massachusetts, 282 U.S. 660, 670 (1931). Thus. it

necessarily follows that the rights of Pennsylvania

citizens cannot exceed those of Pennsylvania itself?

and the extent of Pennsylvania’s rights in the Dela-

ware River was conclusively determined by the terms

of the Decree.

Appellees maintain that the Supreme Court

Decrees and Compact provisions cannot be _inter-

preted in such a way as to divest them of their

riparian nights to the full natural flow of the

Delaware River without just compensation. The fact

is, however, that Pennsylvania never had a right to

3 The Supreme Court early established that a

. . . tate

to private parties title to land which is later Seumuaiiad ee.

terstate compact or Supreme Court decree to be beyond the true

state. “Title, jurisdiction, sovereignty, are, there

questions, necessarily settled, on the stn gg scene

which, being the line of territory, is the line of power over it .

Rhode Island v. Massachusetts, supra, 37 US. at 733. In Poole

a ae of Fleeger, supra, the Court held that the fixing of the

undary does not result in a “divestiture” of citizens’ titles to

nds which were derived from grants under the state. Rather

the citizens titles are invalid, ab initio, due to “an intri ic

defect of title in the states.” 36 US. at 210 sa

13c (4879 )

COURT OF APPEALS OPINION

‘an undiminished flow of the Delaware River. As the

Supreme Court made clear in its Decree in L931:

A river is more than an amenity, it is a

treasure. It offers a necessity of life that must

be rationed among those who have power over

it. New York has the physical power to cut off

all the water within its jurisdiction. But clearly

the exercise of such a power to the destruction

of the interest of lower States could not be

tolerated. And on the other hand equally little

could New Jersey be permitted to require New

York to give up its power altogether in order

that the River might come down to it undimin-

ished. Both States have real and substantial in-

terests in the River that must be reconciled as

best as they may be.

283 U.S. at 342-343 (emphasis added)

It is manifest that a state cannot grant to private

parties any privately owned property interest in

riparian rights greater than the state’s own property

interest in them.‘ In Hinderlider v. La Plata Co.,

4 See footnote 3, supra; and we also reject the district court’s

reliance upon the following language in the Supreme Court’s

1954 opinion in New Jersey v. New York IV, supra, to suppert

its conclusion that the Supreme Court did not “directly rule on

the effect of its Decrees on individual riparian owners.” 450

Supp. at 865. “No diversion herein allowed shall constitute a

prior appropriation of the waters of the Delaware River or con-

fer any superiority of right upon any party hereto in respect of

the use of the waters.” 347 U.S. at 1004. To our mind, this

language reflects merely that the Court did not intend to

establish any permanent “superiority of right” in any party

because that party at the time of apportionment under the 1954

Decree was granted rights in the water apportioned by the

Decree. Rather, said apportionment was meant to be subject to

future modifications due to changes in circumstances affecting

14c( 4880 )

COURT OF APPEALS OPINION

supra, a Colorado company claimed that an interstate

compact allocating the waters of the La Plata River

denied its right to appropriate the water under an

earlier decree of a Colorado court, thereby depriving

it of its property without just compensation. The

Supreme Court rejected this claim, explaining:

It may be assumed that the right adjudicated

by the decree [of the Colorado court] to the

Ditch Company is a property right, indefeasible

so far as concerns the State of Colorado, its

citizens, and any other person claiming water

rights there. But the Colorado decree could not

confer upon the Ditch Company rights in excess

of Colorado’s share of the water of the stream;

and its share was only an equitable portion

thereof.

304 U.S. at 102.

Appellees attempt to avoid the clear applicability

of Hinderlider to the present case by arguing that

while the Supreme Court decree may preclude them >

from seeking equitable relief in order to obtain water

in excess of their State’s share of the river waters,

as was sought by the Ditch Company in Hinderlider,

the equities of the apportionment. See Nebraska v. Wyoming, .

325 U.S. 589, 622-623 (1945.) This interpretation is borne out in

part by the words of Special Master Burch in his Report to the

Supreme Court in 1931 wherein he identified this language as

not pertaining to the rights of the Delaware River Basin States:

“I do ret think that the mere fact that the State and City of

New York are first in point of time in taking waters from the

tributaries of the Delaware River gives any superiority of right.

