
    The New York Central and Hudson River Railroad Company, Appellant, v. The State of New York, Respondent.
    
      Eminent domain — commencement of work by the Slate on the site of a proposed, dam — it is not an appropriation of the ground, which will be flooded, by it — what is not a canal feeder—permission of Oanal Commissioners to the construction of a railroad within ten rods of a canal or feeder.
    
    At a time when nothing has been done by the State to interfere with or control the possession of land- by its owner, and no notice of appropriation has been served on him, the entry by the State upon the site of a proposed dam, and the commencement of the work of constructing the dam, does not constitute an appropriation or taking possession of what may be the flow ground of the dam when constructed, a mile above it, although the flow line of the proposed dam had been run some ten years before and intermittent efforts have meanwhile been made towards building it.
    The fact that the owner of the land and his grantee knew of the location of the flow line of the proposed reservoir, and that work was being done in the construction of the dam, does not preclude the grantee from claiming damages for an injury to its property caused by its subsequently being flooded with the water set back by the dam upon it.
    
      Semble, that a river, in its original condition, does not become a canal feeder simply because it is one of the sources of the water gathered and impounded in a pond for the purposes of the canal.
    Section 17 of chapter 276 of the Laws of 1834, requiring written permission to be given by the Oanal Commissioners before a railroad can be constructed within ten rods of any canal or feeder belonging to the State, applies only to the corporation created by that act, viz., the Medina and Darien Railroad Company; and it being the only law requiring such written permission at the time that the New York Central and Hudson River Railroad Company’s road was incorporated, and at the time that it was built across the Black river, southeasterly of the village of Forestport, the failure of the latter company to obtain such permission does not bar a claim by it against the State for injury done to its road constructed within such ten rods.
    Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of the Court of Claims on the 7th day of December, 1897, dismissing the claim of the plaintiff to recover damages for an. appropriation of lands and for injuries to a railroad embankment. •
    
      Charles E Snyder, for the appellant.
    
      T. E. Hancock, Attorney-General, for the respondent.
   Merwin, J.:

In April, 1894, the appellant, as lessee of the Mohawk and Malone Railway Company, operated a railroad which crossed Black river some two or three miles southeasterly of the village of Forestport. At the crossing the river was the boundary between the towns of Remsen and Forestport in the county of Oneida. The valley of the river at this point in the town of Remsen was about one thousand feet wide, and the railroad track was carried across upon an embankment from thirty-five to forty-eight feet in height. The embankment was finished in December, 1891, and thereafter it was used for railroad purposes. The land occupied by the embankment was a part of the farm of John S. Kent, from whom the predecessors of the appellant acquired title by contract dated June 4,1891, and subsequent deed of October 9, 1891. The work was commenced by consent of Kent a short time prior to the making of the contract. A map of the route and profile was filed in Oneida county clerk’s office on December .7, 1891.

In the construction of the Black river canal and Erie canal feeder, under chapter 157 of the Laws of 1836 and subsequent acts, a dam had been built across Black river near Forestport in or prior to 1848. This operated to produce the Forestport pond, so called, from which the waters of Black river were conducted into the Erie canal feeder. In 1884 at the head of the flow of the Forestport pond, and in pursuance of chapter 452 of the Laws of 1883, a new dam was commenced or work done in reference thereto with a view of obtaining further storage of water for canal purposes. This dam was completed in the summer or fall of 1893, and when fully in use operated to set back the water to the depth of about thirteen feet in the valley across which the railroad embankment was built. From December, 1893, to April, 1894, the water was kept continuously about the embankment, and on the 10th and 13th of April, 1894, a portion of the embankment, about 400 feet along the .central part, gave way. This was caused, as the appellant claims, by the action of the water set back by the dam.

