
    Baker & Clogher vs. Johnson.
    The appropriation of land for a canal by the authorized agents of the state, confers a right to enter upon and use the soil, although the absolute fee does not vest in the state till the appraisement of damages.
    No formal resolution of the canal commissioners is necessary to warrant such appropriation ; an entry upon the land, laying out and commencing the work, will bo sufficient.
    Where a statute authorizes the taking of “ lands” for public use, e. g. a canal, the stone in the earth and every thing else included in the general definition of the term land, may be taken.
    Accordingly, where, in trover for a quantity of quarried stone, it appeared that they were obtained by the defendants in excavating a part of the Black River Canal through the plaintiff’s land, and were used by the former in the construction of certain locks thereon, in virtue of a contract made by them with the canal commissioners ; held, that the action could not be maintained, inasmuch as the stone belonged to the state.
    In this case the contract of the defendants with the canal commissioners provided, that the former should find all thé materials necessary to the performance of the work, and contained several stipulations by which it was agreed they might use the earth obtained from digging, and fixed certain specified rates of payment for excavation of rock, for stone masonry and for lining when the materials were not obtained from excavation ; and held, that under this contract the defendants were authorized to use the stone which might be procured from excavations
    Trover for a quantity of quarried stone, tried before Gridley, 0. Judge, at the Lewis circuit, in December, 1840. By an act of the legislature, (Ch. 157, Statutes of 1836, p, 207,) the canal commissioners were directed to construct the Black River Canal; and for that purpose they had power to “ enter on, and take possession of, and use all lands, streams and waters, the appropriation of which for the use of such canals and works shall, in their judgment, be necessary.” (1 R. S. 220, § 16.) The plaintiff owned a farm in Leyden, Lewis county, through which the line of the canal passed; and the acting commissioner entered upon and took possession of the plaintiff’s land lying in the line of the canal. The defendants entered into a contract with the commissioners to construct four locks with certain other works on the canal which were located on the plaintiff’s land so entered upon as aforesaid. By the ■ contract the defendants agreed that they would furnish all the materials and perform all the labor necessary to construct and finish the four locks—numbers 87, 88, 89, 90—and to grub and clear, and to excavate the lock pits, and to embank t':e same; and to do all necessary work to complete the grubbing, clearing, excavation, embankment, lining, puddling, slope wall and docking, that might be required on one chain of the canal above and one chain below each lock. The grubbing of timber was to be *64 feet wide, and all the logs, brush and wood of every description were to be burned up or otherwise disposed of so as to do no unnecessary injury to the adjoining lands. The banks of the canal were to be constructed of the most pure, solid and water-tight earth that could be obtained from the adjoining excavation. It was provided, that “ when the prism of the canal does not afford materials sufficiently impervious to form the face of banks, or bottom of canal, it may be procured at such other places as the chief' engineer for the time being shall direct.” The specification annexed to the contract provided, that “ in excavating • the lock pits, care shall be taken to deposit the earth so as to form as large a portion of the lock and other embankment as in the opinion of the said engineer may be done consistently with a proper and economical prosecution of the work.” Earth taken from, excavation of prism, of canal or lock pit and carried into embankment, was in certain cases only to be paid for as excavation. And when the excavation of prism or pit did not afford sufficient earth for embankment, the materials were to procured elsewhere. The defendants were to be paid at certain specified rates for each of the different descriptions of work—for excavation of solid rock, at the rate of ¡100 cents per cubic yard— for stone masonry in lock walls, at the rate of §8,94 per cubic yard—for lining, where the materials are not obtained from excavation of pit or canal, at the rate of 20 cents per cubic yard : and so going on with a particular specification of prices for each kind of work.
    The stone in question were obtained by the defendants in the necessary excavation of the lock pits. They were at first drawn out and laid on the plaintiff’s adjoining land from ten to twenty rods from the locks; and were afterwards •used by the defendants in the construction of the locks. Some were dressed for face stone, and others were used for backing. The plaintiff forbade the use of the stone, claiming them as his : but the defendants claimed the right to use them in building the locks, and having done so, the plaintiff brought this suit. Aftdr evidence had been given concerning the value of the stone the plaintiff rested, and on a motion for a nonsuit the judge held, that the stone at the time of the conversion did not belong to the plaintiff, • but were the property of the state; and the plaintiff was thereupon nonsuited. He now moved for a new trial on a bill of exceptions.
    
