Ontario Knitting Co. v. Skate

“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

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 (People v. Fisher, 116 App. Div. 677 -686, 101 N. Y. Supp. 1047 , 1053) 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 power nugatory.”

[1-3] 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 no such power is given to him. His power to condemn arises only from an exercise of a sane judgment and sound discretion, and it is evident there must be some basis for his judgment and discretion to rest upon. The property ought to be condemned must in fact be necessary, or at least so situated with reference to the canal work that there may be an honest difference of opinion among reasonable men as to its necessity. If we assume that the state engineer has filed a certificate appropriating a farm 10 miles away from the canal, and which under no circumstances could be available for canal purposes, the invalidity of his action would be apparent. A determination in good faith as to the necessity, and the exercise of a sound discretion with reference to property as to which there is some real basis for such determination, is a condition- precedent to his right to condemn. On the other hand, it may be conceded, if the appropriation in question was the result of a determination made in good faith that it was necessary, and there was a reasonable basis upon which such determination can rest, that the courts may not set up their judgment as to its necessity against the judgment of the state engineer. It is his judgment, and not the judgment of the court, that is made the condition precedent to the act.

It is clear that the claimant’s property was not required as a spoil bank or for convenience in making the canal, for the reason that it was substantially covered by large stone and brick buildings and was therefore impossible for that purpose. The state engineer did not give to the court the benefit of his evidence as to the good faith of the

The reasons given by him—and they are the only reasons furnished by the state engineer’s office—seem to be rather! excuses than reasons, and do not indicate in the light of all the evidence the good faith of the appropriation. It was not for the engineer, after the plans and specifications had been approved and the contract let, to change the plans providing for places for boats to tie up ip the use of the canal or to appropriate land which could not be used] for any purpose contemplated by the plans approved. I

No reasonable suggestion is made in the evidence that any particular use was to be made of this mill property, or |any part of it, and no suggestion why, if an underpinning of the mill was desired, that right was not obtained or the three feet condemned, j It" was stated that an underpinning to the mill was desirable, not that, any use was contemplated of the entire property. It is evident thajt the underpinning to the mill was as desirable to the claimant as to the state, and undoubtedly, if the claimant had understood that no favjors were to be granted, it would gladly have conceded without compensation the right to underpin the mill for its own safety and protection. The act of the special deputy, if valid, would have resulted, if the state had built the underpinning to plaintiff’s mill, in making the plaintiff’s foundation secure, at a conceded expense to the state of from $125,000 to $700,-000. The fact that the work on this section ofj the canal was being performéd at that time under a contract,' and that it was therefore impracticable to use these lands for canal purposes without the con

[4] The judgment may also be sustained upon the ground that the state engineer at the time he acted had no legal authority to make an appropriation. Section 6 of the act was intended as a check upon him so that, after contract let, the maps, plans, and specifications may not be altered without the approval of the superintendent of public works, and, if a proposed change would enhance the cost to the state or create a claim against it, the assent of the canal board must be had. It is apparent that, if this appropriation is sustained, the cost of this section of the canal must be enhanced from $125,000 to $700,000 for land damages, in addition to whatever it may cost to make any use of the property taken. It was impossible to build the canal in any other place or manner on the contracted section without the consent of the canal board. These lands could not be used for canal purposes without a change of plan and contract. The appropriation of additional land there for canal purposes could not be necessary and the state engineer had no power to make such appropriation. The work could only be done by contract, and the contractor was actually engaged upon the work. Plaintiff was chargeable with knowledge of the law that at that time no change in the plans could be made by the engineer acting alone. Whoever deals with a public -officer is charged with knowledge of his powers. If, as alleged, plaintiff stopped taking new orders in the mill upon the service of the notice, the loss must fill upon it, as it must Se assumed to have such knowledge of the facts as it would have learned on proper inquiry. If the special deputy acted without judgment, he was clearly not acting in the interest of the state. He evidently did not act involuntarily, but for a purpose, and no one could be benefited by that purpose but the plaintiff. If the map was filed as a matter of favor or otherwise to the plaintiff, it is not aggrieved. In any event, the evidence here does not put plaintiff in the place of a person who has been injured by the wrongful act of the state engineer. If it was not a party to the act, it is chargeable with knowledge of the law and the plain facts on which the officer acted. It was its duty, before making important commitments, to inquire as to the legal power of the officer and to ascertain the facts. At an early day the claimant knew that the state took the position that the alleged appropriation was unnecessary and ineffectual, and that the canal was actually being built without interfering' with the property. If the claimant has suffered loss, the inference is quite strong that it was willing to take the chances of loss in view of the

