# Appendix — Canfield v. New York City > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2005%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 447 U.S. 906 ## Text 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 2a 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 3a 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- 4a 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. 5a 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 6a 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. 7a 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- 8a 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 9a 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 l3a 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 18a se a Ia ae! 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 19a 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 np 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 27a 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 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 water per day. 450 F. Supp. at 859. Thus, the district court found that there were substantial fluctuations on a daily basis in the flow of water as it passed by appellees’ premises. The court also found that, inasmuch as the City’s dams were constructed in such a way as to release water from the bottom of the dams, where the water temperature averages 40° Fahrenheit year-round, unaffected by air temperature, the river temperature in the summer in front of plaintiff’s properties fluc- tuated between the upper 50’s and the 70’s, render- ing the river suitable as neither a warm-water fishery nor a cold-water fishery. Also, it further found that the fluctuations in volume, stage, flow 18c (4884 ) COURT OF APPEALS OPINION and temperature of the river, produced by the City’s meeting the Montague Formuls, nad adverse effects on swimming, boating, and the general ecology of the river, and, in particular, it noted the growth of slime, algae and mosquitoes along the river. Id. at 870-871. The rights of appellees to collect damages for the City’s acts relative to the waters of the Delaware River, as described above, depend upon the scope of rights granted to the City under the terms of the Decree and Compact. For, as we determined above, the rights of these Pennsylvania citizens are no greater than those of Pennsylvania, and they may not exceed Pennsylvania’s rights to the extent that they interfere with the rights granted to the City under the terms of the Decree and Compact by plac- ing an onerous price upon the exercise of those rights. The question then becomes one of interpretation as to the scope of the ri, ats granted to the City under the terms of the 1954 Decree and Compact. Put simply, New York City was given the right to divert 800 m.g.d. subject to certain conditions of river management. One must query whether these condi- tions were meant to be exclusive, specifically leaving to the City the right to exercise its discretion in choosing the means by which to meet these condi- tions of river management. Or did the Court merely establish a very general release scheme, setting forth only minimum standards of river regulation without intending to address specifically issues relative to the impact that the operation of such a general release scheme might have upon the various downstream riparian interests? 19c (4885 ) COURT OF APPEALS OPINION An analysis of the proceedings before the Special Masters and of the terms of the 1931 and 1954 Decrees convinces us that the Court intended to establish a comprehensive scheme of river regulation, all-inclusive as to all matters concerning the manipulation of the flow of the undiverted portions of the waters of the Delaware River. In arriving at the terms of the Decrees the Special Masters took into consideration numerous and varied factors, in- dicating distinctly “the nature of the problem of ap- portionment and the delicate adjustment of interests which must be made.” Illinois v. City of Milwaukee, 406 US. %1, 106 (1972), (quoting Nebraska uv. Wyoming, supra, 325 U.S. at 618). Evidence taken in the proceedings covered not only considerations of municipal water supply needs but also those of ecology, sanitation, fisheries, and recreation on and along the undiverted river waters. Appellees maintain that their rights to the recrea- tional value of the river properties could not have been and were not advanced in the proceedings before the Supreme Court. However, recreational in- terests, and the possibility that such interests would be harmed by the proposed diversion and release schemes, were advanced by the State of New Jersey on behalf of its citizens. And, indeed, such considera- tions played a major role in the Court’s rejection of the New York plan of release, a reduction of the City’s original request in 1931 for diversion of 600 m.g.d. to an allowed diversion of only 400 m.g.d. and in the requirement of sewage treatment.