Rexford v. Knight, 15 Barb. 627

Rexford v. Knight

15 Barb. 627 | N.Y. Sup. Ct. | 1852

By the Court, Willard, P. J.

The testimony shows that the premises sought to be recovered, were taken and appro? printed prior to 1822, for the Erie canal. A claim for damages was made by the former owner of the land, which was acted upon by the appraisers, and they decided that the benefits and advantages arising from the canal were equal to the loss and damage sustained by the claimant. This award was probably made prior to 1825. This adjudication had the same effect in passing the title to the state, as the award of damages followed up by the payment thereof to the claimant. (Laxos of 1817, p. 303, *641ch. 262, §3; 1R.8. 226, §S 50,53.) If the benefits equal or exceed the damages, the claim is extinguished the moment it is created.

It is contended by the plaintiffs that nothing short of a payment in money will pass the title, under our statutes. The case in Kentucky is "the only one which supports this doctrine. It has been invariably held otherwise in this state, except in a single instance, viz. The People v. Mayor of Brooklyn. (6 Barb. 209,) which was overruled by the unanimous opinion of the court of appeals, in The People v. Mayor of Brooklyn. (4 Comst. 419.) The learned and elaborate opinion of Judge Buggies in that ease, places the constitutionality of setting off benefits against damages upon an impregnable basis.

The map of the canals, made under the direction of the canal commissioners, in pursuance of the statute, (1 R. S. 218, §§ 4, et seq.) affords presumptive evidence of the actual appropriation of the premises therein described, by the state, for the purposes of the canal. A transcript from the original map, or from a copy certified as correct, by the officer with whom such map or copy shall be filed, is made presumptive evidence in all judicial proceedings. {Id. § 7.) The objection was not taken to the form of authentication in this case, but merely “ to its being evidence of the title or possession of the state? This question was reserved by the learned judge. The omission of the proper certificate was not insisted on; and if it had been, could have been obviated. The omission should be disregarded now. The map affords evidence of the appropriation of the premises in question to the purposes of the canal. The object of causing the canals to be surveyed and their boundaries marked on a map was to furnish evidence of the exact quantity of lands, by metes and bounds, appropriated for that purpose. The map alone does not vest the title in the state. It merely describes what the state has taken. It was therefore properly received in evidence. {Laws of 1887, p. 281, § 6. 1R. 8.581.) And like a record it afforded evidence that all the antecedent steps had been taken by the canal commissioners.

There was sufficient evidence in the case, of an estimate and appraisment of the damages. The statute which required the appraisers to make regular entries of their determination and *642appraisal, with an apt and sufficient description of the several premises appropriated for the canals, in a book or books to be provided and kept by the canal commissioners, and to certify and sign their names to such entries and appraisal, and in like manner to certify their determination as to those several premises which will suffer no damages or will be benefited more . than injured by or in consequence of the works aforesaid, is merely directory. ' (Laws of 1817, p. 303, § 3. 1 R. S. 226.) The omission of the canal commissioners to keep such books, or of the appraisers to make such entries, does not impair the title of the state, however much it may weaken the evidence by which the title is proved..' The title of the state rests on the appropriation of the land, under the statutes authorizing the construction of the canals, followed up by the appraisal and payment of the damages, or the adjudication by the proper board of appraisal that the benefits equal the damages. The title which the state takes is not a mere easement, but an estate in fee. This is expressly asserted in the act entitled “ an act respecting navigable communication betweeen the great western and northern lakes and the Atlantic ocean,” passed April 15, 1817. (Laws of 1817, p. 303, § 3.) It says, “ the fee simple of the premises so appropriated, shall be vested in the people of this state.” This was the first efficient statute under which our great system of internal improvements was commenced. It authorized the commencement of the canals between the Mohawk and Seneca rivers, and Lake Champlain and the Hudson. The act of April, 1819, (Laws of 1819, p. 123,) directed the continuation of the same canals from the Seneca river to Lake Erie, and from the point on the Mohawk where the middle section of the canal terminated, to the Hudson river, and it adored all the provisions of the 3d section of the -act of 1817, as to the powers of the canal commissioners to enter upon and take possession of the lands, waters, <fcc. the mode of estimating and appraising damages and the payment of damages, &c. Statutes in pari materia must be construed with reference to each other. This statute was not only upon the same subject matter, but related to the same identical work, which was to be contin*643ued and completed by the same officers under which the central part of it was commenced. There can be no doubt that the state became seised of the same estate in the lands taken under the act of 1819, as in those appropriated by the act of 1817^ Such has been the general understanding of the law. The revised statutes (1 R. R. 220, § 49,) in ch. 9, part 1, title 9, "which was passed in December, 1827, speaking of the premises that shall have been appropriated- to the use of a canal, at any time before that chapter should be in force, after limiting the presentation of claims for damages to one year from the time that chapter should become a law, says, “ the premises so appropriated shall be deemed the property of the stateand in . the 52d section of the same aticle it is expressly enacted that the fee simple of all premises so appropriated shall be vested in the people of this state. The constitution of 1821, art. 7, § 10, after forbidding the legislature from selling the canals, or any part or section thereof, declares that the same shall be and remain the property of the state. And the constitution of 1846, art. 7, § 6, affirms the same doctrine more strongly, thus ; “ The legislature shall not sell, lease or otherwise dispose of the canals of the state, but they shall remain the property of the state, and under its management forever.”

[Warren General Term, May 3, 1852.

Willard, Hand, Cady and C. L. AlUri, Justices.]

The construction of the courts has been that the state takes the fee simple in the lands appropriated for the canal, and that the fee vests on payment of the damages. (Baker v. Johnson, 2 Hill, 342, 348. The People v. Hayden, 6 Id. 359.)

If the state has the fee simple of the land in question, the plaintiff was rightly nonsuited, and it is unnecessary to discuss or consider the other questions. It is only on the principle that the state took merely an easement, that the plaintiff has any pretense for asserting that the right of the state has ceased. z

Being of the opinion that the title is still in the state in fee, the motion for a new trial must be denied.