By abandoning its proprty with notice that the state repudiated the alleged appropriation and would not use the laud, it chose to stand upon its legal rights. It stands upon an order! made without power or right, and the judgment of the Court of Claiims is right upon the law and the facts and should be affirmed, with costs.

SEWEFF, J., concurs. HOUGHTON, J., on ground last stated. '

(dissenting). The Ontario Knitting Company claims damages for an alleged appropriation of its land for the purposes of the barge canal. Relief has been denied in th^ Court of Claims on the main ground that the appropriation was unnecessary and therefore unauthorized.

Prior to the construction of the barge canal, the claimant’s property abutted the blue lines of the Oswego Canal. Adjoining the claimant’s property was the towpath of that canal about 15' feet in breadth. On the other side of the claimant’s property was an hydraulic canal, so that claimant’s property at the place in question ¡varied in width from 40 to 60 feet. The original plans for the construction of the barge canal involved the elimination of this towpath and the building of the canal up plumb to the blue line or the foundation of the claimant’s mill. It also provided for the underpinning of ¡the claimant’s mill at points where the foundation of the mill did not go to solid rock. The canal board was informed by the Attorney General that there was no authority for entering upon the claimant’s land for the purpose of placing this underpinning thereupon without permission of the claimant. The contract for the construction of the canal at this point as actually made therefore left out the underpinning of claimant’s property. From the evidence it seems clear that this was omitted, not for the reason that it was unnecessary as a support to' the wall of the canal, but because of want of authority to I enter upon the land for that purpose and with the idea thereafter of making further plans for the strengthening of the wall of the canal¡ at that point. The testimony of Mr. Stevens, the superintendent of j public works, makes it clear that it was then understood, either that the wall must be strengthened at this point, or that the canal must be moved further to the west in order to leave sufficient room for a firm wall in the canal itself bej-ond the claimant’s property. It is found by the court below as a fact that upon April 30, 1909, after; the appropriation of claimant’s land, the canal board adopted a resolution requesting the

Before discussing the law which I deem applicable to this case, it may be well to advert to the imputation of bad faith upon the* part both of the claimant and the state engineer cast by the prevailing opinion, by insinuation perhaps more than by direct claim. In response to this, it may be well to note that no bad faith has been found by the trial court either on the part of the claimant or the state engineer; nor is any bad faith claimed on the part of either by the Attorney General in his brief; nor is there the slightest evidence of bad faith in the record before us. The claimant’s land has been taken without its consent, and all forms have been followed necessary to vest the title absolutely in the state. The course of the claimant in refusing to take orders after the formal appropriation by the state is claimed to evince an undue eagerness upon its part to sell its land to the state. If we consider a moment, however, it is apparent that the claimant could do nothing else. The title to its land had been taken by following the mode prescribed by the statute, which is made by the statute conclusive evidence of title in the state. With title divested and a lawsuit upon its hands for compensation, the credit of the company was neces

“Neither the canals as highways of commerce, noij other property owned by the state connected with the canals and actually essential to their operation and maintenance, shall be sold or leased.” Sweet v. City of Syracuse, 129 N. Y. 817 ( 27 N. E. 1081 , 29 N. E. 289 ).