° 5 See page 146 of the Report of Special Master Charles N. Burch to the U. S. Supreme Court in the proceedings of New Jersey v. New York II (1931). 20c (4886 ) COURT OF APPEALS OPINION Moreover, to the extent that their properties were located across the river from those of the New Jersey riparian landowners, the interests of downstream Pennsylvania riparians in the recrea- tional uses of the river were necessarily considered along with those of the New Jersey property owners.** That the recreational interests of Penn- sylvania riparians, such as appellees, whose lands were farther upstream, were not stressed in either the 1931 or 1954 proceedings is due in large measure to Pennsylvania’s emphasis in both pro- ceedings upon the industrial and water supply needs of Philadelphia and southeastern Pennsylvania. This overriding concern of Pennsylvania was evident at several stages of the proceedings before the Court. In the 1931 proceeding evidence presented by Pennsylvania pertained primarily to proof that no substantial damage would be caused by the New York diversion if taken pursuant to the Pennsylvania plan of impounding and release, a plan which was ultimately adopted by the Special Master as a better plan than that proposed by New York. The New York plan of release guaranteed only that there would be a total flow of 275 c.f.s. during every day of July, August, September and October immediately 6 On page 140 of his Report, Special Master Burch said with reference to the recreational value of Pennsylvania riparian lands: “In this connection it should be remembered that the State of Pennsylvania, on the opposite bank of the Delaware River from New Jersey, is just as much interested in any damage to the Delaware River as the State of New Jersey and, if any damage is sustained, those damages will be borne by Pen- nsylvania to the same extent as New Jersey, with the exception of damage to oyster beds. . . . The pleasure and recreational ac- tivities and developments appear to be greater on the Penn- sylvania shore than on the New Jersey shore.” 21c( 4887 ) COURT OF APPEALS OPINION below the point of storage and that there would be a similar flow of 275 c.f.s. below the point of storage on every day during the remaining eight months when the water yield of the diversion area was less than 275 c.f.s.. Thu> it appears that the New York plan of release proposed in 1931 would not have resulted in the sort of drastic fluctuation in flow, stage and temperature during the summer months which appellees now find to be so objectionable. It appears, however, that appellees’ sovereign, Penn- sylvania, made the policy decision to oppose this plan in favor of one providing for a greater stabilization of downstream river conditions. In the 1954 proceedings Pennsylvania conceded that “no present injury will be done to it if New York builds the Cannonsville Reservoir, diverts 800 m.g.d. and releases water according to the Montague Formula.” Indeed, the Commonwealth of Penn- sylvania explicitly recognized the beneficial value of the Montague Formula to its citizens in its memoran- dum of December 7, 1976, presented to the District Court in response to that Court’s request that the parties in the original action state their position with regard to New York Environmental Conservation Law §§ 15-0801 [1], 15-0805 [2] enacted in July 1976 (1976 N.Y. Laws ch. 888). This Conservation Law represented an attempt by the New York legislature to ameliorate the detrimental impact of New York City’s release regime upon recreational uses of the Delaware River and its tributaries below the dams. In its memorandum, Pennsylvania opposed any new release regimen that would in any way threaten the 7 See Report of Special Master Burch at 55. 22¢( 4888 ) COURT OF APPEALS OPINION City’s ability to meet the Montague Formula in periods of drought, stating that the |mJjaintenance of the Montague Formula flows is vital for the protection of downstream munici- pal industrial, recreational, fishery and other uses. It is not simply a legal requirement but a physical necessity. During drought conditions, the releases provided under the Formula are crucial in assuring water supplies to southeastern Pennsylvania and southern New Jersey. Without adequate flow, saline intrusion migrates up the River from the estuary threatening both Phila- delphia and Cam¢ »» public water systems. When one considers the cost to New York City of meeting the requirement of the Montague plan, it becomes apparent that Pennsylvania was indeed suc- cessful in demanding and securing for its citizens costly compensating benefits in exchange for the City’s diversions. For instance, under the terms of the Decrees, the City is required to devote approx- imately 32% of the storage capacity of its three dams to assure adequate flows at Montague during dry or low-stage periods of the river, resulting in a 250% increase in the observed minimum flow of the river." As counsel for appellant asserts without con- tradiction, the City’s expenditure for that additional storage capacity alone cost it approximately $30 million.’ In light of the City’s costly disbursements & See page 82 of the Report of the Special Master Kurt F. Pantzer to the U. S. Supreme Court in the proceedings of New Jersey v. New York IV. m) Appellant's Brief, p. 15. 23c (4889 ) COURT OF APPEALS OPINION for the benefit of the lower basin states, it hardly would appear equitable to require a supplemental outlay for the payment of damages to riparian land- owners such as appellees. That appellees do not receive the same benefits of stabilization in the stage and flow of the river as do downstream Pennsylvania riparians is simply a mat- ter of intramural dispute over the distribution of water within the Commonwealth. Appellees cannot be allowed to collaterally attack, in this suit against New York City, the wisdom of the policy choices made by their sovereign in the representation of all of its citizens acting in its capacity of parens patriae. In denying the City of Philadelphia’s motion to in- tervene in the 1954 proceedings, the Court stated that the state, when a party to a suit involving a matter of sovereign interest, “must be deemed to represent all of its citizens.” Kentucky v. In- diana, 281 U.S. 163, 173-174 (1930). The princi- ple is a necessary recognition of sovereign dig- nity, as well as a working rule for good judicial administration. Otherwise, a state might be judicially impeached on matters of policy by its own subjects, and there would be no practical limitation on the number of citizens, as such, who would be entitled to be made parties. New Jersey v. New York III, 345 U.S. 369, 372-373. Appellees cannot recover from New York City for what their own sovereign has ceded in their behalf. Their rights of recovery, if any, lie against Penn- sylvania. In both the 1931 and the 1954 proceedings 24c( 4890 ) COURT OF APPEALS OPINION before the Supreme Court, Pennsylvania did not op- pose the diversions by the City provided the water was taken pursuant to the plans of impoundment and release which were in fact ultimately adopted by the Court. Moreover, in 1961, Pennsylvania entered into the Delaware River Basin Compact, the provi- sions of which deny the DRBC the power to [e]xercise any jurisdiction, except upon consent of all the parties [to the 1954 Supreme Court Decree] over the planning, design, construction, operation or control of any projects, structures or facilities constructed or used in connection with withdrawals, diversions and releases of waters of the basin authorized by said decree or of the withdrawals, diversions or releases there- under. Delaware River Basin Compact § 3.5(c). The provisions of the compact further forbid the DRBC to “{iJmpose or collect any fee, charge or assessment with respect to diversions of waters of the basin permitted by said decree.” Id. § 3.5(b). To grant appellees damages for injuries to their riparian properties which arise from the City’s meeting of the Montague Formula would amount to a total circumvention of these Compact provisions and would accomplish what would otherwise require the unanimous consent of all parties to the Decree.'® 10 Appellees cannot be permitted to mount such a collateral at- tack seeking personal damages. For, as the Supreme Court stated in Georgia v. Tennessee Copper Co., 206 U.S. 230, 239 (1907), whether a state “by insisting upon [its claim in its capacity as quasi-sovereign] is doing more harm than good to her own citizens is for her to determine.” See also City of Tacoma v. Taxpayers of Tacoma, 357 US. 320, 340-341 (1958) (citations omitted): 25c( 4891 ) COURT OF APPEALS OPINION The 1954 Decree specifically allows the City to main- tain the required flow at Montague by releasing water from “one or more of its storage reservoirs in the upper Delaware watershed.” New Jersey v. New York IV, supra, 347 US. at 997 (emphasis added). Thus the City is within its rights in choosing to meet the calls by the Special Master for additional water to maintain the flow at Montague by, for in- stance, releases entirely from the Cannonsville Reser- voir. The Decree does not address itself to the location on the dams to be constructed by the City of the apertures thereon from which impounded water is to be discharged, nor address itself to possible fluctua- tions in temperature which could result from place- ment of the apertures at the bottom of the dams. No party to the Decree raised this issue in the course of the proceedings before the Special Master. Indeed, it “would appear that if the impoundment and release procedure does produce injurious fluctuations in water temperature, such an occurrence would be the sort of “unforeseen particular”'' in anticipation of which the Court retained jurisdiction to allow for The final judgment of the Court of Appeals was effective, not only against the State, but also against its citizens, in- cluding the taxpayers of Tacoma, for they, in their common public rights as citizens of the State, were represented by the State in those proceedings, and, like it, were bound by the judgment. 