
    Mary W. Burchard, Appellant, v. The State of New York, Respondent.
    Third Department,.
    November 11, 1908
    Eminent domain—appropriation of land for canal purposes — damages •— Court of Claims bound by evidence — cost of search.
    Where land has been appropriated for a State canal and the evidence both on the part of the claimant and the State places the damage at a certain sum, the . judges of the Court of Claims cannot award a less sum on the theory that they are personally capable of assessing the damage as experts.
    As such claimant is required to file a search showing his title ás a prerequisite to. the payment of any award, he is entitled to the costs of such search as part of his damage.
    Kellogg and Sewell, JJ., dissented.
    Appeal by the claimant, Mary W. Burchard, from a judgment of the Court of Claims of the State of New York in favor of the claimant,, entered in'the office of the clerk of said court on the 18th day of November, 1907.
    
      Northrup R. Holmes and John B. Holmes, for the appellant.
    
      William S. Jackson, Attorney-General [George P. Decker of counsel], for the respondent.
   Smith, P. J.:

The appeal is for insufficiency of award. The State had appropriated about nine and one-half acres of. the claimant’s farm for canal purposes. Bor compensation for such taking this claim is ■made. The evidence on the part of the claimant, as well as the evidence on the part of the State, showed'the damage to be $1,100 and upwards. In disregard of this evidence the claimant has only been awarded the sum of $767 damages. This judgment is defended by the plea that the Court of Claims is composed of land experts, who knew more about the value of land in the' locality in which this land was taken than the.witnesses, even those produced on the part of the State. If this" be so, and their judgment must be taken as true in the face of the positive evidence produced, it would hardly seem that the Legislature would have provided for a review of that question upon an appeal to this court. It is true that part of the land taken was stumpy and marshy and had never been plowed. In the face, however, of the testimony given by the witnesses both for the claimant and the State, we are of opinion that the court was not authorized to disregard that testimony and place the value below that given by any witness produced.

In order to obtain compensation for the land taken, the claimant was required to file a clerk’s search showing her title; this cost thirty-five dollars. This claim cannot be paid even voluntarily by the State without the filing of this search. The claimant insists that she is entitled to recompense for this disbursement. In Matter of New York, W. S. & B. R. Co. (94 N. Y. 287) it was held that in a proceeding to acquire title to land, the General Term had no power on appeal by the company from the order of confirmation to award costs against the owner. This was upon the theory that the owner was entitled to the full compensation for his land, and Judge Bapallo writing for the court says: “ They (the landowners) are entitled to the full amount of their damages when finally ascertained, and this amount cannot be diminished by allowing • to the company its own expenses incurred in ascertaining it, or in endeavoring to reduce it.” The principle of that case would seem to me to control the case at bar. The State cannot take this land without compensation. Nevertheless, before compensation can be made even voluntarily, the owner is required to pay a certain disbursement. That disbursement is made part of her damages. If that be not allowed to her she would not receive the full damages which she has suffered. If the interest in the land be small," the disbursement might well eat up the full amount of compensation received. To protect her in her constitutional right, therefore, the amount which she necessarily has paid for this search should be held to be part of the damages which she has sustained and which the State must pay. It is true that by section 274 of the Code of Civil Procedure no disbursements are to be allowed in an action prosecuted before the Court of Claims, but this is not a disbursement in that action. It is a disbursement made necessary to perfect her claim, and is presumably included in the damages which the Court of Claims is.authorized and required to award for land taken by .the-State. . .Otherwise the State would be taking her land without paying the compensation to which she is entitled under the Constitution. The judgment should, therefore, he reversed and a new trial granted, with costs to appellant to abide the event.

All concurred, except Kellogg and. Sewell, JJ., dissenting:

Judgment reversed on law and facts and new trial granted, with costs to. appellant. - . 
      
       See Const, art. 1, § 6.—{Rep.,
     