New York Central & Hudson River Railroad v. State

In April, 1894, the appellant, as lessee of the Mohawk & Malone Railway Company, operated a railroad which crossed Black river some two or three miles southeasterly of the village of Forestport. At the crossing, the river was the boundary between the towns of Remsen and Forestport, in the county of Oneida. The valley of the river at this point in the town of Remsen was about 1,000 feet wide, and the railroad track was carried across upon an embankment from 35 to 48 feet in height. The embankment was finished in December, 1891, and thereafter it was used for railroad purposes. The land occupied by the embankment was a part of the farm of John S. Kent, from whom the predecessors of the appellant acquired title by contract dated June 4, 1891, and subsequent deed October 9, 1891. The work was commenced by consent of Kent a short time prior to the making of the contract. A map of the route and profile was filed in Oneida county clerk’s office on December 7, 1891. In the construction of the Black River Canal and Erie Canal feeder, under chapter 157 of the Laws of 1836 and subsequent acts, a dam had been built across Black river, near Forestport, in or prior to 1848. This operated to produce the Forestport Pond, so called, from which the waters of Black river were conducted into the Erie Canal feeder. In 1884, at the head of the flow of the Forestport Pond, and in pursuance of chapter 452 of the Laws of 1883, a new dam was commenced, or work done in reference thereto, with a view of obtaining further storage of water for canal purposes. This dam was completed in the summer. or fall of 1893, and, when fully in use, operated to set back the water to the depth of about 13 feet, in the valley across which the

Upon the part of the state it is claimed that the state had in fact appropriated the land in question for the purpose of its reservoir before the appellant or its predecessor in interest acquired title from Kent. The project of the construction of a reservoir at the head of the Forestport Pond had been a matter of public interest for several years. By chapter 475 of the Laws of 1881 (page 643) provision was made for “survey of flow and line on Black river above Forest port Pond,” the work to be done under the direction of the state engineer and surveyor. Thereupon, in the fall of 1881, Mr. Phelps, an engineer and surveyor in the employ of the state, ran the flow line of a supposed dam that would be 21 feet above the old dam at Forestport, and would be located at or near the place where the dam was afterwards located. He followed the contour of the ground on the same level, embracing all the ground that would be flowed, setting up stakes about two chains apart, and marking the line of trees. It was then timber land most of the way. The stakes were marked with the course and distance and the number of the station. They did n.ot indicate wliat they -were there for except that a survey had been made. From the notes made by the surveyor a map was made, called “Map of Proposed Reservoir ” and filed in the engineer’s office. The flowed ground, as indicated on this map, includes the embankment and valley in question. In 1883 an act was passed by the legislature (chapter 452), by which the superintendent of public works was authorized and directed to construct or cause to be constructed a reservoir on the Black river above Forest-port Pond, for the purpose of storing water for canal purposes, at an expense not to exceed $20,000. That amount was appropriated for that purpose. Thereupon, in the summer or fall of 1884, the site for the dam, being the present site, was fixed by the state engineer and the superintendent of public works. Some work was done and mate

The foregoing statement presents the more important circumstances in this case, from which it is to be determined whether or not, on the 4th June, 1891, there had been accomplished, on the part of the state, an appropriation of the land in question.

In Waller v. State, 144 N. Y. 579 , 39 N. E. 680 , the rule was laid down that mere words of appropriation, unaccompanied by any act on the part of the officers of the state towards carrying such appropriation into execution and taking possession of or controlling in some form the property which is to be appropriated, cannot amount to an actual and complete appropriation. In Benedict v. State, 120 N. Y. 228 , 24 N. E. 314 , which related to the overflow of plaintiff’s lands, caused by a permanent dam erected across Black river for canal purposes, it was held that the land was appropriated when the dam was completed, and the water in the river raised, and that the statute of limitations against the plaintiff’s claim for damages commenced to run from that time. A similar rule is laid down in Mills, Em. Dom. § 310, citing Call v. Commissioners, 2 Bray, 232. At the time of the conveyance by Kent nothing had been done by the state to interfere with or control his possession and use. A flow line of a proposed dam had been run some 10 years before, and intermittent efforts towards building a dam had been going on. No notice of appropriation had then been served on Kent, and I fail to. see how, within the rule of the Waller Case, Kent at that time had any claim for damages against the state for any taking of his land. The filing of a map alone did not accomplish that result. Ten Broeck v. Sherrill, 71 N. Y. 276 , 279. The maps that are presumptive evidence of appropriation under section 6 of chapter 451 of the Laws of 1837 are maps of completed canals. Section 4, art. 1, c. 9, pt. 1, Rev. St.; 1 Rev. St. (8th Ed.) p. 692. By chapter 336 of the Laws of 1884, amended by chapter 118 of 1888, it was provided that in the construction or improvement of any canal or feeder whereby the superintendent of public works shall appropriate private lands or waters the superintendent shall serve upon the owners and occupants a written or printed notice of such appropriation containing an apt and sufficient description of the lands or waters appropriated. Provision was made for recording the notice with proof of service thereof on the owners or occupants in the clerk’s office of the county where the lands were situated, and the owner had two years from the time of such service within which to file his claim for compensation. The hotice which was served in this case by the superintendent in accordance with the act was dated on the 14th day of September, 1892, and stated that the superintendent “has appropriated certain lands,” etc., referring to a map annexed thereto; and it further stated that the superintendent, “having made such appropriation, now enters upon said land and condemns the same for the purposes provided for in chapter 494 of the Laws of 1892, and assumes control and ownership of the same for and on behalf of the state of New York.” This notice, it may be, did not' conclude the state as to the date of the appropriation or entry. It was, however, the act of