11 New Jersey v. New York II, supra, 283 U.S. at 344. See also, page 207 of the Report of Special Master Burch, note 5 supra, wherein he recommended that the Pennsylvania plan of release be approved, “subject to such modifications as actual tests and experience may indicate, and without prejudice to any party to this case to apply for modification.” 26c (4892 ) COURT OF APPEALS OPINION further modifications of the terms of its Decree. However, by 1961 both the Neversink and Pepacton Dams had been completed; none of the parties to the Decree had applied for modification of its terms: and all the parties to the Decree had entered into the Delaware River Basin Compact, whose provisions fur- ther clarify the circumstances under which the par- ties to the Decree may apply to the United States Supreme Court for a modification of the terms of the Decree. Curiously, appellees have placed great reliance upon the following language in the Compact: “N6thing contained in this compact shall be con- strued as affecting or intending to affect or in any way to interfere with the law of the respective signatory parties relative to riparian rights.” Delaware River Basin Compact, Art. 14, §14.19. However, to interpret this provision as intending to allow for an award of damages for injury resulting from conduct clearly authorized by the terms of the 1954 Decree would put this section of the Compact in unreasonable conflict with several other sections thereof. See Delaware River Basin Compact, Art. 3, §§ 3.3(a), 3.5. Accordingly, we construe this provision to mean no more than that, within the limits of the Supreme Court Decree, the private riparian owners may enforce riparian rights against anyone who violates them. In short, appellees here have no direct means of obtaining the relief they request from appellant City for the injuries they complain of. If a remedy directed at moderating these variations in water temperature is now indicated, that remedy must now lie either in an application to the United States 27c( 4893 ) COURT OF APPEALS OPINION Supreme Court by a party to the Decree for a modi- fication of its terms or in an application to the DRBC by a signatory state to the Delaware River Basin Compact for a_ similar modification to the terms of the Compact, which application can only be entertained upon the unanimous consent of all of the parties to the Decree. - The judgments below are reversed. 28c (4894 ) 57U0—7-28-79 e USCA—4391 RECORD PRESS, INC.. 157 Chambers St.. N.Y. 10007. (212) 243-5775 ey APPENDIX D APPENDIX D UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Court- house in the City of New York, on the twenty-seventh day of September one thou- sand nine hundred and seventy-nine. Present: HON. STERRY R. WATERMAN HON. WALTER R. MANSFIELD HON. WILLIAM H. TIMBERS Circuit Judges, LILLIAN J. BADGLEY, EMIL LAKE and HELEN LAKE, GEORGE ELWOOD, Admr., ESTATE of B. VAN LOAN, LLOYD and ELOISE L. CANFIELD, GEORGE and HELEN GREGORY, Plaintiffs-Appellees, Vs. THE CITY OF NEW YORK, Defendant-Appellant. (Docket Nos. 78-7196 - 78-7200) DOCKETED AS A JUDGMENT # 80,0196 ON February 25, 1980 ld —— ee FILED SEP 27, 1979 UNITED STATES COURT OF APPEALS SECOND CIRCUIT Appeal from the United States District Court for the Southern District of New York. This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel. ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and de- creed that the judgments of said District Court be and they hereby are reversed in accordance with the opinion of this court with costs to be taxed against the appel- lees. A. DANIEL FUSARO, Clerk By: Arthur Heller, Deputy Clerk (A true copy, A. Daniel Fusaro, Clerk by Rolanne Henry, Deputy Clerk 2d UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT (Docket Nos. 78-7196 - 78-7200) September Term, 1978. STATEMENT OF COSTS Taxed in favor of Agmeitent, in LILLIAN J. BADGLEY, \ EMIL LAKE and HELEN LAKE, GEORGE ELWOOD, Admr., Estate of B. VAN LOAN, LLOYD and ELOISE L. CANFIELD, GEORGE and HELEN GREGORY, Plaintiffs- No. 385-389 Appellees ‘ vs. THE CITY OF NEW YORK Defendant- Appellant. a Docketing ACEION .scccccccacescS a50a00 Cost of Printing Appendix ..... 