On the 3d of September, 1892, a map was filed in the office of the clerk of Oneida county purporting to show lands proposed to be flooded and appropriated to the use of the State for a Black river reservoir at the head of Forestport pond, and on or, about September 14, 1892, the Superintendent of Public "Works served a copy of said map with a notice of such appropriation upon the owners or occupants of the lands flooded, among others upon the said John S. Kent, and upon the predecessor of the appellant then in the occupation of the said embankment. The map included, with others, the lands occupied by the railroad. The new dam was fifteen feet high and was located about a mile below the railroad.

On the 21st of August, 1894, the appellant, in its own behalf and as assignee of its predecessors in interest from the time of the contract and conveyance from Kent, filed the claim in suit for the recovery of the damages occasioned by the injury to the embankment above referred to, and by the appropriation by the State of the land for its reservoir.

Upon the part of the State it is claimed that the State had, in fact, appropriated the land in question for the purpose of its reservoir before the appellant or its predecessor in interest acquired title from Kent.

The project of the construction of a reservoir at the head of the Forestport pond had been a matter of public interest for several years. By chapter 475 of the Laws of 1881, page 643, provision was made for “survey of flow and line on Black river above Forest Park pond,” the work to be done under the direction of the State Engineer and Surveyor. Thereupon, in the fall of 1881, Mr. Phelps, an engineer and surveyor in the employ of the State, ran the flow line of -a supposed dam that would be twenty-one feet above the old 'dam at Forestport, and would be located at or near the place where the dam was afterwards located. He followed the contour of the ground on the same level, embracing all the ground that would be flowed, setting up stakes about two chains apart, and marking the line of trees. It was then timber land most of the way. The stakes were marked with the course and distance and the number of the station. They did not indicate what they were there for except that a survey had been made. From the notes made by the surveyor a map was made, called map of proposed reservoir,” and filed in the engineer’s office. The flowed ground as indicated on this map includes the embankment and valley in question.

In 1883 an act was passed by the Legislature (Chap. 452), by which the Superintendent of Public Works was authorized and directed to construct, or cause to be constructed, a reservoir on the Black river above Forestport pond, for the purpose of storing water for canal purposes, at an expense not to exceed $20,000. That amount was appropriated for that purpose. Thereupon, in the summer or fall of 1884, the site for the dam, being the present site, was fixed by the State Engineer and the Superintendent of Public Works. Some work was done and material obtained under the direction of the Superintendent, but the appropriation, as the State Engineer ■afterwards reported to the Legislature, was only sufficient to prepare the site and provide part of the materials for building the dam. The work next done was in 1889. By chapter 274 of the Laws of that year the Superintendent of Public Works was authorized and directed to complete the construction of a reservoir on the Black river above Forestport pond, and the sum of $45,000, or so much thereof as was necessary, was appropriated in addition to the appropriation of 1883, for the purpose of constructing a reservoir by building a dam not more than twenty feet in height. It was directed that the work should be let by contract, and should be completed on or before October 15, 1889. In September, 1889, a contract was entered into with one McG-uire, who thereupon proceeded with the work of constructing the dam,- built the abutment and wing walls, and an embankment on the side of the river. There was no structure that extended out into the bed of tlie stream. His work was stopped by the State officers about August, 1891. In April or May, previous, he was notified to stop work by reason of want of funds. The Canal Board on the 27th of December, 1889, approved of and adopted plans of the proposed dam at the height of fifteen feet, and at the letting in 1889 a map and plan of the dam and reservoir were exhibited, the map being a reduction from the minutes of the survey of Phelps in 1881, and a copy of the original Phelps map. The map so exhibited was approved and adopted by the Canal Board on December 29, 1889.

The work of the dam was not resumed until July, 1892, when, in pursuance of chapter 494 of the Laws of 1892, authorizing the Superintendent to complete the construction of the reservoir and making an appropriation for that purpose, a contract was entered into with Beckwith & Quackenbush, and they completed the dam.