It is argued that the act of 1891, providing for the clearing of the flow ground covered by the reservoir, was in effect an appropriation by legislative act, and was prior to the claim of the appellant, as it was passed and took effect before the contract from Kent to the appellant’s predecessors. The act at most was an' authority to the superintendent to appropriate, but was not in itself an appropriation. It remained for the superintendent to ascertain—as he afterwards did by additional surveys—the boundaries of the flow ground. Until that was done, and the land taken possession of, the appropriation under the act was not complete. An entry upon the site of the dam and commencing to there construct the dam did not amount to a taking possession of what might be the flow ground a mile above, and it was not so designed or understood by the superintendent. We therefore conclude that at the time the predecessor of the appellant purchased its property of Kent, and built its embankment, the property had not been appropriated by the state.

But it is said that Kent and his grantees knew of the location of the flow line of the proposed reservoir, and that work was being done in the construction of the dam, and that, therefore, the railroad company took nothing by its purchase from Kent, or at least has no claim for damages. In Forster v. Scott, 136 N. Y. 577 , 32 N. E. 976 , it was held that the provision of the New York consolidation act, which declared that no compensation should be allowed to the owner of land taken for a street for any building erected or placed thereon after the filing of a map of the proposed street as prescribed by the terms of the act, was unconstitutional. It was an illegal restriction upon the right of the owner to build upon his lot. A like view was taken in Re Mayor, etc., of City of New York, 24 App. Div. 7 , 49 N. Y. Supp. 119 . In Mills, Em. Dom. § 316, it is said that owners have a right to improve their own property, notwithstanding a line of public improvements has been marked out, unless such improvements were made in bad faith. The principle of the Forster Case seems to be applicable. The reason would seem to be that, as long as the owner cannot compel the other party to act or complete a pending proceeding, he should not himself be restrained from the ordinary use and control of his property. See Corporation, etc., v. Mapes, 6 Johns. Ch. 46 , 50; In re Wall St., 17 Barb. 617 , 642.

It is further claimed that the appellant and its predecessors, in locating the roadbed and embankment and building the same across Black river, violated the provision of section 17 of chapter 276 of the Laws of 1834 in not obtaining the written consent of the superintendent of public works to such crossing. This is on the theory that the Black river is a canal feeder belonging to the state. If at that time the land had been appropriated for a reservoir, as claimed by the defendant, then very likely the reservoir, with the river at that locality, would be deemed a canal feeder. If the land was not then appropriated, and the question was whether the Black river, before the con

“Sec. 17. The canal commissioners are hereby invested with a general and supervisory power over so much of any railroad as passes over any canal or feeder belonging to this state, or approaches within ten rods of such canal or feeder, so far as such power may be necessary to preserve the free and perfect use of the canals or feeders of this state, and necessary for making any repairs, improvements or alterations in the same; and said company shall not construct their railroad over or at any place within ten rods of any canal or feeder belonging to this state, unless said company "shall lay before the commissioners aforesaid, a map, plan and profile, as well of the canal or feeder as of the route designated for their railroad, exhibiting distinctly and accurately the relation of each to the other, at all the places within the limits of ten rods, as aforesaid; and shall thereupon obtain the written permission of said canal commissioners, with such conditions, instructions and limitations as, in the judgment of said canal commissioners, the free and perfect use of any such canal or feeder may require.”

In the general railroad act of 1850 (Laws 1850, c. 140, § 28, subd. 5), there was a provision that “every company formed under this act shall be subject to the powers vested in the canal commissioners by the seventeenth section of Chap, two hundred and seventy six of the Session Laws of eighteen hundred thirty four.” In 1890, section 28 of the act of 1850 was repealed, but the general provision in the first clause of section 17 of the act of 1834 was, in substance, embodied in section 13 of the railroad law. laws 1890, c. 565. In the canal law (Laws 1894, c. 338, § 25) the provision of section 17 of the act of 1834 was, in substance, embodied, with the modification that the provision requiring the written permission of the officer in charge of the canals was made applicable to all railroad corporations. Section 17 of 1834 is among the acts repealed by the canal law. So that, apparently, at the time the railroad of the appellant was built across the river, as well as at the time when the railroad company that built it was incorporated, the only law requiring written permission of the superintendent of public works was section 17 of the act of 1834. It will, however, be observed that the provision in that section requiring written permission as a condition precedent applies only to the corporation created by the act. The expression “and said company” could refer only to that corporation. There was a reason for making such a condition as to that corporation, as by the general route it was authorized to adopt it might pass near or over a canal or feeder then existing or contemplated in that vicinity. No question is made in the present case as to the general supervisory power of the superintendent. We are of the opinion that the failure of the constructing corporation to obtain the written permission of the superintendent before carrying its track across the Black river is not a bar to the appellant’s claim. We therefore conclude that the appellant is in a position to recover its damages

Judgment reversed, and new trial granted, with costs of appeal to the appellant. All concur.