305 FIFTEENTH ANNUAL REPORT OF THE 



Preserve counties but acquired by the State for canal purposes and secured 

 an affirmance of a judgment recovered for penalties for the taking and 

 destruction of timber upon the lands in question, the court holding that 

 the land constituted a part of the Forest Preserve of the State. 



In 1887, the State, by the erecting of a dam constructed upon Beaver 

 River, for the purpose of restoring to the Black River its natural supply of 

 water for industrial use, overflowed and appropriated 1,594.22 acres of 

 lands owned by Mary L. Fisher. A claim for damages was thereafter 

 filed by Mrs. Fisher for the permanent appropriation of the lands so over- 

 flowed with the Court of Claims, that court awarding Mrs. Fisher $9,970 

 thereon. 



In 1897, the Superintendent of Public Works, by reason of an increase 

 in the height of the Beaver River dam pursuant to chapter 469 of the 

 Laws of 1892, caused a right-angle survey to be made by which 2,754 

 additional acres required for the enlarged reservoir and surrounding it 

 were permanently appropriated, and for which Mrs. Fisher made claim and 

 was awarded and accepted $4,500 for the permanent appropriation thereof. 



In December, 1905, the agents of Mrs. Fisher entered upon that portion 

 of the 2,754 acres of land which lies between the flow line of said reservoir 

 and the line as described by the right-angle survey and cut 1,033 

 trees. 



Action was thereafter brought by the Department, under the 

 Forest, Fish and Game Law, to recover penalties and damages for the 

 trespass. 



The defendants contended that the State never obtained any title to 

 the lands from which the timber was cut and removed, and that if the 

 State did obtain any interest or title therein it was a permanent easement 

 only, which did not deprive the defendant Fisher from removing or author- 

 izing the removal of the trees therefrom. 



The case was referred to Frederick G. Fincke, Esq., who, after trial, 

 found for the plaintiff, and appeal by the defendants to the Appellate 

 Division resulted in affirmance of the judgment in favor of plaintiff by a 

 divided court. The judgment was unanimously affirmed by the Court of 

 Appeals upon opinion of Judge Chase, from which we quote the follow- 

 ing portion: 



