Morris Canal & Banking Co. v. Townsend

| N.Y. Sup. Ct. | Jul 14, 1857

By the Court, S. B. Strong, P. J.

The plaintiffs are authorized by the statutes of the state of Mew Jersey to construct their canal to the line of this state bounding the county of Orange. They found it necessary, or at any rate convenient, for their operations, to construct a dam across the outlet of Long pond or Greenwood lake, which created a reservoir extending into, and crossing some of the lands of, that county. The legislature of this state, by an act passed on the 11th of April, 1855, (ch. 296,) authorized this court to appoint commissioners to ascertain and determine the compensation which ought justly to be made to the owners of the lands, for the taking of their real estate, in case the same should be taken, or for the injury which might have been or should be occasioned thereto by such reservoir, and provided that in the action and determination of the commissioners and the payment, tender or deposit of the compensation awarded by them, the said company should be vested with the title to the real estate taken, and all persons made parties to the proceedings should be divested and barred of all right in the lands taken, during the corporate existence of the company, and from all claim or demand on account of injury or damage to the real estate injuriously affected. Some of the lands to be taken or injuriously affected by establishing or continuing the reservoir, belong to the defendants. The company allege that they have offered to pay to these owners a reasonable compensation for their land, and damages, which such owners have refused to accept, and therefore the company have applied to this court for the appointment of commissioners to ascertain and determine the compensation to be made to the defendants for their lands and damages. This court, at special term, made an order for the appointment of such commissioners; from which the defendants have appealed. And they now contend that the order should be vacated and annulled, on the assumption that the act of our legislature is unconstitutional and void.

It is contended that our legislature cannot authorize a foreign corporation, located in another state, and subject to no power of visitation or control on the part of our functionaries, to take the lands in this state belonging to its citizens. There is certainly nothing in our constitution thus restricting the power of exercising the right of eminent domain. The objection must be urged on the allegation of incompatibility. But incompatibility with what? Certainly not with our ordinary practice. We have recognized the existence of foreign corporations in various ways, and granted .to them many privileges, in this state. We have laws to prevent the forgery of the bills of foreign banks. We authorize foreign insurance companies-to transact business in this state. Foreign corporations may institute, maintain and defend suits, in our state courts, and they do so. And we have authorized a rail road company of another state—the New York and New Haven Bail Boad Company—to extend their road into this state, and to acquire (compulsorily if need be) the title to, or the right to use, the lands of our citizens in the county of Westchester. So far as I have heard, none of the acts conferring such privileges, powers and rights have been deemed incompatible with our institutions, or the rights of our citizens, and therefore void. It might have been well, in the present instance, to have imposed some conditions which would have enabled our state legislature to control (of course indirectly) the general operations of the company, so as effectually to protect the interests of the people of this state. That was not done, probably from confidence in the good intentions of the directors, and a consciousness that it would be for their advantage to promote the welfare of all whose interests or necessities might prompt them to use the canal. We have not, of course, parted with the right to legislate as to the use of that part of the property of the company which shall be within our own borders. That, the legislature has not yielded, and could not, without despotism, yield to another state. In legislating as to the right to take private property for public purposes, it would not vitiate the law even if it should be remiss in providing fully for the interests of the people.. If such considerations should be allowed to defeat our statutes, I am apprehensive that many of them would fail.

It is objected that the operations of a corporation in another state, and conducted principally by inhabitants of that state, cannot be promotive of public good to our citizens, so as to authorize the assumption of their lands. But why not? A canal generally improves a country through its whole extent— quite as much at its terminus, though more remote from a market, as at any other point. We can easily see that it may benefit our people near the state line where it terminates. That is enough to feed the power, and to show that it has not been exercised under an illusory pretense. Whether our public will be essentially benefited was for our legislature to judge. The constitution confides the right to judge in that matter to that department, and not to the judiciary. In the case of Heyward v. The Mayor of New York, (3 Seld. 325,) Welles, J. in giving the opinion of the court, says, “Does it” (the right of eminent domain ) “ imply the right in the sovereign power to determine the time and occasion, and as to what particular property, it may be exercised ?' Most clearly it does, from the very essence and nature of the right. To deny it would be to abrogate and destroy it.”

As to the extent of the interest in the lands to be acquired by the company, that was exclusively for the consideration of the legislature. The right to take property to any extent, whether the full or entire title, or only an easement, is implied in the constitutional provision.

It was made a question, on the argument, whether the term “ property” in the constitutional provision, includes a right of action for injuries to land proposed to be taken, so that it could be included in the assessment of the commissioners without a violation of the right to a trial by a jury. I am inclined to think that in this case the trespasses upon the land are so directly connected with the main subject and with the now sanctioned act of taking it, that they may be included. It is a close question, I admit. But it cannot affect the main question, as to the right to acquire the land. That cannot be • obtained, under the act in question, without a full compensation to the owners, for their present loss. And if they are also to receive a compensation for .antecedent injuries without depriving them of their right of action, (by reason of an excess in the exercise of a constitutional power,) they cannot be injured.

[Orange General Term, July 14, 1857.

I think that none of the objections are well taken, and that the order should be affirmed, with $10 costs;

S. B. Strong, Birdseye and Emott, Justices.]