2,749.65 Cost of Printing Briet ..cccccc 210.55 Costs of Pringing [sic] reply Brisk 6 esses ts tbeceesee 81.90 Taxed at the sum of ..$3, ° 3d A. DANIEL FUSARO, Clerk BY: Arthur Heller, Deputy Clerk 4d APPENDIX E APPENDIX E UNITED STATES COURT OF APPEALS SECOND CIRCUIT At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the twenty-third day of January, one thousand nine hundred and eighty. Present: HON. STERRY R. WATERMAN HON. WALTER R. MANSFIELD HON. WILLIAM H. TIMBERS Circuit Judges. LLOYD and ELOISE L. CANFIELD, Plaintiffs-Appellees 78-7199 ¥. THE CITY OF NEW YORK, Defendant-Appellant. A petition for a rehearing having been filed herein by counsel for the appellees. Upon consideration thereof, it is le eS Ordered that said petition be and hereby is DENIED. s/ A. DANIEL FUSARO, Clerk FILED JAN 23 1980 UNITED STATES COURT OF APPEALS SECOND CIRCUIT 2e UNITED STATES COURT OF APPEALS SECOND CIRCUIT At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the twenty-third day of January, one thou- sand nine hundred and eighty. sshd evan cs edeisalbiptin ain aa aapeaadietaimandiigckiias hates ciinaiein x LLOYD and ELOISE L. CANFIELD, Plaintiffs-Appellees 78-7199 ve THE CITY OF NEW YORK, Defendant-Appellant ‘ A petition for rehearing contain- ing a suggestion that the action be re- heard in banc having been filed herein by counsel for the appellees, and no active judge or judge who was a member of the panel having requested that a vote be taken 3e on said suggestion, Upon consideration thereof, it is Ordered that said petition be and it hereby is DENIED. s/ eae Chief Judge IRVING R. KAUFMAN FILED JAN 23 1980 UNITED STATES COURT OF APPEALS SECOND CIRCUIT " 4e APPENDIX F APPENDIX F CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED HEREIN U.S. CONSTITUTION U.S. CONST. amend V provides, in per- tinent part: "No person shall be .. . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. CONST. amend. XIV provides, in pertinent part: e e« e No state shall... de- prive any person of .. . property, without due process of law....” [APPENDIX F Continued] lf DELAWARE RIVER BASIN COMPACT 1.6 Duration of Compact. (a) The duration of this compact shall be for an initial period of 100 years from its effective date, and it shall be con- tinued for additional periods of 100 years if not later than 20 years nor sooner than 25 years prior to the determination of the initial period or any succeeding period none of the signatory states, by authority of ar. act of its legislature, notifies the commission of intention to terminate the compact at the end of the then current 100 year period. * * * 3.4 Supreme Court Decree; Waivers. Each of the signatory states and their re- spective political subdivisions, in consid- eration of like action by the others, and in recognition of reciprocal benefits, hereby waives and relinquishes for the duration of this compact any right, pri- vilege or power it may have to apply for any modification of the terms of the de- cree of the United States Supreme Court in New Jersey v. New York, 347 U.S. 995 (1954) which would increase or decrease the diversions authorized or increase or decrease the releases required thereunder, except that a proceeding to modify such decree to increase diversions or compen- sating releases in connection with such increased diversions may be prosecuted by a proper party to effectuate rights, 2f powers, duties and obligations under Section 3.3 of this compact, and except as may be required to effectuate the pro- visions of paragraphs IIIB3 and VB of said decree. * * * 14.19 Effect on Riparian Rights. Nothing contained in this compact shall be construed as affecting or intending to affect or in any way to interfere with the law of the respective signatory parties relating to riparian rights. STATE CONSTITUTION Pa. CONST. art. 1, § 10, provides in pertinent part: "{P]rivate property [cannot] be taken or applied to public use, with- out authority of law and without just compensation being first made or secured." (Emphasis supplied) STATE STATUTES AND REGULATIONS 1 Smith, Laws Pa., provides: V. Be it therefore enacted, and it is hereby enacted, That all and every the estate, right, title, interest, property, claim and demand of the heirs and devisees, grantees, or other claiming as Proprieta- ries of Pennsylvania, whereof they or either of them stood seized, or to which they or any of them were entitled, or which to them were deemed to belong, on 3f the fourth day of July, in the year of our Lord one thousand seven hundred and seventy- six, of, in or to the soil and land con- tained within the limits of the said late province, now state of Pennsylvania, or any part thereof, together with the