Turrell v. Norman , 19 Barb. 263 ( 1855 )

By the Court,

Johnson, P. J.

In the construction of every canal authorized by law, the canal commissioners are authorized and have power to enter on, and" take possession of and use all lands, the appropriation of which for the use of such canals shall in their judgment be necessary. (1 R. S. 220, § 16.) It was admitted upon the trial, by the plaintiff, that the injury complained of was committed by the defendants in prosecuting the work of constructing the enlarged Erie canal, under their contract of 29th December, 1851. It was proved, in addition, by the defendants,- that the enlarged canal had been surveyed and located upon the plaintiff’s premises, and the work was all done within the limits of the location, and was only the necessary work to be done in constructing a canal, and that the state engineers directed and superintended the work.

It is claimed, however, by the plaintiff, that inasmuch as the act of July 10,1851, under which the defendants contracted to perform the work on the section in which the plaintiff’s premises are embraced, has been declared unconstitutional and void by the court of dernier resort, the commissioners had no authority to appropriate the plaintiff’s premises, or any portion of them, for the construction of the enlarged canal; and that therefore the entry and excavation were wholly unauthorized and tortious. But the act of 1851 was not the sole authority for constructing the enlarged canal. The principal object of that act was to provide funds, and to insure a more speedy completion of the work than could be acomplished under the then existing laws. It did not repeal any former law upon that subject, nor did it take away any power or authority then vested in the canal board or any canal commissioner. At the time of the passage of that act the construction of the enlarged canal was provided for by law, and the whole surplus revenues of the state, after certain appropriations, were irrevocably pledged by the constitution to the completion of that with other specified public works. The case was therefore made out, which established the right of the commissioner to enter and take the plaintiff’s property for the use to which it was appropriated. It is of no sort of consequence to the plaintiff that the contract between the defendants and the people, under which the former were prosecuting the work, was not a valid contract. He had no interest in that contract, and its validity or invalidity did not in the least affect the question of the power of the canal commissioner to appropriate- the land. If the commissioner had the power to take the land, and had directed the entry upon it, the right to enter became fixed, and the people were bound to make compensation, and the defendants were not liable to respond to the plaintiff in an action, even though they could legally claim nothing for their labor under their contract. It cannot be necessary to cite the numerous acts of the legislature, from 1835 to 1851 inclusive, to show that the construction of' the enlarged canal was authorized by law, at the date of the passage of the act of 10th July, in the last named year.

[Monroe General Term, March 5, 1855.

Johnson, Wells and T. R. Strong, Justices.]

It was admitted, subject to objection, that the defendants acted under the verbal authority and direction of the acting canal commissioner having in charge the western division of the Erie canal enlargement, in addition to the contract before referred to. The location had been made on the plaintiff's premises, by the resolution of the canal board, before the contract was entered into. I see no objection to the proof of the facts made by the defendants. No objection seems to have been taken-to the form or character of the evidence. The moment the survey and location was adopted, and the entry made by the direction or under the authority of the canal commissioner having the general charge, the appropriation was complete; and although the title did not vest in the people until compensation made, or at least until the amount was ascertained and fixed in the mode prescribed, no action can be maintained by the owner for the injury. (Baker v. Johnson, 2 Hill, 342, and cases there cited.)

The defendants are, in my opinion, entitled to judgment.