      W. Baker Sp J. A. Spencer, for the plaintiff,
    made the following points: 1. The plaintiff is the acknowledged owner of the farm on which the locks in question were located, and was therefore the owner of all the stone lying thereon, unless the state had appropriated them to its own use. 2. In the absence of any resolution or other expression by which the property intended to be appropriated may be designated or described, the only evidence of an appropriation by the state is the actual taking of the thing. 3. The stone in question were not taken by the state, but by the defendants, who had contracted to “ furnish all the materials and perform all the labor” necessary to construct the locks, and were paid a full compensation stipulated in the contract, per cubic yard, for the finished work. 4. The defendants lawfully excavated the stone, and drew them from the lock pits. This they were bound by their contract to do; and for this they were paid a full and separate compensation, also settled by the contract. Further than this, they had no right to meddle with the stone without the plaintiff’s con sent. 5. If the contract had provided that the defendants should construct the locks of materials to be furnished by the state, iri that case, after the stone were thrown out of the lock pits, and laid upon the plaintiff’s land, the state might have directed them to be placed in the lock walls; and this would have been an appropriation of the stone by the state.. But the state having provided in their contract with the defendants that the latter should furnish their own materials for the construction of the locks, the former was under no necessity of making an appropriation for that purpose, and accordingly did not take 'the stone. But the defendants took them on their own account, and put them into their lock walls. 6. The decision of the circuit judge was founded on the supposition that the state, in locating the canal, became “ entitled to" or, in other words, seised of all the land and materials lying within the outer lines of such location. This is an error. The canal commissioners may rightfully “enter on and take possession of and use all lands, streams and waters, the appropriation of which for the use' of such canals and works, shall in their judgment be necessary. (1 R. iSt 206, § 16.) But “ entering on" lands for the purpose of constructing a canal, does not divest the owner of the soil of his title. This passes to the state only on the appraisement of the owner’s damages. (1 R. S. 212, § 57. Brinkerhoff v. Wemple, 1 Wend. 470.) Taking and using 
      the stone by the state, were therefore necessary to constitute an appropriation. 7. In the appraisement of damages under the statute,, both benefits and damages are estimated. (1 R. iS. 212, •§ 55.) And only the damages remaining after deducting the benefits, are to be paid to the claimant. (Id. § 58.) It is in this way the state is to obtain an indemnity for the value, which at its expense, has been added to the plaintiff’s stone; and as such increased value will, be a legitimate set-off- against the plaintiff’s claim of damages, the amount thereof will be a real loss to the plaintiff,, unless he recovers the value of the stone in this action. 8. The defendants lose nothing by the plaintiff’s recovery. They are paid by the state - the full value of their labor, and also the value of the stone in question, precisety the same as- if they had purchased them at a neighboring quarry, and had- excavated them and delivered them on the bank of their locks. 9. The stone- in question, at the time of the taking and conversion thereof, were lying on the plaintiff’s land from ten to twenty rods back from the lock pits; so that they were not even within the boundaries of the canal as surveyed and designated. And consequently, if they had been suffered to lie there till the completion of the canal and the appraisal of the damages, they would not have passed to the state as an appendage of the land, the fee. of which would then vest in the state. 10. If the stone in question had been within the boundaries of the land surveyed for the canal, and if being suffered to remain there, they would, when the title of the state shall become perfect by an appraisement of damages, have passed to the state as an appendage to the land, yet the present inchoate right of the state cannot be set up in defence by a trespasser.
    
