
    The People of the State of New York, Respondent, v. Mary L. Fisher and The J. P. Lewis Company, Appellants.
    Fourth Department,
    December 28, 1906.
    Eminent domain — taking of forest lands by the State for canal feeder — when State acquires fee by compensating owner — cutting timber on forest preserve.
    "When a judgment of the Court of Claims which awards the value of forestlands submerged by a dam built for canal purposes specifically states that the award is made for the permanent appropriation of the lands therein described and a' map of the lands taken is filed and served upon the owner, who acknowledges in writing the receipt of the award, the State acquires a fee iu the lands so taken and the former owner is liable under section 222 of the Forest, Fish and Game Law for cutting timber thereon.
    The judgment of the Court of Claims and the acceptance of the award for the permanent appropriation of the lands divests the owner’s title, irrespective of the filing and serving of the map of the lands taken.
    The State on submerging such lands for canal purposes is not limited to the acquisition of easements, but may acquire the lands submerged and the shores surrounding the same.
    The fact that lands were submerged for the purpose of a canal feeder is not inconsistent with the lands becoming part of the State forest preserve, and the former owner is liable under the Forest, Fish and Game Law for trespass in cutting timber thereon.
    McLennan, P. J., and Iíash, J., dissented, with memorandum.
    Appeal by the defendants, Mary L. Fisher and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 1st day of August, 1906., upon the report, of a referee for $450 damages, besides costs.
    The action is brought to recover penalties" under section 222 of the Forest, Fish and ■ Game Law (Laws of 1900, chap. 20, as aind. by Laws of 1902, chap. 334, and Laws of 1905, chap. 285), for cutting timber upon lands situate in the county of Herkimer, claimed to be owned by the State and'part of the forest preserve, and title to which is-disputed by the defendants, the defendant Mary L. Fisher claiming to own the same. The amount of the verdict was stipulated, but the liability of the defendants was denied. The referee decided in favor of the plaintiff, and -the defendants appeal from the judgment entered upon his report.
    
      C. D. Adams, for the appellants.
    
      Julius M. Mayer, Attorney-General, and John K. Ward, for the respondent.
   Kruse, J.:

If the lands upon which the timber was cut were owned by the State, it follows that the judgment was properly directed against the defendants, for it appears they are situated in the county of Herkimer, and section 216 of the Forest, Fish and Game Law provides that the forest preserve shall include lands owned or-hereafter acquired by the State, among others those within the county of Herkimer. Amd section 7 of article -7 of the State Constitution provides for the preservation of the lands constituting the forest preserve. It requires that they shall be kept as wild forest lands, not be leased, sold or exchanged, or be taken by any corporation, public or private, and; prohibits the sale, destruction or removal of-timber thereon. Section 222 of the Forest, Fish and Game Law (as amd. suprai) authorizes an action to recover damages for trespass or waste on the lands of the forest preserve, a'nd, among other things, subjects a.person who cuts or carries away any tree, timber, wood or bark from State lands in the forest preserve to a penalty of ten dollars for each tree cut or taken away or destroyed by him Or under his direction.

More serious, however, is the question of the ownership of the lands. Unless they belong to the State, Or the State has such an interest in them as to own the timber, manifestly this' action is not maintainable. It is claimed on behalf of the State that it acquired an absolute title in fee from the defendant Mary L. Fisher through various acts and proceedings done and taken on behalf of the State and what occurred between the officers of the State and the defendant Fisher, which will be hereafter referred to.

The lands are a part of a tract of 9,600 acres, which is about six miles long north and south and two and a half miles wide east and west, through which the Beaver river flows in a westerly direction, eventually flowing into the Black river. The Beaver river divides the tract so that about three-fifths of it is north of the river.-and two-fifths south thereof. A creek known as Twitchell creek flows from the south line of the tract into the Beaver river, about half a mile above the. west line of the tract. . The tract is timber land except about 2,300 acres covered by the pond made by the dam built by the State, as will be hereafter stated.

