
    Hallam Eldridge, App’lt, v. The City of Binghamton, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 29, 1890.)
    
    1. Ejectment—Title of state to Chenango canal.
    Plaintiff’s claim, of title was founded on deeds from grantors, “ subject to the rights of the state of New York for the purposes of the Chenango canal.” Said grantors had been allowed $2,500 for damages in the appropriation of their land for canal purposes in 1838, which was off-set by the benefits conferred upon them. In 1880 the defendant, under chap. 391, Laws 1878, took possession of the premises and laid them out as a street. Meld, that defendant was entitled to possession.
    2. Eminent domain—Lands taken fob canal pubposes.
    Where land is taken by eminent domain by the state, or by one of its political divisions pursuant to its authority, for public use, the benefits may be set off, not only against the damages to the remainder, but also against the value of the part taken.
    3. Same.
    If chap. 32, Laws 1833, under which the state acted in appropriating the land, was constitutional, the fee was clearly acquired. If it was unconstitutional, the absolute title was acquired by adverse possession, and by whichever title it took, the title did not revest to the original owners, because the state had the right to sell or dispose of the land in any way it chose, even if the effect was to lessen the value of the adjoining property, including that especially benefited by the public improvement.
    Appeal from a judgment of the general term of the supreme court in the fourth judicial department, affirming a judgment entered upon a verdict directed by the court, and also affirming an order denying a motion for a new trial
    This is an action of ejectment to recover the possession of a parcel of land in the city of Binghamton that formerly constituted a part of the Chenango canal.
    The plaintiff’s claim of title is based upon various conveyances running back to Lewis Squires and Joseph B. Abbott, who, on September 1, 1836, conveyed the premises in question with other lands to Hiram and Ausburn Birdsell “ subject to the rights of the state of New York for the purposes of the Chenango canal.” This conveyance, as the record states, was “ made after the state took possession of the premises in controversy for canal purposes.”
    It was conceded on the trial that the usual and regular steps were taken by the state to condemn the land, and that on the 7th of September, 1838, said Squires and Abbott “ came before the appraisers and presented their claim (of $2,000) for damages occasioned by the appropriation of their land * * * for the construction of the Chenango canal.” By the award of the canal appraisers the claimants’ damages were appraised at the sum of $2,500, but the benefits conferred upon them, as the owners of the residue of the property, were estimated as in excess of this amount, so that no damages over and above benefits were awarded. The appraisement so made was duly recorded as required by law.
    The state continued in possession until January 1,1880, when the defendant, pursuant to chapter 391 of the Laws of 1878, took possession of the premises and laid them out as a street, without exercising the right of eminent domain and without taking any title except such as was released by said statute. All of the lands involved are within the limits of said street as laid out and recorded under the name of State street, and since January 1, 1880, they have been in the possession of the city “ claiming to hold them for a public street and succeeding the state in possession.” Neither the plaintiff nor any of his predecessors have been in actual occupancy since the state took possession and appropriated the land.
    The plaintiff was not shown to have any title except such as was conveyed by Squires and Abbott to Hiram and Ausburn-Birdsell in 1836, “ subject to the rights of the state.”
    At the close of the evidence the court directed a verdict for the defendants.
    
      George Whitney, for app’lt; George B. Curtis, for resp’t.
    
      
       Affirming 4 N. Y. State Rep., 696.
    
   Yantst, J.

By chapter 32 of the Laws of 1833, entitled “An act for the construction of the Chenango canal,” the canal commissioners were directed to “ proceed with all reasonable diligence to construct and complete a canal from Binghamton, in the county of Broome, up the valley of the Chenango river to its head waters, and thence by the most advantageous route to the Brie canal.” The Revised Statutes, in force at that time, provided that when any lands appropriated by the canal commissioners to the use of the public shall not be given or granted to the state, it shall be the duty of the canal appraisers to make a just and equitable estimate and appraisement of the damages and benefits resulting to the persons interested in the premises so appropriated, from the construction of the work, for the purpose of making which such premises shall have been taken. 1 R. S., 8th ed., 731, § 46. According to a subsequent section “ the fee simple of all premises so appropriated, in relation to which such estimate and appraisement shall have been made and recorded, shall be vested in the people of this state. Id., § 52.

Pursuant to the powers thus conferred the lands in question were appropriated, but the plaintiff insists that when the state takes the land in fee, even for a canal, the constitutional requirement as to just compensation can be satisfied only by a payment in money, as the state may subsequently abandon the canal, sell the land to a stranger, and thus deprive the owner both of the part taken and also of the benefits to the remainder.

