131 N.Y.S. 918 | N.Y. App. Div. | 1911
Lead Opinion
“ Private property cannot he taken for public use unless it is necessary for such public use, but all that is required of such officer or board in determining the necessity for taking private property is that they act in good faith and with sound discretion.” (People v. Fisher, 190 N. Y. 468, 477.)
The officer referred' to in that case was the State Engineer who had permanently appropriated certain lands, and the court was . asked to determine that a permanent appropriation was unnecessary as a temporary appropriation was sufficient. The court sustained the appropriation. It was apparent that the officer acted in'good faith and there was at least reasonable ’basis for his action.
In the Appellate. Division (116 App. Div. 677, 686) the same conclusion was reached, the court saying: “We do not decide that where an officer of the State assumes to take private property, ostensibly in the exercise of a discretionary power vested in him by the Legislature which clearly can be seen, under no circumstances and in no event, will be' needed for public purposes, that courts may not intervene and determine contrary to the expressed judgment of such officer the question of the necessity for taking the same, and judicially declare such' an assumption of authority nugatory. ”
In every appropriation of private property for alleged public use the .purpose of the appropriation, that is, whether it in fact involves a public use, is a question open to the courts for consideration, for unless there is- a public use the act of appropriation is unwarranted. In this case the line of the canal was fixed, and the State Engineer- was charged with the duty of examining into the facts and passing his judgment as to what property was necessary for canal purposes. He could not act arbitrarily,, capriciously or without judgment, as rib such power is given to .him. His power to condemn arises only from an exercise of a sane judgment and sound discretion, and it is evi
It is clear that the claimant’s property was not required as a spoil bank or for convenience in making the canal, for the reason that it was substantially covered by large stone and brick buildings and was, therefore, impossible for that purpose. The State Engineer did not give to the court the benefit of his evidence as to the good faith of the appropriation, and the special deputy, who was sworn as a witness, falls far short of showing that the appropriation was made in good faith or was even deemed necessary. The appropriation map was served January 8, 1908. April 15, 1908, the Superintendent of Public Works questioned the propriety of the appropriation and asked the State Engineer with reference to it. No answer was ever directly given to the Superintendent but a communication from the special deputy to the State Engineer was furnished to the Attorney-General April 21, 1908, in which he indicates the propriety of the appropriation on the ground that the canal wall was not of sufficient strength to hold the water in the canal without a lateral pressure against the walls of the building and “if at any time there should be any excavation made on the
The reasons given by him, and they are the only reasons furnished by the State Engineer’s office, seem to be rather excuses than reasons, and do not indicate in the light of all the evidence the good faith of the appropriation. It was not for the State Engineer, after the plans and specifications had been approved and the contract let, to change the plans providing for places for boats to tie up in the use of the canal or to appropriate land .which could not be used for' any purpose contemplated by the plans approved.
No reasonable suggestion is made in the evidence that any particular use was to be made of this mill property or any part of it, and no suggestion why if an underpinning of the mill was desired that right was not obtained or the three feet condemned. It was stated that an underpinning to the mill was desirable, not that any use was contemplated of the entire property. It is evident that the underpinning to the mill was as •desirable to the claimant as to the State, and undoubtedly if the claimant had understood that no favors were to be granted it would gladly have conceded without compensation the right to underpin the mill for its own safety and protection. The act of the special deputy, if valid, would have resulted, if the State had built the underpinning to plaintiffs mill, in making the plaintiff’s foundation secure, at a conceded expense to the State of from $125,000 to $700,000. The fact that the work on
The judgment may also be sustained upon the ground that the State Engineer at the time he acted had no legal authority to make an appropriation. Section 6 of the act was intended as a check upon him so that, after contract let, the maps, plans and specifications may not be altered without the approval of the Superintendent of Public Works, and if a proposed change would enhance the cost to the State or create a claim against it, the assent of the Canal Board must be had. It is apparent that if this appropriation is sustained the cost of this section of the canal must be enhanced from $125,000 to $700,000 for land damages, in addition to whatever it may cost to make any use of the property taken. It was impossible to build the canal in any other place or manner on the contracted section without the consent of the Canal Board. These lands could not be used for canal purposes without a change of plan and contract; the appropriation of additional land there for canal purposes could not be necessary and the State Engineer had no power to make such appropriation. The work could only be done by contract and the contractor was actually engaged upon the work. Plaintiff was chargeable with knowledge of the law that at that time no change in the plans could be made by the State Engineer acting alone Whoever deals with a public officer is charged with knowledge of his powers. If, as alleged, plaintiff stopped taking new orders in the mill upon
Sewell, J., concurred; Houghton, J., concurred on ground last stated; Smith, P. J., dissented in opinion in which Betts, J., concurred.