It is claimed on behalf of the State that it acquired not only the title to the 2,300 acres covered by the pond, but as well to a belt of land immediately, surrounding the pond, comprising about 450 acres, making in all 2,754 acres. This tract of 2,754 acres is. regular in shape, the exterior of which is bounded by a right angle survey line, and includes within its. bounds substantially all of the arms, bays and inlets of the pond, the shore line of which is irregular, the "surrounding land varying in elevation, some places rising abruptly, and others rising more gradually and gently. The cutting of the timber in question was done on this belt skirting the pond, on high land, on the northwest part of the 2,754 acre tract.

In the month of June, 1886, the Superintendent of Public Works of the State, pursuant to chapter 336 of the Laws of 1881, for the purpose of supplying to the Black river a supply of water, began the construction of a dam on Beaver river, half a mile below the deféndant Fisher’s lands. The dam was completed in 1887, and was nine feet high. It caused the water to back up Beaver river and Twitchell creek and completely inundate 1,594 acres of the defendant’s lands, destroying the timber thereon. .Afterward, and in the year 1893, pursuant to chapter 469 of the Laws of 1892, the Superintendent of Public Works raised the dam an additional five feet, thus making the dam fourteen feet "high. The reservoir was filled and the dam became operative in 1894, some time before October of that year, resulting in a like overflow and inundation and destruction of timber thereon of about 700 acres in addition to . the 1,594 acres‘theretofore covered by the water so set back, making .about 2,300 acres so covered by the pond.

It appears that after the first overflow and in the, month of September, 1888, the defendant Mary L. Fisher presented and tiled with the Board of Claims of the State, a claim duly verified for the damages sustained by such overflow, claiming that 2,000 acres of her said lands, on which was a large amount of valuable timber, was overflowed by the water setting back, by means of the dam constructed by the State completely inundating the same and Constituting a permanent pond of the body of the reservoir holding the-water which had been so set back, and rendering if of no value for other purposes; that it was designed to be permanent and the reservoir to be perpetual, and that the State had permanently deprived her pf the lands and ef all use and benefit thereof, and had appropriated the same and the timber thereon to the State’s own exclusive use and benefit. She further claimed that by reason "of the construction of the dam and the raising of the levél of the water and the resulting'permanent inundation and .overflow of her lands adjoining Beaver river and its tributaries'^ adjacent lakes, bays, ponds, inlets and creeks for. miles thereabout, and the destruction of the natural current and course of the said river and its tributaries and their tributaries had cut off and rendered inaccessible 7,500 acres of heavily. timbered land not Overflowed,, and had greatly injured it and destroyed the highways, to wit, the streams whereby the timber on said lands not overflowed, could have been conveyed to the market, and had deprived her of the roadway and waterway in utilizing the timber of the land, greatly damaging the remainder of the 7,500 acres and the timber thereon. She also claimed that timber was taken by the officers of- the State in constructing the dam. She placed her damage at $45,000.

The matter was tried before the Board of Claims, and an award was made on the 29th day of Decémbér, 1891, to her for the sum of $9,970. The Board of Claims, in its decision, finds that the State had permanently appropriated to its use for the dam and reservoir, of the land, islands, lakes, creeks and rivers belonging to the claimant Mary L, Fisher, 1,594 22-100 acres of lan4 and water, as appeared from a map and survey made in October and November, 1887, and July to October, 1890, showing the flow lines of the said reservoir and the land and water so taken and permanently appropriated, and tiled in the office of the clerk of the Board of Claims. On or about the 8th day of February, 1892, the Superintendent of Public Works drew his draft upon the Comptroller of the State in favor of the defendant -Mary L. Fisher for the amount of the award, and this draft was paid on the 12th day of April, 1892.

