BLACK RIV. REG. DIST. v. Adirondack League Club

Charles H. Tuttle, Warnick J. Kernan, John R. Brook and Sanford D. Stockton, Jr., for defendant. Kenneth W. Brett, Corporation Counsel, for City of Watertown. Lawrence R. Ormiston for Madeleine Bagley. Daniel Scanlon and Russell Wright for plaintiffs. Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Edward L. Ryan of counsel), appearing under section 71 of the Executive Law. M. Francis Malone for Oneida County Forest Preserve, Inc., amicus curiæ. Milo Kniffen for Adirondack Moose River Committee, Inc., and others, amici curiæ. Consideration will be given first to the contention that the plan of plaintiff board for the construction of the Panther Mountain dam and reservoir has been effectively and completely disposed of by the decision of the Court of Appeals in Adirondack League Club v. Board of Black Riv. Regulating Dist. (301 N.Y. 219, supra). Therein it was said (pp. 221-222): "These proceedings were commenced by petitioners against the Board of the Black River Regulating District (hereinafter called Board) to prohibit it from carrying out its proposed plan to take land to construct a reservoir and dam on the south branch of the Moose River (a tributary of the Black River) in Herkimer County, N. Y. It was estimated that the project would require the condemnation of approximately 3,500 acres of land belonging to the Adirondack League Club, one of the petitioners, and the use of 1,500 acres of State-owned land — part of the Adirondack State Forest Preserve. The petitioners challenged the constitutionality of article 7 of the Conservation Law, under which the Board proposed to act. The Appellate Division decided the issues presented in favor of the Board. The petitioners then appealed as of right to this court on the ground that a constitutional question was involved but before the oral argument, and on April 20, 1950, the so-called Stokes Act (L. 1950, ch. 803) became law. That act, effective immediately, provided: `* * * No reservoirs for the regulation of the flow of streams or for any other purpose except for municipal water supply shall be hereafter constructed in Hamilton or Herkimer counties on the south branch of the Moose river by any river regulating board.' Since the reservoir planned by the Board in the instant case, was concededly not `for municipal water supply' and since no construction had actually been commenced, the action on the part of the Legislature effectively and completely disposed of the Board's plan." (Emphasis supplied.) After declining to review the correctness of the Appellate Division's decision "to the same extent that it would have done if the Stokes Act had not been passed" and commenting on the board's suggestion that the act be declared unconstitutional, the court stated its decision as follows (p. 223):

"Since dismissal of the appeal would leave in effect the decision of the Appellate Division as a precedent and since we have not passed upon the merits of that decision, the proper practice here is to reverse the order of the Appellate Division and to remit the proceedings to Special Term with directions to dismiss the petitions, not on the merits, but solely upon the ground that the issues are moot. ( Wilmerding v. O'Dwyer, 297 N.Y. 664.)

"The orders should be reversed, without costs and the proceedings remitted to Special Term, with directions to dismiss the petitions solely upon the ground that the issues are moot."

It seems clear that when the petitions to review the final determination of the board were dismissed by Special Term, as directed by the opinion and remittitur, the final plan of the board directing construction of the reservoir was disposed of by implication of law as well as the language of the court. An examination of sections 453 and 454 of the Conservation Law discloses at once the fallacy of any other conclusion. After the board finally determines that the proposed reservoir shall be made it is required to make a final order, cause same to be filed and forthwith give notice thereof by publication (§ 453). Thereafter, any person or public corporation affected by the final determination may review the same by certiorari. Application for a certiorari order must be made within thirty days or the plans, maps, specifications, statements and estimates become the final and established ones of such reservoir. Section 454 further provides that upon such review the court may direct the modification of the final order. This procedure was followed in connection with the proposed construction of this reservoir. The Appellate Division confirmed the determination of the board (Matter of Adirondack League Club v. Board of Black Riv. Regulating Dist., 275 App. Div. 618, supra). Before argument of the appeal in the highest court the Stokes Act was passed with the resulting dismissal of the petition of the defendant in this action. If it may be said that the final determination and plan did not fall with such dismissal, the question naturally arises as to when, where and in what forum the defendant is to have its day in court as provided by section 454 of the Conservation Law and article 78 of the Civil Practice Act. The plaintiffs' answer, as taken from their brief, is "that if the Stokes Act is unconstitutional we may proceed to condemnation of the sole parcel of private lands needed, that owned by the Club (defendant). In that condemnation action the Club may raise all questions as to the necessity and validity of the proposed taking just as was done in the two precedent cases, the Stillwater Reservoir case where our board was plaintiff and the Sacandaga case involving the Hudson River Board. See 235 N.Y. 600 and 249 N.Y. 445, both condemnation cases." such real estate as may be necessary for the construction of the reservoir. The complaint in this action (par. 17) alleges the making of the determination and final order of plaintiff board after the required public hearing and the filing thereof in each required county clerk's office in November, 1948. The complaint contains no allegation of any further determination and final order as provided for in part V of article 7 of the Conservation Law. The documentary evidence and official records submitted upon this motion conclusively prove that the determination and final order made by the plaintiff board on November 11, 1948, became null and void upon the dismissal of the petition by this court pursuant to the direction of the Court of Appeals. In contemplation of law, no plan for the construction of a reservoir at Panther Mountain now exists and the plaintiff is not entitled to maintain condemnation proceedings against the defendant to acquire lands owned by it for construction of Panther Mountain Reservoir. This conclusion having been reached it follows that plaintiffs may not prosecute this action for the sole purpose of obtaining an advisory opinion as to the constitutionality of chapter 803 of the Laws of 1950 (Stokes Act) for there is no justiciable issue presented (cf. James v. Alderton Dock Yards, 256 N.Y. 298, 305; Reed v. Littleton, 249 App. Div. 310, 312). The individual plaintiffs have no legal capacity to test the constitutionality of the act (Bull v. Stichman, 273 App. Div. 311, affd. 298 N.Y. 516). The defendant is entitled to an order dismissing the complaint and granting summary judgment. The remaining motions are dismissed as they are now academic. Submit order.