Lyon v. Jerome , 1 Lock. Rev. Cas. 54 ( 1799 )

On this ground the judgment was reversed, but the Chancellor who voted to reverse on this ground, added: “I have serious doubts also as to the constitutionality of the acts of the legislature under which the property of the plaintiff was taken, no provision having been made whereby the owner of the property might compel the payment of his damages, or ensure the compensation to which he was entitled.” After some remarks upon the law as it stood by the former canal acts, until a subsequent provision was made for such cases, by the Rev. Stat., he says: “ I held in Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 17, and am still of the same opinion, that before the state can enter upon and occupy, destroy or materially injure the private property of an individual, except in cases of actual necessity, which will not admit of delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation. No such provision being made in the act of 1847, nor in the act for the construction of the Oswego canal, I am inclined on this ground also to reverse the judgment.”

With this opinion Senator Verplanclt also declared himself inclined to concur, but thought it better not to express any opinion on the point, as the constitutional point had not been raised at the trial or in the Supreme Court, and objected to any judicial expression of opinion on that ground.

Judgment of Supreme Court reversed unanimously.