After the raising of the dam in 1892, and on or about the 4th day of February, 1895, the -defendant Mary L. Fisher presented and filed a like claim for damages sustained by her in consequence of the additional overflow caused by the raising and reconstruction of the dam, as has been stated. In that claim she likewise stated that the State had appropriated land, this time to the extent of 700 acres, and put it into permanent use for the purpose of a reservoir, and that the trees and timber thereon had been destroyed and rendered valueless; that the State had erected a dam for the purpose of perpetually maintaining an overflow and for the collection of the waters of the river and creek above the dam, and demanding an award of $21,000. This claim was likewise heard before the Court of Claims, and an award seems to have been agreed upon. On the 10th day of November, 1897, the Court of Claims awarded her the stun-of $4,500, and as is therein stated, in settlement, the claimant and the officers of the State having apparently reached an amicable adjustment. The judgment making the award specifically stated that it was for the permanent appropriation of the lands therein accurately and precisely described, which comprise the 2,754 acres.

After the award had been made and before the warrant to pay the same had been delivered to the defendant Mary L. Fisher, and on the 14th day of July, 1898, the Superintendent of Public Works duly filed in the office of the State Engineer and Surveyor the map described as the right angle survey, together with a description of the 2,754 acres of land, precisely as described in the award, which map was certified by John W. Tait, resident engineer, July 8,1898, and also by the State Engineer and Surveyor July 14, 1898, and also by the Deputy Superintendent of Public Works with the statement thereon, “ permanently appropriated for the use of ¡the canal.” The Superintendent caused a copy of the said map and of the said certificates on the same and a description of the premisOs described in the award and in the complaint to be persopalIy left with the defendant Mary L. Fisher July 18, 1898, ~together with a notice dated July 16, 1898; signed by the Superintendent of Public Works, stating that "in pursuance of chapter 338 of the Laws of 1894, you are hereby notified that a map and survey of that portion of your land and p1~ernises appropriated by me for the purpose of a reservoir at Stillwatei', on the Beaverrivel', was filed in tjie. office of the State Engineer and Surveyor-on the 14th day of July, 1898, and a copy of said thap and survey is attache." This was signed by the Deputy Supe~in~ende~it of Public Works. On the 19th day of July, 1898, the Superintendent of Public Works caused to be filed with the ~1erk of Herkimer county~ copies of the map, certificates and notice, with proof of leaving them personally with the defendant Fisher. Thereafter and on the 22d day of July, 1898, the Superintendent of Public Wo~'ks drew his draft upoil the Comptroller of the State in favor of Mary L. Fisher for the sum of $4,500, with the statement therein contained that it was in full of an award of the Court of Claims made On the 1.0th day of November, 1897, for a permanent appropriation of and damages to lands in lierkimer county by reason of the raconstruction and raising of the crest of the dam on Beaver river at Stiliwater by the State, and in full dis.chai~ge of anyclaim of Mary L. Fisher against the State. And the defendant Mary L. Fishier likewise executed and delivered to the Superin:tendent of Ptibltc Works an acknowledgment in writing by which tli~ defendant acknowledged the receipt of the draft in full of the award, containing the satne statement as the draft. This draft was presented and paid on the 4th day of August, 1898.

No other or further claim has. ever .been presented by the for taking and appropriating the said 2,754 acres.

The referee decided, and correctly, we think, that the defendant Mary L. Fisher had been divested of her title to the .2,754 acres, and. that the State had acquired the same and became and is the owner in fee simple thereof, and that the same are within and form a part of the forest preserve.

We are in entire accord with the views of the learned referee as -expressed in his opinion, except hi one aspect of the case, to which we will- call attention, and that does not affect the result.

The referee held that the defendant Mary L. Fisher was not divested of the fee in the lands by any or all of the acts or proceedings before referred to, save by the making, serving and filing of the map, which he held should be construed as an appropriation of the fee of the 2,754 acres in which the State already owned a permanent easement. We think that even if the making, serving and filing of the map did not have the effect alone to divest the defendant of the fee in the 2,754 acres, that what was done by the authority of the State upon these lands, the defendant’s claims, the awards made thereon and what occurred in connection therewith and subsequently thereto, including the map, did divest her of her title, or at least now conclude her from asserting- any claim of ownership in the lands against the State.

