Opinion
November 12, 1919.
Charles N. Bulger [ Harry C. Mizen, Elisha B. Powell and George N. Burt of counsel], for the appellant.
Charles D. Newton, Attorney-General [ Edward J. Mone, Deputy Attorney-General, of counsel], for the respondent.
We are of opinion that the erection of the wall in the bed of the Oswego river by the State upon lands which it owned was not an "appropriation or use" of the claimant's property on the other side of the river within the meaning of those words as used in chapter 420 of the Laws of 1916 (amdg. Laws of 1915, chap. 640, § 1), although the effect was to narrow the channel of the river and at certain seasons of the year to so check the flow of the river as to set back the water in claimant's tailrace and upon its water wheels.
The form of the claim is for the actual damage resulting prior to the filing of the claim and not for permanent appropriation of the right to so divert the water upon claimant's property. Such being the nature of the claim, we think claimant was bound to comply with the provisions of section 264 of the Code of Civil Procedure by filing in the office of the clerk of the Court of Claims and with the Attorney-General written notice of intention to file a claim as therein specified in order to confer jurisdiction on the Court of Claims. ( Buckles v. State of New York, 221 N.Y. 418; Butterfield v. State of New York, Id. 701.)
The rule of these cases was not, we think, affected by the decision in Oswego Syracuse R.R. Co. v. State ( 226 N.Y. 351), as the claim in that case was for the permanent appropriation of claimant's property.
All concurred.
Judgment and order affirmed, with costs.