royalties, franchises, lordships, and all other the hereditaments and premises compromised, mentioned and granted in the same charter, or letters patent of the said King Charles the second (except as herein after is ex- cepted) shall be, and they are hereby vested in the commonwealth of Pennsylvania, for the use and benefit of the citizens thereof; freed and discharged, and abso- lutely acquitted, exempted and indemnified, of, from and against all estates, uses, trusts, entails, reversions, remainders, limitations, charges, incumbrances, titles, claims and demands, whatsoever, from, by or under the said charter, or letters patent, or otherwise, as fully, clearly, and entirely, as it the said charter, or letters patent, and the estates, interests, hereditaments and premises, therein com- prised, mentioned and granted, and all other the estate, right and title of the said Proprietaries, of, in and to the same premises, were herein transcribed and repealed. VI. And be it further enacted, That the said soil and lands, hereditaments and premises, and every part and parcel thereof (except as is herein excepted) from and after the date hereof, shall be subject to such disposal, alienation, con- veyance, division and appropriation, as to this or any future legislature of this commonwealth, shall from time to time seem 4f meet and expedient, in pursuance of such law or laws as shall for that purpose hereafter be made and provided. VII. Provided always, and be it en- acted, That all and every the rights, titles, estates, claims and demands, which were granted by or derived from the said Proprietaries, their officers or others by them duly commissioned, authorized and appointed, or otherwise, or to which any person or persons, other than the said Proprietaries, were or are entitled, either in law or equity, by virtue of any deed, patent, warrant or survey, of, in or to any part or portion of the lands comprised and contained within the limits of this state, or by virtue of any loca- tion filed in the Land-Office, at any time or times before the said fourth day of July, in the year of our Lord one thou- sand seven hundred and seventy-six, shall be, and they are hereby confirmed, rati- fied and established for ever, according to such estate or estates, rights or in- terests, and under such limitations and uses, as in and by the several and re- spective grants and conveyances thereof are directed and appointed. (Emphasis supplied) VIII. Provided also, and be it enacted, That all and every the private estates, lands and hereditaments, of any of the said Proprietaries, whereof they are now possessed, or to which they are now en- titled, in their private several right or capacity, by devise, purchase or de- scent; and likewise all the lands called and known by the name of the Proprietary Tenths or Manors, which were duly sur- 5f veyed, and returned into the Land-Office, on or before the fourth day of July, in the year of our Lord one thousand seven hundred and seventy-six, together with the quit or other rents, and arrearages of rents, reserved out of the said pro- prietary tenths or manors, or any part or parts thereof, which have been sold, be confirmed, ratified and established for ever, according to such estate or estates therein, and under such limitations, uses, and trusts, as in and by the several and respective reservations, grants and con- veyances thereof, are directed and appointed. Titles Confirmed ! 5 Smith, Laws Pa., provides: Under the proprietaries' government, no title was considered as good in law until a patent was granted and enrolled in the rolls office. See an extract from a commission of the commissioners of pro- perty in the preceding pages, as also others in the land-office. The reason is plain, because all war- ranties and applications were granted conditionally; which, if not complied with, the proprietaries or their commis- sioners, were at liberty, according to said conditions, to grant the land to others. After the revolution the legislature, by the act of the 27th of November, 1779, 6f confirmed the titles, claims, or demands, which had been derived from the proprie- taries or their officers, either in law or equity, “according to such estate, &c. as in and by the several and respective grants and conveyances thereof, ..c direc- ted and appointed." And by the act of the 9th of April, 1781, patents are direc- ted to issue to "all and every person or persons," &c. for lands for which no patents had been previously issued; pro- vided the party applied within a limited time, which time has been extended until the lst of January, 1811, after which time an additional interest is to be paid. By an act passed 30th of December, 1785, it was provided too, that no warrant should issue for any tract of land on which