While the Board of Claims had no jurisdiction to determine the necessity for taking the lands, it could determine what interest and how much had been taken and appropriated. Indeed, it was necessary to do so to determine the amount of the award. If the claimant’s statement is to be relied upon, the lands had been appropriated, even beyond the bounds of the pond, and no value remained in the owner, except possibly the naked fee. The second award, founded upon the claims'so made, and presented to the Board of Claims by the claimant, and the recitals in the judgment that the entire 2,754 acres had been permanently appropriated, shows that the State had taken the entire interest, and full compensation was awarded therefor ; and if so, it is not apparent how she can now claim to own the timber or to have any interest of value in'the lands. Even if this award, standing alone, did not have that effect, taken in connection with the judgment, the claim made by the Superintendent of Public Works by filing and serving the map, and the statement in the draft given her thereafter by him, and the like statement contained in her written acknowledgment, and she having accepted payment under those conditions, it is difficult to see how she can now claim she has any further interest in the lands.

It was early the policy of the State to acquire the title in fee to the lands appropriated by the State for canal purposes. (Laws of 1817, chap. 262.) - This policy has been adhered to uniformly, and has been incorporated in our present, statute law. Section 73 of the Canal Law (Laws of 1894, chap.' 338) provides that “the title to all real property permanently appropriated, for the use of the canals of the State shall be vested in the people of this State.”

Until 1830 there was no provision in our law which provided for acquiring a less interest than a fee in any lands for canal purposes, however limited or restricted the use of the lands might be. By chapter 293 of the Laws of 1830 an appraisal was authorized for the overflowing of lands by the erection.of any dam by the canal officers, or for the occupation or entry of any river or streams connected with the public works, and these provisions have been incorporated in the Canal Law of the State. (Canal Law, §§ 70, 74.) There is,, however, no provision in the law which prevents .the acquiring in fee of lands for storing Avater for the use of the canals. Section 70 of the Canal Law specifically authorizes the"Superintendent of Public "Works to “ enter on, take possession of and use any lands, structures and Avaters,'the appropriation of which for the use of the canals and the Avorks connected therewith, and for the execution and completion of any repairs or improvements directed by the Canal Board or Legislature to be made, shall "in his judgment be necessary.” It then provides for the' making, filing and serving of a. survey and map of the lands,' with the notice, as was done in this case. That provision was neiv when it was enacted in the Canal Law in this section in 1894, in effect October first of that year, the purpose of which was evidently to make more certain, the lands and interest therein which was to be acquired from the owner. Before that the precise lands and the nature of the right therein Avas determined by" the mere taking of possession and the use and circumstances indicating the intention of the State officers having the matter in charge.

Property required for canal purposes has always been taken in a summary Avay without judicial proceeding. (Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345.)

We think the circumstances clearly show in this case that it was the intention of the proper officer of the State to acquire the title in fee .of the lands in question, and whatever uncertainty may have existed in that regard Avas eventually settled by the last proceeding before the Board of Claims, and by what folloAved between the officers of the State and the defendant Mary L. Fisher; that the map •was made,'served and filed more as a precaution against any claim which she might make, and not as an absolute necessity.

However, if it be true that up to that time the State had acquired but an easement in the lands, we agree with the learned referee that the making, filing and serving, of this map show that it was the intention at. that time completely to extinguish any interest which Mary L. Fisher might have in these lands, and that the State acquired the same.'

It is 'contended on behalf of the defendants that while the State had the right to take for canal purposes such lands as were necessary therefor, and acquire such interests therein as were needed for that use, the belt of land immediately surrounding this reservoir or pond of water was not needed therefor, and hence the State could not acquire the same;

We think it cannot be said that the State had no right to acquire the title to the lands upon which the waters were stored, including such as lie between the inlets and bays and immediately surrounding the same, nor that the officer charged with the duty of determining the needs of the State in that regard was not justified in concluding' that the lands were so needed.

