
    Timothy Gridley and Peter Flood vs. Timothy I. Darcey. Barna Smith vs. The Same.
    The Morris Canal Company may take materials for the construction of their canal without first obtaining an appraisement of the same.
    The proprietor is not precluded from his remedy by action, if no appraisement is made.
    But before sucb action can be sustained against the company, a claim or demand of amends should be made by tlie proprietor.
    
      Elias B. D. Ogden, atty. for plaintiffs in certiorari.
    
      Philemon Dickerson, atty. for defendant in certiorari.
    The following statement was agreed upon.
    Judgments having been recovered by the plaintiff in the court below, it is agreed that in these cases, the question to be submitted to the court be, whether the Morris Canal Company have a right *by their agents and workmen, [*293 to take materials from the lands of the plaintiff below, under the seventh section of their act of incorporation, without having first complied with the requisition of the sixth and seventh sections.
   The Chief Justice delivered the opinion of the court.

These actions were brought against certain workmen of the Morris Canal and Banking Company,'for taking away from the lands of the plaintiff below, materials to be used, in the construction of the canal. The state of the case, like that in the cases of Kough and Sutphin v. Darcey, is very inexplicit.

From the seventh section of the act of incorporation, it is obvious, that the legislature did not intend to make the appraisement a step preliminary to the taking of the materials, nor to require the company first to procure such appraisement. The language 'used is, “ for the materials taken or damages done.” It is also clear that the legislature did not intend to preclude the proprietor from his remedy by action, if no appraisement was made; for if so, they would have left him without remedy, except at the pleasure of the company, as on their application alone can there be an appraisement.

But the legislature designed to require, and as I understand the section, have required a claim to be made by the proprietor before action brought, so that amends might be made by the company by voluntary agreement; or the amount of remuneration be ascertained in the prompt and unexpensive manner pointed out in the section. The legislature had, -without doubt, authority to require such previous claim and to make it indispensable on the part of the proprietor to the maintenance of his suit.

Without it, in my opinion, these actions were not sustainable, and the judgments should therefore be reversed.  