a settlement had been made, unless to such person or persons respectively, who had made the same, or their legal re- presentative, until after the 10th day of April, 1788. The benefit of this act to such settlers, has also been extended till the said lst of January, 1813, after which it will rest with the legislature to extend the provisions of said law, or make such farther regulations as they may deem necessary. A patent was a grant complete both in law and equity, and as such confirmed by the act of 1779, to the holder, unless some fraud had been practised in obtaining it, or the land had been previously grant- ed to some other person. These unpatented proprietary rights have, in many cases, been considered su- 7£ perior to rights acquired since the revo- lution; yet there are cases where equity would seem to ban such claims: that is, where an original applicant or warantee had not paid any purchase money or taxes, nor had ever taken possession of the land, or exercised acts of ownership on the same, and the person under the later right had done these things. In such cases it would be just to plead the original applicant's non-compliance, and the proprietaries' usages, as a bar to his recovery: and cer- tain it is, that the later right under the practice of the proprietary's land- office would have been preferred. Nor does the acts of assembly confirm pro- prietary rights otherwise than according to the estate vested by said rights agreeably to the usages; of course it would be necessary to :efer to original agreements, or the terms of warrants and applications, to know how to decide. The legislature having sanctioned such claims, cannot again interfere until after the lst of January, 1813, when they may again extend the time for payment, or make such other regulations as may be necessary, because after that time, persons claiming under proprietary rights will be in the power of the legislature, as much as they would have been in the power of the pro- prietaries, after they had failed to com- ply with the conditions, their warrants or applications were subject to. In testimony that the foregoing ex- tracts are correct, as stated, and that the notes subjoined are corresponding with the usages of the land-office, during the 8f proprietaries' government, to the best of my knowledge and belief, I have hereunto set may hand, at Harrisburgh, this 10th day of October, Anno Domini, 1812. JOHN COCHRAN, Secretary Land-Office,. N.Y.C. Admin. Code provides: § K51-26.0 Definitions; special pro- vision concerning acquisition of real estate used for public purposes.--The term real estate as used in this article shall be construed to signify and embrace all up- lands, lands under water, the waters of any lake, pond or stream, all water rights or privileges, and any and all easements and incorporated hereditaments and every estate, interest and right, legal and equitable, in land or water, including terms for years, and liens thereon by way of judgment, mortgages or otherwise, and also all claims for damage to such real estate. It shall also be construed to in- clude all real estate (as the term is above defined) heretofore or hereafter re- quired or used for railroad, highway or other public purposes, providing the per- sons or corporations owning such real estate or claiming interest therein, shall be allowed the perpetual use for such pur- poses of the same or of such other real estate to be acquired for the purposes of this article as will afford practicable route or location for such railroad, high- way or other public purpose, and in the case of a railroad, commensurate with and adapted to its needs; and provided also 9f that such persons or corporations shall not directly or indirectly be subject to ex- pense, loss or damage by reason of chang- ing such route or location, but that such expense, loss or damage shall be borne by the city. In case any real estate so acquired, or used for public purposes, is sought to be taken or affected for the pur- pose of this article there shall be designated upon the maps referred to in the previous sections of this article, and there shall be described in the petition, hereinbefore referred to, such portion of the other real estate shown on such maps and described in such petition, as it is proposed to substitute in place of the real estate then used for such railroad, highway or other public purposes. Pro- vided, that wherever the board of water supply has heretofore located on any map filed in the office of such commissions, a substituted route for any railroad, the same shall not be subsequently changed without the assent of such company. The supreme court at the special term to which the petition is presented or at such other special term as the consideration thereof may be adjourned