4 Wend. 647 | N.Y. Sup. Ct. | 1830
By the Court,
The only question presented by this bill of exceptions is whether the “ act respecting navigable communications between the great western and northern lakes and the Atlantic ocean” is constitutional. The third section authorizes the canal commissioners, by themselves or their agents, “ to enter upon, take possession of and use all and singular any lands, waters and streams necessary for the prosecution of the improvements intended by this act, and to make all such canals, feeders dykes, locks, dams and other works and devices as they may think proper for making said improvements, doing “nevertheless no unnecessary damage ; ” and points out a mode of making compensation for- lands taken and appropriated for the purposes aforsaid,
These cases settle the right of the commissioners to enter upon private property and appropriate it to public use without being trespassers, which is all that is necessary to the defendants’ justification in this case ; and they seem to obviate the difficulty of the learned judge at the circuit. The language of the constitution is, “ Nor shall private property
In relation to our canals, the legislature have not been unmindful of their duty. According to the opinion of the chancellor in Jerome v. Ross, the commissioners had power, by the act of 1817, to pay in their discretion for materials or the temporary use of land. By subsequent acts, the legislature has made provision for payment of all claims of this nature. The means of compensation have been provided, and there is no provision in the constitution that compensation shall precede the appropriation of private property. The act of 1817 authorizes the entry upon and appropriation of any lands necessary for the purpose of constructing the canals : land includes every thing beneath and abovethe surface. The commissioners might take the whole, of course they might take part; they might take gravel for embankments, or stone or timber for any necessary purpose in the prosecution of the work. They are to make “all such canals, feeders, dykes, locks, dams and other works and devises as they may think proper.” They could not do all this without materials, and it might happen that the owners of materials most convenient might refuse to sell; were the commissioners then to stop their work, because the owners of stone and timber refused to sell ? Certainly not; they were to take them, “ doing neverthelesss no unnecessary damage.” The legislature knew that some damage must necessarily be done to the adjacent lands ; they must have contemplated the taking of materials and a temporary appropriation of land; otherwise such a caution was unnecessary; for in regard to the lands appropriated for the canals themselves, such lands were of course to be rendered useless for every purpose except for canals;, the contemplated necessary damage must, therefore be upon: other lands than those appropriated for the immediate track, of the canals.
The defendant is entitled to a new trial, costs to abide the event.