The weight of authority seems to be in favor of the proposition that where land is so taken by the state, or by one of its political divisions pursuant to its authority, for public use, the benefits may be set off not only against the damages to the remainder, but also against the value of the part taken. Livingston v. The Mayor, etc., of New York, 8 Wend., 85; Rexford v. Knight, 11 N. Y., 308; Granger v. City of Syracuse, 38 How. Pr., 308; Genet v. City of Brooklyn, 99 N. Y., 296; Betts v. City of Williamsburgh, 15 Barb., 255; Birdsall v. Cary, 66 How., 358.

It may be that as, according to. the constitution in force when this land was appropriated, the state had no power to sell or dispose of any of its canals, the fee could be taken without making pecuniary compensation, even if the rule is otherwise in those cases where no restriction has been placed upon the power to sell. Constitution of 1821, art. 7, § 10. The benefits conferred would thus be subject only to the right of the people to amend the constitution, and all property interests are subject to that right, unless they are specially protected by the federal constitution, which, as it is well settled, has no application to the exercise of the power of eminent domain by a state. Withers v. Buckley, 20 How., U. S., 84; Barron v. The Mayor, etc., of Baltimore, 7 Pet., 243; Livingston v. The Mayor, etc., supra; Cons. U. S., fifth amendment.

We do not deem it necessary to now decide the interesting question raised by the plaintiff, as we have concluded that judgment must pass against him upon another ground.

The statute under which the state acted in appropriating the land under consideration was either constitutional, or it was not. If it was constitutional, as no question is raised as to the regularity of procedure, clearly the fee was acquired. If it was unconstitutional, as the state entered under color of title and claimed to own the fee pursuant to a statute which declared that the fee simple of all the premises appropriated should be vested in the people, the absolute title was acquired by adverse possession. Title to land may be acquired by adverse possession either by an individual, Barnes v. Light, 116 N. Y., 37; 26 N. Y. State Rep., 654, or by the state for the use of the public. Sherman v. Kane, 86 N. Y., 57; Mayor, etc., of New York v. Carlton, 113 N. Y., 293; 22 N. Y. State Rep., 625; The State of Rhode Island v. The State of Massachusetts, 4 How., U. S., 591; Birdsall v. Cary, supra. For more than forty years the state was in the actual possession and occupation of the premises, claiming to own them under its statutes and the acts of its officers pursuant thereto. The original entry as well as the continued possession thereafter was under the claim of absolute title such as. the statute purported, in terms, to confer.

The legislature had the power to determine what estate should be taken even if the public use was special and not necessarily per- ■ manent, and this court has refused to hold that a statute authorizing the taking of a fee is invalid, or that an easement only was acquired thereunder, on the ground that an easement only was-required to accomplish the purpose in view. Sweet v. The B., N. Y. & P. R. R. Co., 79 N. Y., 293; Tifft v. The City of Buffalo, 82 id., 204.

The claim of the state, therefore, is to be measured by the nature of the statute under which it entered into possession and built the canal. As that statute purported to authorize the acquisition of no estate less' than a fee, the state was in the position of one claiming the fee, whether the statute was constitutional or not.

Every act of the statute through its agents in constructing, maintaining and operating the canal over this land, being done under the authority of said statute, was an assertion of its claim, which, so far as appears, was never disputed until long after the period of limitation provided by law had expired. Code Civ. Pro., §§ 365 to 414; Code Pro., § 78; 2 R. S., 3d ed., 293, 294. Under these circumstances, we think that the title of the state became complete through adverse possession, independent of the right actually acquired by the proceedings in condemnation.

By a change in the constitution which took effect January 1, 1875, the restriction upon the power of the legislature to sell the canals was removed as to the Chenango Canal among others, and subsequently acts were passed authorizing the sale thereof. Con., art VII, § 6; Laws 1877, ch. 404; Laws 1878, ch. 391; Laws 1880, ch. 551. Whether the state acquired the fee to the lands-taken for said canal by condemnation or by adverse possession, its title did not revert to the original owners or their assigns upon the sale thereof because it had the right to sell the same, or to dispose of them in any way that it chose, even if the effect was to lessen the value of' the adjoining property, including that especially benefited by the public improvement. The Brooklyn Park Commissioners v. Armstrong, 45 N. Y., 234; Whitney v. The State, 96 id., 240.

The judgment should be affirmed, with costs.

All concur, except Follett, Ch. J., not sitting.  