      W. Tracy, for the defendants,
    made the following points : 1. The act for the construction of the Black River Canal (Sess. Laws of 1836, p. 207,) authorized the canal commissioners to enter upon and appropriate the land of the plaintiff from which • the stone was taken ; (Rogers v. Bradshaw, 20 John. R. 735; 1 R. S. 220, § 16;) and no formal resolution of the commissioners was necessary. (Lyon v. Jerome, 15 Wend. 569.) 2. The appropriation by the commissioners was of the whole of the plaintiff’s estate in the land taken, which divested him of any ownership or possession therein, and converted his estate into a mere claim for the damages which he might sustain by the appropriation. And when these damages are appraised, the fee simple vests in the state. (1 R. S. 224, § 46. Id. § 47 to 51. Brinckerhoff v. Wemple, 1 Wend. 479.) 3. The provision in the contract that the contractors should furnish materials ■ to build the locks, does not affect the question in this suit; for it is manifest that this provision was intended to operate no further than to compel them to furnish such materials as could not be found in the land appropriated. In taking the land, it became necessary for the state to take the freehold. The stone or timber contained in it formed part of its value, and are to be estimated in the appraisal of damages. 4. The plaintiff showed neither property in nor possession of the stone. The ground to which they were removed by the defendants was immediately adjoining the locks where they were required to be used and where the defendants were cutting them, of which the defendants had possession.
   By the Court,

Bronson, J.

The people of this state, by their proper agents, entered upon that portion of the plaintiff’s land which lies within the external lines of the canal, and appropriated it to the public use. Although the absolute fee did not pass to the state until the appraisement of damages, yet the right to enter and use the property was perfect the moment the appropriation was made. (1 R. S. 220, § 16, and p. 226, § 52. Rogers v. Bradshaw, 20 John. R. 735. Brinckerhoff v. Wemple, 1 Wend. 470.) No formal resolution of the commissioners to take the land was necessary. (See Lyon v. Jerome, 15 Wend. 569.) Entering upon the land and laying oiit and commencing the work amounted to a sufficient appropriation.

The state takes a fee—not a mere usufructuary interest; (1 R. R. 226, § 52;) and there is no appropriation of one kind of earth and not of another. The people do not get the soil and lose the stone. They take the land, including, of course, every thing both upwards and downwards. If they did not take the land, they took nothing; for there is no pretence that the public agents appropriated any particular portion of the property to the exclusion of the rest.

The plaintiff’s counsel have laid great stress upon the fact that the defendants, in their contract with the commissioners, agreed to furnish all the materials for doing the work. But I am unable to see how that fact proves any thing in favor of the plaintiff. If the defendants have used materials which belonged to the state, instead of providing them at their own expense, the commissioners will undoubtedly have that matter properly adjusted when the defendants are paid for building the locks.

Although the commissioners inserted a stipulation that the defendants should furnish all the materials, I think it was intended that the defendants should use such materials as came out of the lock pits and prism of the canal, so far as they would answer the purpose. As to excavations of earth, this plainly appears in several clauses of the contract; and I see no reason for drawing any distinction, so far as relates to this question, between excavations of earth, and those of rock or stone. Besides such materials as would come out of the lock pits and prism of the canal, it was necessary to provide boards, plank, timber, iron, spikes, lime, and various other articles. The commissioners were willing, in accordance with what I take to be the common practice in such cases, that the contractors should use such materials as they found in making the necessary excavations. But as the quantity to be obtained in that way was uncertain, and would at most be only a small part of what would be required, the commissioners, to avoid all controversies, said to the contractors, “You must furnish all the materials.” This clause is, however, plainly qualified by the subsequent provisions of the contract, which show, I think, that the contractors were at liberty to use any suitable materials which they might find in making the necessary excavations..

If it were necessary to look beyond the fact that the commissioners made an appropriation of the land, and seek for the manifestation of an intention on their part to appropriate the materials which should come out of the lock pits, I should find sufficient evidence of such intention in the contract which they made with the defendants. But it is enough that they appropriated the land within the external lines of the canal.

There was no pretence on the trial that the stone when quarried were removed further from the lock pits than was necessary for the purpose of finding a convenient place of deposit where the stone might be dressed and fitted for the locks. If any injury was done to the plaintiff by placing them on his land, he is not without remedy. The necessary use of his land adjoining the line of the canal, did not give him a title to the stone, nor did it add any force to the claim he sets up in this action.

The views I have taken of the case will work no injustice to the plaintiff. When he comes to the question of damages, the state will pay him all he has lost in consequence of the construction of the canal. The appraisers will of course take into consideration the fact that there were stone in the land which has been appropriated to public use.

New trial denied.  