The mere fact that some of this timber is upon high ground and thp.t some of the land is somewhat remote from the main body of water is not sufficient to warrant us in holding that the Superintendent of Public Works, a constitutional officer upon whom devolves the duty of determining the question, was wrong in deciding that the best interests of the State required their acquisition for use in connection with the canal sy.'.tem of the State, and that the interest in the land so to be acquired should be in fee simple. The claims which were made from time to time-resulting from the overflow of these lands, as well as what might result from floods and otherwise, the preservation and protection of the water supply, and other conditions which we do not know and cannot foresee, may make it entirely proper and necessary for the State to own in fee not only the land underneath the main body of water, b.ut as well that which lies between the bays and smaller bodies of water directly connected with the main body and surrounding it. The suggestion that the timber, on this belt around the main reservoir or basin is not needed for canal purposes applies with equal force to such of the timber as may be upon the islands or other exposed portions of land within this general basin.

■It is the general rule that the necessity for exercising the right of eminent domain is a question of a political rather than of a judicial nature; that. its determination rests with the Legislature, and the courts have no power to review it, and that the Legislature may delegate the power to public officers, whose determination is likewise conclusive upon- the courts. .(Matter of Fowler, 53 N. Y. 60; People v. Smith, 21 id. 595.) And-so whether it will take the title in fee or simply acquire an easement is likewise a question of that character. As was said by Judge Ahdrews in Sweet v. B., N. Y. & P. R. Co. (79 N. Y. 293, 300): “ When the statute authorizes the taking of a fee, it cannot be held invalid, or that an easement only was acquired by proceedings ■ thereunder, on the ground that'in the judgment of the .court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That is a legislative" and not a judicial .question,”

We do not decide that where an officer óf the State assumes to ■take private property, ostensibly in the- exercise of a discretionary power vested in him by the Legislature which clearly can be seen, under no circumstances and in no.event, will be needed for public purposes, that courts may not intervene and determine contrary to the expressed judgment of such officer the question of the necessity for taking the same, and judicially declare such an assumption of authority nugatory. But the circumstances ■ of this" case we think do not establish that fact.

Neither do we think that the holding of this belt of timber land in connection'with the canal system is inconsistent with it being a part of the forest preserve. Its purpose is not to cut the timber and devastate the land, but the reverse. One of the .reasons, and perhaps the principal One, for putting-in to the Constitution theprovision forbidding the disposition of the lands of the S.tate within' the territorial limits of the forest preserve and forbidding the .selling and destruction of timber thereon, is to protect and preserve the water supply, and it is entirely consistent with the use to which they are put in connection with the canals; We think the protection afforded this land by being within the forest preserve is quite in Uccord with the settled policy of the State," not" only to acquire the title in-fee and become th'e absolute owner of the lands acquired by it for canal purposes, but to hold the same permanently, and to control and have the sole possession thereof entirely free from other rights and claims which might interfere with and hinder the State in carrying on this great public work.

The judgment should be affirmed, with costs.

All concurred, except McLennan, P. J., and Hash, J., who dissented in memorandum by McLennan, P. J.

McLennan, P. J. (dissenting):

I dissent on the ground that the evidence conclusively establishes that there was no necessity on the part of the State for acquiring title to or interest in the strip of land in question, and which surrounds the storage reservoir created by the State; and, further, that there is no act of the Legislature which authorizes such taking or the taking of any land belonging to the defendant Fisher other than such as was overflowed as a result of the .construction of the dam which was authorized; and, further, upon the ground that the defendant is not estopped by the award made to her and the acceptance thereof from insisting that the title to the strip of property in question is still in her, and that she has the right to dispose of the timber thereon.

Hash, J., concurred.

Judgment affirmed, with costs.  