to, shall either approve the substituted route or refer the same back to the board of water supply for al- teration or amendment and may refer the same back, with such directions or sugges~- tions as such court may deem advisable, and as often as necessary and until such commissioners shall determine such sub- stituted route as may be approved by the court. An appeal from any order made by such court at special term, under the pro- visions of this section, may be taken by any person or corporation interested in and 10f aggrieved thereby to the appellate division and court of appeals, and shall be heard as a non-enumerated motion. The commis- sioners of appraisal, hereinbefore referred to, in determining the compensation to be made to the persons or corporations owning such real estate, or claiming interest therein, shall include in the amount of such compensation such sum as shall be sufficient to defray the expenses of mak- ing such change of route and location and of building such railroad or highway. Such commissioners of appraisal shall suggest in their report, and the court in the order confirming such report shall determine, subject to review by the appel- late division, what reasonable time after payment of the awards to such persons or corporations shall be sufficient within which to complete the work of making such change. Neither the city, nor the board of water supply shall be entitled to take possession or interfere with the use of such real estate for the enumerated pur- poses, before the expiration of such time. Such time may be subsequently extended by the court (subject to review as aforesaid) upon a sufficient cause shown. After the expiration of this time so determined or extended no use shall be made of such real estate which shall cause pollution to the water in such reservoir or interfere with its flow. § K51-44.0 Damage to value of real property; businesses, and employees thereof.-- a. The owner of any real estate not taken by virtue of this article and arti- lif cle eleven o. the conservation law or of any established business on the first day of June, nineteen hundred five, except as hereinafter provided, and situate in the counties of Ulster, Albany or Greene, directly or indirectly decreased in value by reason of the acquiring of land by the city for an additional water supply or by reason of the execution of any pians for such additional water supply by the city under the provisions of this article and article eleven of the conservation law, their heirs, assigns or personal. repre- sentatives shall have a right to damages for such decrease in value. The owner of any real estate not taken by virtue of this article or of any established business on the first day of December, nineteen hun- dred fourteen, except as hereinafter pro- vided, situate in the counties of Ulster, Greene, Delaware or Schoharie, directly or indirectly decreased in value by reason of the acquisition, after the passage of this article, of land by the city for an additional water supply from the Scho- harie watershed, or by reason of the execu- tion of any plans for such additional water supply from such watershed, under the provisions of this article, his assigns or personal representatives, shall have a right to damages for such decrease in value. The owner of any real estate, not taken, situate in any one or more of the counties of Ulster, Delaware, Orange or Sullivan, or of any established business, directly or indirectly decreased in value by reason of the execution of any plans for or by the acquisition of land by the city for a water supply from the Rondout and Delaware water- sheds except that portion of the Delaware watershed of the west branch of the Dela- 12f ware river within such counties, or any of them, and the owner of any real estate, not taken, situate in any one or more of such counties or situate in the corporate limits of the village of Deposit in the county of Broome existing on the first day of April, nineteen hundred fifty-nine, or of any established business, which busi- ness was established on or prior to the first day of April, nineteen hundred fifty- nine, which is directly or indirectly de- creased in value by reason of the execu- tion of any plans for or by the acquisition of land by the city for a water supply from the watershed of the west branch of the Delaware river, pursuant to law, his or its assigns, or personal representatives in any such case shall have a right to dama- ges for such decrease in value, from the time of the beginning of such decrease in value, provided, however, that in the case of an established business, the recovery of or award made to any claimant shall not include any [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2005%3A2. Public record. Not legal advice.