By chapter 342 of the Laws of 1891, passed and taking effect May 6, 1891, it was provided as follows : “ The superintendent of public works is hereby authorized to clear the flow ground that will be covered by water, upon the construction of a reservoir on the Black river above Forest Port pond.” Provision was also made for letting the work by contract upon plans and specifications and an appropriation was made to meet the expense. The work called for by this act was done by Beckwith & Quackenbush in the summer or fall of 1892, under contract. A new map seems to have been made from the survey of 1881, which was examined and approved by the State Engineer on the 26th of May, 1891, and adopted by resolution of the Canal Board June 10,1891. A new survey was thereafter made to re-establish the flow line for the purpose of cutting timber off the flowed ground and establishing the acreage. This survey was not completed until after 1892. It was found that many of the stakes set in 1881 had been destroyed or were gone.

It appears that Kent knew of the survey in 1881 and its object, and he knew that a dam. was being constructed. It also appears that the agents of the railroad company when they laid out the route across the valley were informed of the existence of the stakes and that they indicated the flow line of a proposed dam. At the time of the contract and deed from Kent to the railroad company, his actual possession had not been interfered with by the State, and he continued after the deed to the railroad to use the balance of the land the same as he always had, up to the time notice was served on him in September, 1892.

The foregoing statement presents the more important circumstances in this case, from which it is to be determiiied whether or not on the 4th of June, 1891, there had been accomplished, on the part of the State, an appropriation of the land in question.

In Waller v. State (144 N. Y. 579) the rule was laid down that mere words of appropriation, unaccompanied by any act on the part of the officers of the State towards carrying such appropriation into ■execution and taking possession of or controlling in some form the property which is to be appropriated, cannot amount to an actual ■and complete appropriation. In Benedict v. State of New York (120 N. Y. 228), which related to the overflow of plaintiff’s lands, caused by a permanent dam erected across Black river for canal purposes, it was held that the land was appropriated when the dam was completed and the water in the river raised, and that the Statute of Limitations against the plaintiff’s claim for damages commenced to run from that time. A similar rule is laid down in Mills on Eminent Domain (§ 310), citing Call v. Middlesex (2 Gray, 232).

At the time of the conveyance by Kent, nothing had been done by the State to interfere with or control his possession and use. A flow line of a proposed dam had been run some ten years before ;and intermittent efforts toward building a dam had been going on. No notice of appropriation had then been served on Kent, and I fail to see how, within the rule of the Waller case, Kent at that time had any claim for damages against the State for any taking of his land. The filing of a map alone did not accomplish that result. (Ten Broeck v. Sherrill, 71 N. Y. 276, 279.) The maps that are presumptive evidence of appropriation under section 6 of chapter 451 of the Laws of 1837 are maps of completed canals. (§ 4, art. 1, tit. 9, chap. 9, pt. 1, R. S. [8th ed.] 692.)

By chapter 336 of the Laws of 1884, amended by chapter 118 ■of 1888, it was provided that, in the construction or improvement of any canal or feeder whereby the Superintendent of Public Works shall appropriate private lands or waters, the Superintendent shall serve upon the owners and occupants a written or printed notice of such appropriation containing an apt and sufficient description of ■.the lands or waters appropriated. Provision was made for recording the notice with proof of service thereof on the owners or occupants in the clerk’s office of the county where the lands were situated and the owner had two years from the time of such service within which to file his claim for compensation. The notice which was served in this case by the Superintendent in accordance with the act was dated on the 14th day of September, 1892, and stated that the Superintendent “has appropriated certain lands,” etc., referring to a map annexed thereto, and it further stated that the Superintendent “ having made such appropriation, now enters upon said land and condemns the same for the purposes provided for in chapter 494 of the Laws of 1892, and assumes control and ownership of the same for and on behalf of the State of New York.”

This notice, it may be, did not conclude the State as to the date of the appropriation or entry. It was, however, the act of the officer charged with the duty of making the appropriation, and was his first act towards taking actual possession from the owners. Up to that time he had not assumed to control the property or its possession at this locality.

