
    Lyon v. Jerome, 26 Wend. 485, 501.
    In S. Ct. 15 Wend. 570.
    
      Canal Commissioner; Delegated Powers; Constitutional Law.
    
    Lyon sued Jerome in trespass for taking a quantity of stone from his quarry, for the construction of locks on the Oswego Canal. Jerome justified as chief engineer in the construction of the canal, under the statutes relating to the state canals. The stone was taken by his direction. The canal commissioner Avho had charge of the work, and who testified on the trial, saw it while in progress, but gave no direction to take the stone in question; the contractors, he stated, were authorized to take stone from a tract of land belonging to the state, adjoining plaintiff’s quarry, or from the bed of the canal, but not from the plaintiff’s quarry, but said if the engineer had represented that it was indispensable to use the stone of the plaintiff, he should have sanctioned, the taking of them. The plaintiff produced in evidence a certificate of the defendant of the quantity taken, and stating that he had taken it supposing the quarry Avas on the state lands. The plaintiff offered to prove that the canal appraisers had refused to make him any allowance for his stone taken; which was objected to and rejected. A verdict for plaintiff being found for $174, the defendant moved the Supreme Court for a new trial, which was granted.
    The Circuit Judge on the new trial, nonsuited the plaintiff, and the Supreme Court having refused to set the non-suit aside, a writ of error was brought to this court, and after full argument,
    The Court of Errors held, that the authority of the canal commissioners, under the canal statutes, to enter upon and take possession of the lands, &c., of individuals for the construction of a canal, can only be executed by them, in person, or under their express direction; and that an engineer or any other sub-agent of the state, can not lawfully exercise such power but by the express direction of the canal commissioners or one of them, although such engineer or other sub-agent has been entrusted with the superintendence of the canal in the vicinity of the premises entered upon.
   On this ground the judgment was reversed, but the Chancellor who voted to reverse on this ground, added: “I have serious doubts also as to the constitutionality of the acts of the legislature under which the property of the plaintiff was taken, no provision having been made whereby the owner of the property might compel the payment of his damages, or ensure the compensation to which he was entitled.” After some remarks upon the law as it stood by the former canal acts, until a subsequent provision was made for such cases, by the Rev. Stat., he says: “ I held in Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 17, and am still of the same opinion, that before the state can enter upon and occupy, destroy or materially injure the private property of an individual, except in cases of actual necessity, which will not admit of delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation. No such provision being made in the act of 1847, nor in the act for the construction of the Oswego canal, I am inclined on this ground also to reverse the judgment.”

With this opinion Senator Verplanclt also declared himself inclined to concur, but thought it better not to express any opinion on the point, as the constitutional point had not been raised at the trial or in the Supreme Court, and objected to any judicial expression of opinion on that ground.

Judgment of Supreme Court reversed unanimously.  