APPEAL by the plaintiff, the Ontario Knitting Company, from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 26th day of September, 1910, dismissing the plaintiff's claim.
The Barge Canal Act, so called (Laws of 1903, chap. 147), in its 3d section designated the general route of the improved canals and directed the Superintendent of Public Works and the State Engineer to improve them in the manner indicated. (See, also, Id. § 3, as amd. by Laws of 1905, chap. 740, and Laws of 1907, chap. 710.) Section 4, as amended by chapter 365 of the Laws of 1906, provided: 'The State Engineer may enter upon, 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. An accurate survey and map of all such lands shall be made by the State Engineer, who shall 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 are to be filed in his office, and a duplicate certified by him filed in the office of the Superintendent of Public Works, which latter officer is to serve upon the owner a notice of the filing of the map, the survey and certificate in his office, and thereupon '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.' Section 6 required all work to be done by contract, and that the State Engineer divide the canal into sections, make maps, plans and specifications for the work to be done and the material furnished for each section, with a detailed estimate of the cost, and a statement thereof, with the maps, plans and specifications
when adopted by the Canal Board, shall be filed in his office and the office of the Superintendent of Public Works, and publicly exhibited to every person proposing or desiring to make a proposal for such work. It further provided: 'No alteration shall be made in any such map, plan or specification, or the plan of any work under contract during its progress, except with the consent and approval of the Superintendent of Public Works and the State Engineer, nor unless a description of such alteration and such approval be in writing and signed by the parties making the same and a copy thereof filed in the office of the State Engineer. No change of plan or specification which will increase the expense of any such work or create any claim against the State for damage arising therefrom shall be made unless a written statement, setting forth the object of the change, its character, amount and the expense thereof, is submitted to the Canal Board, and their assent thereto at a meeting when the State Engineer was present is obtained.' (See, also, Laws of 1907, chap. 394, amdg. said § 6.)
The Oswego canal, alongside the plaintiff's premises, had been laid out, surveyed and mapped, and work on the section embracing it had been contracted for, and the contractors were actually engaged in constructing the canal. Between the walls of the plaintiff's building and the old canal was a towpath which belonged to the State. The plan of the improved canal eliminated the towpath so that the wall of the canal would abut the wall of the plaintiff's building. The canal wall at this point was to be four and one-twelfth feet wide on the top. The original plan contemplated that the State should build an underpinning to the claimant's mill, three feet in width, to sustain and help support the mill, the canal and the canal wall, but before the plans were approved by the Superintendent of Public Works the underpinning wall was omitted from the plans and specifications, and it was, therefore, no part of the canal as laid out and approved. While the contractors were engaged in constructing this section of the canal according to the approved plans, a special Deputy State Engineer, on December 31, 1907, without the approval of the Canal Board or the Superintendent of Public Works, filed in the office of the State Engineer a map of the plaintiff's property, with a
certificate that the land had been permanently appropriated for the use of the canals of the State. The duplicates having been filed in the office of the Superintendent of Public Works, he, January 8, 1908, caused to be served upon the plaintiff a notice of the filing of the map, the survey and certificate in his office. April 15, 1908, the Superintendent of Public Works questioned the propriety of the appropriation, and April 30, 1908, the Canal Board adopted a resolution requesting the State Engineer to appropriate only so much of the claimant's property as was necessary to shore up the walls or to alter the plans of the canal by changing the alignment so as to make it unnecessary to appropriate any of the property, and thereafter the line of the canal was moved westerly, so that the claimant's land was not used or interfered with otherwise than by the mere filing of the map and notice above stated. The property alleged to have been appropriated was situated between the canal and a hydraulic canal, and its width averaged from forty to sixty feet, and it was nearly covered with large stone and wooden buildings, and was used as a knitting mill. Plaintiff alleges that immediately after the notice was filed it ceased taking orders for further business, although it continued to operate the mill for over a year thereafter. The claim filed in the Court of Claims states the damages at over $1,000,000. The evidence as to damages is not in the record, but it is stated that the claimant's evidence tended to show a damage of about $700,000 and interest, while the evidence of the State tended to show the damage as low as from $125,000 to $150,000.
The Court of Claims dismissed the claim, finding that the appropriation was unnecessary 'and was the result of the absence of the exercise of any judgment on the part of the State Engineer. * * * The State Engineer, in making the alleged appropriation, acted without the exercise of any judgment and acted arbitrarily and capriciously, and the attempted appropriation was wholly unauthorized and is illegal and void. * * * The State had the legal right to construct its canal adjacent to claimant's buildings without taking precautions to protect the buildings from falling so long as it did not encroach upon any part of claimant's property.'
Benjamin N. Cardozo, Charles N. Bulger and Udelle Bartlett, for the appellant.
Thomas Carmody, Attorney-General, Valentine Taylor and Joseph A. Kellogg, for the respondent.
'Private property cannot be taken for public use unless it is necessary for such public use, but all that is required of such officer or board in determining the necessity for taking private property is that they act in good faith and with sound discretion.' (People v. Fisher, 190 N.Y. 468, 477.)
The officer referred to in that case was the State Engineer who had permanently appropriated certain lands, and the court was asked to determine that a permanent appropriation was unnecessary as a temporary appropriation was sufficient. The court sustained the appropriation. It was apparent that the officer acted in good faith and there was at least reasonable basis for his action.
In the Appellate Division (116 A.D. 677, 686) the same conclusion was reached, the court saying: 'We do not decide that where an officer of the State assumes to take private property, ostensibly in the exercise of a discretionary power vested in him by the Legislature which clearly can be seen, under no circumstances and in no event, will be needed for public purposes, that courts may not intervene and determine contrary to the expressed judgment of such officer the question of the necessity for taking the same, and judicially declare such an assumption of authority nugatory.'
In every appropriation of private property for alleged public use the purpose of the appropriation, that is, whether it in fact involves a public use, is a question open to the courts for consideration, for unless there is a public use the act of appropriation is unwarranted. In this case the line of the canal was fixed, and the State Engineer was charged with the duty of examining into the facts and passing his judgment as to what property was necessary for canal purposes. He could not act arbitrarily, capriciously or without judgment, as ...