It might well have been held that the state engineer was wiser than was the canal board in afterwards changing the alignment of the catial so as to render unnecessary the taking of any of this property. Moreover, this land might be used in various ways ir. connection with the

Whatever might have been the effect of collusion between the claimant and the state engineer, it seems to me clear that any bad faith on the part of the state engineer alone is wholly immaterial to this controversy. I have not overlooked the authority of People v. Fisher, 190 N. Y. 468 , 477, 83 N. E. 482 . But that was a case where the person whose, property was claimed to have been appropriated was contending that there was no lawful appropriation of the fee. In resisting the right of' the state to appropriate, the owner might well claim that the judgment of the state engineer should be exercised in good faith before it should authorize the taking of her property in invitum. Where, however, the owner of the estate does not resist the appropriation by the state, but simply claims damages for that appropriation, the state is estopped from denying the good faith of its constitutional officer in making that appropriation. Otherwise the owner of property would be at the mercy of the state, or rather of the state engineer, who could allege his own bad faith in case by a change of plans the property should afterwards become unnecessary for the purposes of the canal. The only question in this case upon which the right of the plaintiff must, it seems to me, depend, is whether the state engineer and superintendent had authority for any purpose to appropriate this land.

The authority of the state engineer to appropriate this land is found in section 4, c. 147, of the Laws of 1903. That statute provides:

“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.”

Under this statute the state engineer represents the sovereignty of the state. His appropriation, if made for the purposes authorized in the statute, is just as effective as would be the appropriation by specific act of the Legislature itself. He is a constitutional officer and within the limits of the instructions given him by the Legislature acts under constitutional as well as statutory authority. While the determination as to whether the purpose for which this land had been appropriated is a public purpose is a matter subject to review by the court, his determination of what land is necessary for that purpose is the determination of the sovereign state and is not subject to review by the courts. His reasons for making the appropriation are not the subject of judicial inquiry. In People v. Fisher, 116 App. Div. 677 , 101 N. Y. Supp. 1047 , in the prevailing opinion it is said:

“It is the general rule that the necessity for exercising the right of eminent domain is a question of political rather than of a judicial nature; that its determination rests with the Legislature, and the courts have no power to review it; and that the Legislature may delegate the power to public officers, whose determination is likewise conclusive upon the courts. Matter of Fowler, 53 N. Y. 60 ; People v. Smith, 21 N. Y. 595 . And so whether it will take the title in fee or simply acquire an easement is likewise a question of

that character. As was said by Judge Andrews in Sweet v. B., N. Y. & P. R. Co., 79 N. Y. 293 , 300: ‘When the statute authorizes the taking o£ a fee, it cannot be held invalid, or that an easement only was acquired by proceedings thereunder, on the ground that in the judgment of tne court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That is a legislative and not a judicial question.’ ”

In Matter of Fowler, 53 N. Y. 60 , it was held:

“As the Legislature may delegate the exercise of ¡the right of eminent domain to municipalities, to boards of officers, and to public agents, the necessity of an appropriation of lands by those upon whom this right is conferred cannot be inquired into by the courts. If the use to which the lands are to be put is public, the Legislature, or the instrumentality which it employs, is the sole judge of the necessity, unless there is a provision otherwise in the enactment.”

In Shoemaker v. United States, 147 U. S. 282 , 298, 13 Sup. Ct. 361 , 390 ( 37 L. Ed. 170 ), Shiras J., speaking for the Court said:

“The adjudicated cases likewise establish the proposition that, while the courts have power to determine whether the use faj: which private property is authorized by the Legislature to be taken is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only tó the restraint that just compensation must be made.” I

In Lynch v. Forbes, 161 Mass. 308 , 309, 37 N. E. 438 , 42 Am. St. Rep. 402 , the opinion reads:

“The plaintiff contends in both cases that the taking was unlawful, and at the trial of the case in trespass he offered to show Ithat, prior to the taking in question, the town had taken all the land that it needed, and that this was not suitable and was not necessary, useful, or proper for any of the purposes named in the acts under which it was taken. * * i* In the absence of any provision in the statutes submitting the matter to a court or jury, the decision of the question lies with the body or individuals to whom the state has delegated the authority to take. They have the same power as the state, acting through any regularly constituted authority, would have”—citing cases.

