102 N.Y.S. 190 | N.Y. App. Div. | 1907
Chapter 147 of the Laws of 1903 makes provision for the improvement of the Erie canal. -This improvement contemplates in some places a variation from the line of the canal as it now exists requiring the appropriation of new and additional land. By section 4 of that act it is provided that the State Engineer may enter upon and 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.” He is required to make an accurate survey and map of all such lands and annex thereto his certificate that the lands therein described have been appropriated for the use of the canals of'the State. Such map, survey and certificate must be filed, in the oifice of the State Engineer and a duplicate copy thereof filed in the office of the Superintendent of Public Works. The Superintendent of Public Works is thereupon required to serve upon the owner of any real property so appropriated a notice of the filing and the date of filing of such map, survey and certificate in his office, which notice shall also specifically describe that portion of such real estate belonging to such owner which has been so appropriated. It is further provided: “ From the time of the service of such notice, the entry upon and the appropriation by the State of the real property therein described for the purposes of the work and improvement provided for by this act, shall be deemed complete, and such notice so served shall be conclusive evidence of such entry and appropriation and of the quantity and boundaries of the lands appropriated. * * * The Court of Claims shall have jurisdiction to determine the amount of compensation for lands, structures and waters so appropriated.” By section 13 of the act the sum of $10,000,000 is appropriated to be'paid upon the presentation of the draft of the Superintendent of Public Works for work done upon the contracts, “ or on the presentation of awards by the Court of Claims for compensation for lands appropriated, as provided in' section four of this act, or damages caused by the work of improvement, hereby authorized.” Chapter 335 of the Laws of 1904 provides for the appointment of three special examiners and appraisers, whose duty it shall be to agree, if possible, with the owners “ of such lands, structures and waters or property rights pertaining
In Van Alstine v. Belden (41 App. Div. 123) it is held: “ Where a contractor, engaged in improving the Erie canal under á contract with the State of New York, piles earth upon private land adjacent to the canal, which the State has taken no proceedings to appropriate, the.contractor, and not the State, is liable for the trespass.” In that case is construed section 70 of chapter 338 of the Laws of 1894, which is precisely similar as to' the mode of acquiring property as the act here in question. The opinion in part reads: “ This brief epitome of two or three of the several enactments relating to the accession of lands for canal purposes, shows the trend of the Legislature has been to place in definite, systematic shape the method to be pursued in making the appropriation. In the first place, the power was vested in the Canal Commissioners, without any restriction as to the form in which they exercised that power. Their ipse dixit seemed to be -all that was essential. Later, in the development of the method of acquiring these lands, the Legislature required the making of a survey and the filing of a map of the' lands to be appropriated and the service of a notice containing a description of .them upon the owner or occupant, as a prerequisite to the appropriation of the lands. . This, method relieved the State from liability arising from the acts of irresponsible contractors and assumed agents,, and assured the owner the State was to award compensation for the lands' taken. The drift of this legislation is to fix liability upon the State when these preliminaries have been accomplished. (Hayden v. The State, 132 N. Y. 533 ; Yaw v. The State, 127 id. 190; City of Syracuse v. Stacey, 86 Hun, 441; Waller v. The State, 144 N. Y. 579 ; Matter of St. L. & A. R. R. Co., 133 id. 270.) ” The judgment of the Appellate Division in that case was affirmed in the Court of Appeals upon the opinion from which quotation is made. (161 N. Y. 661.) It would seem, therefore, that any entry upon the lands upon the street 'without the filing of the map, survey and certificate required by the statute and notice to the owner would be as to such owner a trespass for which the State would not in any way be liable, and for which the. contractor wrongfully entering upon such land could alone be held liable. It is urged by the respondents here that this action is not brought by the owner of the
•All concurred; Parker, P. J., not voting, not being a member of this court at the timé this decision was handed down/
' Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to answer upon payment of costs of demurrer and. of this appeal.