Dissenting Opinion
The Ontario Knitting Company claims damages for an alleged appropriation of its land for the purposes of the barge canal. Relief has been denied in the Court of Claims on the main ground that the appropriation was unnecessary and, therefore, unauthorized.
Prior to the construction of the barge canal the claimant’s property abutted the blue lines of the Oswego canal. Adjoining the claimant’s property was the towpath of that canal, about fifteen feet in breadth. On the other side of the claimant’s property was an hydraulic canal, so .that claimant’s property at the place in question varied in width from forty to sixty feet. The original plans for the construction of the barge canal involved the elimination of this towpath and the building of the canal up plumb to the blue fine or the foundation of the claimant’s mill. It also provided for the underpinning of the claimant’s mill at points where the foundation of the mill did not go to solid rock. The Canal Board was informed by the, Attorney-General that there was no authority for entering upon the claimant’s land for the purpose of placing this underpinning thereupon without permission of the claimant. The contract for the construction of the canal at this point, as actually made, therefore, left out the underpinning of claimant’s property. From the evidence it seems clear that this was omitted, not for the reason that it was unnecessary as a support to the wall of the canal, but because of want of authority to enter upon the land for that purpose and with the idea thereafter of making further plans for the strengthening of the wall of the .canal at that point. The testimony of Mr. Stevens, the Superintendent of Public Works, makes it clear that it was then understood either that the wall must be strengthened at this point or that the canal must be moved further to the west in order to leave sufficient room for a firm wall in the canal itself beyond the claimant’s property. It is found by the court below as a fact that upon April 30, 1908, after the appropriation of claimant’s land, the Canal Board adopted a resolution requesting the State Engineer to appropriate only so much of claimant’s property as was necessary to shore up the walls or alter the plans of the canal by changing the
Before discussing the law which I deem applicable to this case it may be well to. advert to the imputation of bad faith upon the part both of the claimant and the State Engineer cast by the prevailing opinion, by insinuation perhaps more
Whatever might have been the effect of collusion between the claimant and the State. Engineer, it seems to me clear that
The authority of the State Engineer to appropriate this land is found in section 4 of chapter 147 of the Laws.of 1903 (as amd. by Laws of 1906, chap. 365). That statute provides: “The State Engineer may enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary.” Under this statute the State Engineer represents the sovereignty of the State. His appropriation, if made for the purposes authorized in the statute, is just as effective as would be the appropriation by specific act of the Legislature itself. He is a constitutional officer and within the limits of the instructions given him by the Legislature acts under constitutional as well as statutory authority. While the determination as to whether the purpose for which this land had been appropriated is a public purpose is a matter subject to review by the court, his determination of what land is necessary for that purpose is the determi
The authorities cited would seem to be sufficient to show that the question of the lack of necessity of these lands for the purposes of the canal upon which the judgment of the court below is based is a matter for the State itself alone to determine and is not subject to review by the.court. This rule of law has thus been held under the authorities cited as against the protest of the landowner that his constitutional right has been invaded by the taking of his property. If under his protest authority therefor can be found a fortiori where the State has assumed to appropriate the land and the property owner without questioning the right of appropriation is seeking to recover damages therefor, it does not lie with the State to say that although the
It is urged by the State that by a subsequent change in the line of the canal the taking of any of this property has been rendered unnecessary, and that this judgment of the Court of Claims in effect revests the title of the land in the claimant. However plausible this argument may be, we cannot affirm this judgment upon this ground, first, because the law does not authorize the courts to revest title in any such indirect manner, and, secondly, as a matter of equity, to so hold would
Another contention on the part of the State to which reference should be made is that the power of the State Engineer is limited by section 6 of the act referred to, so that this appropriation could only be made with the consent of the Canal Board. As I read the statute, however, the appropriation of lands for the purposes of the canal or of the work of improvement thereof is authorized by section 4, and the alteration of contracts referred to in section 6 as requiring the consent of the Canal Board is simply the alteration of contracts for work upon the canal. (See, also, § 6, as amd. by Laws of 1907, chap. 394; since amd. by Laws of 1911, chap. 736.) The appropriation of lands for the purposes of the canal or of the work to be done thereupon at any stage in the proceedings was vested in the State Engineer alone until the act was amended subsequent to the appropriation of the- land in question. The evident purpose of section 6 is to prevent frauds by authorizing the enlargement of contracts to favorites after the contract had once been assigned through competition. The taking of this land does not in any way alter the construction contract. The necessary sustaining wall may be built by a new contract with some other contractor. No alteration of any contract is in any way involved.
We are thus brought to the final contention on the part of the State, to Wit: That the State Engineer was at this time limited in his power to the appropriation of lands within the blue line of the canal as first plotted. The minimum width of the prism of the canal was to be seventy-five feet. There was no maximum width prescribed, nor were the powers of the State Engineer in any way circumscribed in the laying out of
Betts, J., concurred.
Judgment affirmed, with costs.