20 Johns. 103 | N.Y. Sup. Ct. | 1822
delivered the opinion of the Court.
The same objections which were urged against the defence set up in the Court below, have been made here, as grounds for the reversal of the judgment. The third section of the act of the 40th session, ch. 262, does not apply to this case, because, the plaintiff’s land has not been entered upon for the prosecution of the canal improvements intended by that section. For such objects it does not admit of a doubt, that the canal commissioners, and their agents, have a right to enter upon and occupy lands necessary to effectuate the objects of their appointment, without having first paid the loss and damage which the proprietor of the lands may sustain. It is true, that the fee simple of the land is'not vested in the people of the state, until the damages are appraised and paid ; but the authority to enter is absolute, and does not depend on the appraisal and payment; and that act provides fully for the payment of the loss and damage-sustained by any person, whose lands are taken for the purposes of the cañal. This case turns upon the construction of the 21st section of the act of the 13th of April, 1820, (sess. 43. ch. 202.) which provides, that in all cases in which it shall be deemed necessary by the principal engineer, inlaying out the line of the Erie or Champlain canals, to discontinue, or alter any part of a public road, or highway, on-account of its interfering with a proper location or construction of either of the canals, such engineer shalL.be authorized to make such discontinuance, or alteration; and upon his drawing up, in writing- and figures, a true description of all such parts of any public road, or highway, as he may discontinue and new lay, on the account aforesaid, and filing the same in the clerk’s office of the town in which such discontinuance and alteration may be situated, the same shall be lawful. The proviso requires the commissioners to open and work the newly laid road before the former is discontinued. With every disposition to uphold and justify the commissioners, and their agents, in the great and valúa
If we could surmount this difficulty, a more serious one presents itself. The act under consideration contains no provision to compensate, at any time, those whose lands
.We are bound, on both points, to declare that the judgment below is erroneous.
Judgment reversed.