
    In the Matter of the Application of THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, to Acquire Land of EDWARD A. SWAIN and Others.
    
      Land under water — may be taken by a railroad company under section 25 of ehap. 140 of 1850 — no notice need be served upon the owner of the adjoining upland,— 1 B. S., 208, sea. 67.
    Appeal from an order made at a Special Term, confirming an award of commissioners appointed to appraise ,the damages to be paid to tbe appellant for tbe taking of a portion of his land by a railroad company.
    Tbe court at General Term said: “ Tbe appellant Swain is the owner of lands lying upon tbe west side of the Hudson river. Tbe railroad company seek to take about three-fourths of an acre, being substantially all tbe water front of Swain’s premises. In 1881, Swain bad taken initiatory steps to procure a grant of land under water in front of tbe premises from- tbe commissioners of tbe land office. He bad not obtained such grant at tbe time of tbe filing and service of tbe petition in this case by tbe railroad company. After tbe petition was served and before tbe appraisal now appealed from was made, tbe railroad company procured a title to tbe lands-under water in front of tbe Swain premises, by appraisal, under section 25 of chapter 140, Laws of 1850. Tbe service of tbe petition to acquire tbe lands under water .was not served upon Mr. Swain. Service was made only upon tbe proper State officers and tbe award was paid into tbe State treasury. Upon the bearing before tbe commissioners to appraise tbe upland, this appraisal of tbe lands under water was given in evidence and it is objected that Swain should have bad notice as a party interested in the lands-under water. We think tbe objection not a good one. Tbe argument is based upon tbe Revised Statute, which gives power to tbe commissioners of tbe land office to grant lands to owners of upland only and declaring that all other grants be void. (1R. S., 208, § 67.)
    “ Tbe section of tbe general railroad act above cited gives authority to railroad companies to acquire any lands belonging to tbe people-necessary for tbe purposes to their road “ by appraisal as in ease of lands owned by individuals.” The owner of tbe upland has no-interest in the land under water. (Gould v. H. If. M. Co., 6 N. Y., 522.) The power given by statute to the land office commissioner must be deemed to be modified by the act of 1850. ( Watson v. N. Y. Central, if N. Y., 157.) No notice, therefore, was required to be served on Swain to condemn the State lands because he had no interest in them and the law permitting their condemnation was legal.”
    
      Calvin Frost, for the railway company.
    
      Charles A. Jackson, for property owners.
   Opinion . by

Barnard, P. J.;

Dykman and Cullen, JJ., concurred.

Order- confirming report of commissioners affirmed, with' costs and disbursements.  