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MTR NIAGARA MOHAWK v. PSC

101 A.D.2d 369 (1984)

In the Matter of Niagara Mohawk Power Corporation, Petitioner, v. Public Service Commission, Respondent

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 10, 1984

Attorney(s) appearing for the Case

LeBoeuf, Lamb, Leiby & MacRae (Samuel M. Sugden, Halcyon G. Skinner, Bruce V. Miller and Nancy I. Ruskin of counsel), for petitioner.

David E. Blabey (Howard J. Read of counsel), for respondent.

WEISS and LEVINE, JJ., concur with MAHONEY, P. J.; KANE and CASEY, JJ., dissent and vote to confirm the determination of the Public Service Commission.

MAHONEY, P. J.

During the period 1881 through 1961, petitioner and its predecessors operated hydroelectric plants on the Niagara River pursuant to a license from the Federal Power Commission. Under New York law, petitioner's right to divert water (along with its obligation to return the water) was a recognized property right known as a corporeal hereditament (see Federal Power Comm. v Niagara Mohawk Power...

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