In City of Boston v. Talbot, 206 Mass. 82 , 91 N. E. 1014 , the state was building a subway. It condemned jnot only the land required for the tunnel itself, but also adjacent land, which would probably be injured, and did this in order to economize the expense of damage claims. The validity of the condemnation! was sustained. This case is very analogous to the case at bar, aijd the opinions of the learned justices writing therein go very far toward establishing the right of the state engineer to condemn the whole of this property, even though it be conceded that part only was ¡necessary for the purposes of the construction of the canal. It sanctions the condemnation of the whole property as economically made, las the taking of part would of necessity destroy the structures and the part not needed could be sold or leased or used for other purposes by the state. In the view I fake of this case, however, it is not necessary here to go to that extent. I

The authorities cited would seem to be sufficient to show that the question of the lack of necessity of these lands for the purposes of the canal upon which the judgment of the court below is based is a matter for the state itself alone to determine and is not a subject to

It is urged by the state that by a subsequent change in the line of the canal the taking of any of this property has been rendered unnecessary, and that this judgment of the Court of Claims in effect revests the title of the land in the' claimant. However plausible this argument may be, we cannot affirm this judgment upon this ground: First, because the law does not authorize the courts to revest title in any such indirect manner; and, secondly, as ■ a matter of equity, to so hold would deprive the claimant of his right of compensation for the injury to his business which naturally followed after the original appropriation by the state. If this property had once been lawfully appropriated, it can be returned to the claimant only under some statutory power which is here lacking. If there be any way in which the state can evade the payment of the price of condemnation by revesting the title of the land in the claimant, it certainly cannot be done by giving back any doubtful title or by any judgment of the court arbitrarily misconstruing the enactments of the Legislature.

Another contention on the part of the state to which reference should be made is that the power of the engineer is limited by section

We are thus brought to the final contention bn the part of the state, to wit, that the state engineer was at this time limited in his power to the appropriation of lands within the. blue line of the canal as first plotted. The minimum width of the prism bf the canal was to be 75 feet. There was no maximum width prescribed, nor were the powers of the state engineer in any way circumscribed in the laying out of the canal, except that in cities he was to make the width less than 45 feet only with the approval of the canal boaijd. By section 3 of the act referred to the route must be laid out by! the state engineer, and he was thereby “authorized and required to make such deviations therefrom as may be necessary or desirable ¡for bettering the alignment, reducing curvature, better placing of the structures and their approaches, securing better foundations or generally for any purpose tending to improve the canal and render its navigation safer and easier.” By section 4 he was authorized to appropriate lands for the use of the improved canal “and for the purposes of the work and improvement authorized by this act” which should in! his judgment be necessary. Under the contract for the construction of this part of the canal as it then existed the evidence overwhelmingly establishes that part at least of this land was necessary for the actúa! placing of the supporting walls to make firm, the foundation of the canal. It would seem to the extent of the land which was necessary for that purpose that the claim for damages is indisputable, and this conclusion alone would reverse the judgment. This land was just above a contemplated lock. Whether by reason of this fact this land was] necessary either in the use or construction of the canal was for the engineer to determine. In addition to that part of the land needed for ¡the actual placement of the supporting wall, how much was in his judgment needed for the purpose of the construction of this wall was Ijor the state engineer to determine. He has certified that all was needed and the claimant was foreclosed from asserting the contrary. After the claimant’s land has been taken in conformity with the statute after certification by the constitutional state officer that all was needed ¡for purposes for which he was authorized to appropriate the same, the Court of Claims had

BETTS, J., concurs.