United States v. Dumplin Island

1 Barb. 24 | N.Y. Sup. Ct. | 1847

Edmonds, J.

I do not think there is any thing in the objection that these proceedings are to be instituted by, and in the name of the governor of this state. It is his duty to apply, as chief magistrate,- only when the land is wanted for the use .of the state. When land is wanted for the United States, and it becomes necessary to issue a writ of inquiry, the statute (2 R. S: 590, § 76,) provides that the like proceedings shall be had as those directed upon applications on behalf of-the state. The proceedings will be to all intents and purposes alike if the chief magistrate of the United States directs the proceedings to be instituted; and it is not necessary for .him to institute the proceedings personally. It is enough, if it is done in behalf of the United States, by officers authorized to act for the executive in the premises.

I see then no irregularity in the proceedings previous to the issuing of the writ ad quod damnum. But I confess I am not satisfied with the inquisition. When the proceedings are instituted for the state, § 73 of the statute' provides amply for the payment of damages and- all costs and- expenses incurred. So that the owner can be insured not merely the value of the land, but all costs and expenses to which he may be subjected, as well in procuring a proper valuation of his land, as in obtaining the money afterwards. But when the application is for the United States, no such provision is madeand unless those costs and expenses are included by the jury in their appraisal of the “damages,” the owner must pay them himself; and the assessment, if it is only of the value of the premises, would necessarily fall short of adequate remuneration to the owner. The difficulty in the case is, that I do not know, and cannot from the papers determine, whether the jury have taken this view of their duty or not. If they had, I should be more.likely to be satisfied with their appraisement.

But there would still be left another difficulty, and one which in this case would be somewhat material. The statute requires that the inquisition shall ascertain the names of the owners, their rights respectively, the amount to be paid, and to whom particularly.

The inquisition returns that the island is owned by William H. Winthrop, according to the best evidence furnished before the jury, and that the owner will sustain damage to the amount of $400: but it is entirely silent as to whom the money shall be paid, as required by the statute. If the inquisition had found that, the money should be paid to Mr. W., then under the 75th section of the statute, he might obtain his money on presenting a petition to the court. But now if this inquisition is confirmed, on Mr. W.’s presenting his petition for the money in court, there must necessarily be a reference to ascertain to whom it ought to be paid. The attorney general already asks for such a reference. The expense of the reference would necessarily be defrayed from the fund; and for aught that I see, the owner may be subjected to the expense of attending the appraisement, and of getting his pay afterwards; thus it would seem preventing the" award of the jury from being a just compensation to him, when the statute has been careful to provide that he shall be indemnified for the injury that he may sustain by reason of his lands being taken for the use of the public.

This inquisition must therefore be set aside,, and a new one taken to supply these defects.