By chapter 32 of the Laws of 1833, entitled “ An аct for the construction of the Chenango Canal,” the canal commissioners were directed to “ proceed with all reasonable diligence to construct and complete a canal from Binghamton, in the county of Brоome, up the valley of the Chenango river to its head-waters and thence by the most advantageous route to thе Erie canal.” The Revised Statutes in force at that time provided that when any lands appropriated by the cаnal commissioners to the use of the public shall not be given or granted to the state, it shall be the duty of the canal аppraisers to make a just and equitable estimate and appraisement of the damages and benefits resulting to the persons interested in the premises so appropriated from the *313 construction of the work, for the purрose of making which such premises shall have been taken. (1 R. S. [8th ed.] 731, § 46.) According to a subsequent section “ the fee simplе of all premises so appropriated, in relation to which such estimate and appraisement shall havе been made and recorded, shall he vested in the people of this state.” (Id. § 52.)
Pursuant to the powers thus conferrеd the lands in question were appropriated, but the plaintiff insists that when the state takes the land in fee, even for a canal, the constitutional requirement as to just compensation can he satisfied only by a payment in money, as thе state may subsequently abandon the canal, sell the land to a stranger and thus deprive the owner both of the part tаken and also of the benefits to the remainder.
The weight of authority seems to be in favor of the proposition thаt where land is so taken by the state, or by one of its political divisions pursuant to its authority, fqr public use, the benefits may be sеt off not only against the damages to the remainder, but also against the value of the part taken. (Livi
ngston
v.
Mayor, etc.,
It may he, that, as according to the Constitution in force when this land was appropriated, the state had no power to sell or disрose of any of its canals, the fee could he taken without making pecuniary compensation, even if the • rule is otherwise in those cases where no restriction has been placed upon the power to sell. (Const. of 1821, аrt. 7, § 10.) The benefits conferred would thus he subject only to the right of the people to amend the Constitution, and all property interests are subject to that right, unless they are specially protected by the Federal Constitution, which, as it is well sеttled, has no application to the exercise of the power of eminent domain by a state.
(Withers
v.
Buckley,
20 How. [U. S.] 84;
Barron
v.
Mayor, etc.,
*314 We do not deem it necessary to now decide the interesting question raised by the plaintiff, as we have concluded that judgment must pаss against him upon another ground.
The statute under which the state acted in appropriating the land under considerаtion was either constitutional, or it was not. If it was constitutional, as no question is raised as to the regularity of procedure, clearly the fee was acquired. If it was unconstitutional, as the state entered under color of title and clаimed to own the fee pursuant to a statute, which declared that the fee simple of all the premises apрropriated should be vested in the people, the absolute title was acquired by adverse possession. Title tо land may be acquired by adverse possession, either by an individual
(Barnes
v.
Light,
116 FT. Y. 37), or by the state for the use of the public.
(Sherman
v. Kane,
The legislature had the power to determine what estаte should be taken, even if the public use was special and not necessarily permanent, and this court has refused to hold that a statute authorizing the talcing of a fee is invalid, or that an easement only was acquired thereunder, оn the ground that an easement only was required to accomplish the purpose in view.
(Sweet
v.
B. N. Y. & P. R. Co.,
The claim of the state, therefore, is to be measured by the nature of the statute under which it entered into possession and built the canal. As that stаtute purported to authorize the acquisition of no estate less than a fee, the state was in the position оf one claiming the fee, whether the statute was constitutional or not.
*315 Every act of tlxe state, through its agents, in construсtings maintaining and operating the canal over this land, being done under the authority of said statute, was an assertion of its сlaim, which, so far as appears, was never disputed until long after the period of limitation provided by law had .expired. (Code Civ. Pro. §§ 365-414; Code Pro. § 78; 2 R. S. [3d ed.] 293, 294.) Under these circumstances, we think that the title of the state became complеte through adverse possession, independent of the right actually acquired by the proceedings in condemnation.
By a change in the Constitution, which took effect January 1, 1875, the restriction upon the power of the legislature to. sеll the canals was removed as to the Chenango canal, among others, and, subsequently, acts were passed authorizing the sale thereof. (Const. art. 7, § 6 ; Laws of 1877, chap. 404; Laws of 1878, chap. 391; Laws of 1880, chap. 551.) Whether the state acquirеd the fee to the lands taken for said canal by condemnation or by adverse possession, its title did not revert. to thе original owners or their assigns upon the sale thereof, because it had the right to sell the same, or to dispose оf them in any .way that it chose, even if the effect was to lessen the value of the adjoining property, including that especially benefltted by the public improvement.
(Brooklyn Parle Comrs.
v. Armstrong,
The judgment should be affirmed, with costs.
All concur, except Follett, Ch. J., not sitting.
Judgment affirmed.