While the doctrine of priority of appropriation is applied in

some of the arid states of the west and is part of the public

policy of such states, I find no such principle obtaining in New

York, New Jersey, or Pennsylvania,” at 191.

15c (4881)

COURT OF APPEALS OPINION

the decree does not affect their right to damages for

a diminished flow. We do not agree, for so to hold

would hobble or possibly even destroy the effect of

Supreme Court decrees or Congressionally approved

interstate water compacts by subjecting those who

rely upon the provisions of the decrees or interstate

compacts to unreasonable damage burdens. What the

Supreme Court decreed would be rendered nugatory

by damage awards to private owners, a result in-

herently inconsistent with the supremacy of the

Supreme Court’s decree of equitable apportionment.

Accordingly, we reverse the lower court’s holding

that New York City’s diversion of waters, diversion

done pursuant to the terms of the 1954 Supreme

Court decree, was an actionable wrong which could

form the basis for damages.

This does not end our discussion, however, for the

district court further held that

[e]ven if we accept for the sake of argument the ©

contention that Pennsylvania riparians on the

Delaware are presently enjoying the full volume

of water to which they were ever entitled, the

fact remains that the City by its dams has

materially altered and worsened the remaining

waters of the Delaware, that is, has worsened

the portions allotted, under the City’s arguments,

to Pennsylvania, New Jersey and Delaware... .

[T]he City’s works have adversely affected the

temperature, flow, stage and quality of the

River. The Supreme Court’s Decrees were cer-

tainly not intended as licenses for the City to

commit such injuries without liability.

450 F.Supp at 867.

16c (4882 )

COURT OF APPEALS OPINION

In order to comprehend more fully the effects that

the City’s diversions and compensatory releases have

had upon plaintiffs’ riparian properties, it is

necessary to describe in greater detail the location of

the City’s dams in relation to plaintiffs’ properties

and the manner in which the Montague Formula, as

set forth in the 1954 Decree, is being met.

Pursuant to the 1931 Decree and the 1954

Amended Decree, New York City constructed three

dams. The first to be built was that on the Never-

sink River, a tributary of the Delaware River, enter-

ing the Delaware River at Port Jervis, N.Y., a point

approximately 67 miles below the confluence of the

East and West Branches of the Delaware River at

Hancock and about 8 miles above Montague. Im-

poundment of the waters of the Neversink River by

the City began in 1953. The second dam to be con-

structed was the Pepacton Dam on the East Branch

of the Delaware River, impoundment beginning there

in 1954. The third dam was the Cannonsville Dam

on the West Branch of the Delaware River, impound-

ment commencing in 1963.

The Eiwood (Van Loan) parcel is the only one of

plaintiffs’ parcels located above the confluence of the

East and West Branches, it being situated on the

West Branch 13.5 miles down stream from the Can-

nonsville Dam. The remaining four parcels are on the

mainstream, ranging from six to thirty miles

downstream from Hancock.

There is no requirement in the Amended Decree

identifying the sources of the mandated minimum

flow at Montague. Uncontradicted testimony at trial

showed that the River Master (charged with enforce-

ment of the Decree) has relied increasingly over the

17c( 4883 )

COURT OF APPEALS OPINION

years on power plant: releases on the Mongaup and

Lackawaxen Rivers to make up the required flow at

Montague. However, these power plant releases are

not subject to the River Master’s control and fluc-

tuate greatly in the amounts of water released from

time to time. Moreover, when the River Master does

call upon the City for releases to supplement the

flow at Montague, the City has the discretion to

release the water called for from any one or from all

three of its reservoirs. Inasmuch as the power com-

pany releases and the Neversink Dam releases enter

the Delaware River upstream of Montague but down-

stream from plaintiffs’ properties, the flow of water

past plaintiffs’ premises on any given day is not

directly assured by the provisions of the decree.

Thus, while it is possible for the releases called for

to maintain the Montague Formula to be fulfilled

totally by the power plant releases, records indicate

that the City has, in the past, made releases from

the Cannonsville Reservoir which have approximated

one billion gallons of

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