It is argued that the act of 1891, providing for the clearing of the flow ground covered by the reservoir, was in effect an appropriation by legislative act, and was prior to the claim of the appellant, as it was passed and took effect before the contract from Kent to the appellant’s predecessors. The act, at most, was an authority to the Superintendent to appropriate, but was not in itself an appropriation. It remained for the Superintendent to ascertain, as he afterwards did by additional surveys, the boundaries of the flow ground. Until that was done and the land taken possession of, the appropriation under the act was not complete. An entry upon the site of the dam and commencing to there construct the dam did not amount to a taking possession of what might be the flow ground a mile above, and it was not so designed or understood by the Superintendent.

We, therefore, conclude that at the time the predecessor of the appellant purchased its property of Kent and built its embankment, the property had not been appropriated by the State.

But it is said that Kent and his grantees knew of the location of the flow line of the proposed reservoir and that work was being done in the construction of the dam, and that, therefore, the railroad company took nothing by its purchase from Kent, or at least has no claim for damages.

In Forster v. Scott (136 N. Y. 577) it was held that the provision of the New York Consolidation Act which declared that no compensation should be allowed to the owner of the land taken for a street for any building erected or placed thereon after the filing of a map of the proposed street as prescribed by the terms of the act, was unconstitutional. It was an illegal restriction upon the right of the owner to build upon his lot. A like view was taken in Matter of the Mayor (24 App. Div. 7). In Mills on Eminent Domain (§ 316) it is said that owners have a right to improve their own property, notwithstanding a line of public improvements has been marked out, unless such improvements were made in bad faith.

The principle of the Forster case seems to be applicable. The rear son would seem to be that as long as the owner cannot compel the other party to act or complete a pending proceeding, he should not himself be restrained from the ordinary use and control of his property. (See Corporation, etc., v. Mapes, 6 Johns. Ch. 46, 50 ; Matter of Widening Wall Street, 17 Barb. 617, 642.)

It is further claimed that the appellant and its predecessors, in locating the roadbed and embankment and building the same across Black river, violated the provision of section 17 of chapter 276 of the Laws of 1834 in not obtaining the written consent of the Superintendent of Public Works to such crossing. This is on the theory that the Black river is a canal feeder belonging to the State. If at that time the land had been appropriated for a reservoir, as claimed by the defendant, then very likely the reservoir with the river at that locality would be deemed a canal feeder. If the land was not then appropriated, and the question was whether the Black river, before the construction of the reservoir, was at that locality a canal feeder, there may be some doubt whether the river in its original condition became a canal feeder simply because it was one of the. sources of the water gathered and impounded in the pond below. Assuming, however, that it was, the question is whether the statute referred to is applicable.

Chapter 276 of the Laws of 1834 is entitled “An act to incorpoate the Medina and Darien Railroad Company.” It contains the usual provisions of such an act, and then comes section 17, which is as follows:

“ § 17. The canal commissioners are hereby invested with a general and supervisory power over so much of any railroad as passes over any canal or feeder belonging to this' State, or approaches within ten rods of such canal or feeder, so far as such power may be necessary to preserve the free and perfect use of the canals or feeders of this State, and necessary for making any repairs, improvements or alterations in the same; and said company shall not construct their railroad over or at any place within ten rods of any canal or feeder belonging to this State, unless said company shall lay before the commissioners aforesaid a map, plan and profile, as well of the canal or feeder, as of the route designated for their railroad, exhibiting distinctly and accurately the relation of each to the other, at all the places within the limits of ten rods, as aforesaid; and shall thereupon obtain the written permission of said canal commissioners with such conditions, instructions and limitations as, in the judgment of said canal commissioners, the free and perfect use of any such canal or feeder may require.”

In the General Railroad Act of 1850 (Laws of 1850, chap. 140 § 28, subd. 5) there was a provision that “ every company formed under this act shall be subject to the powers vested in the canal commissioners by the seventeenth section of chapter two hundred and seventy-six of the session laws of eighteen hundred and thirty-four.” In 1890 (Chap. 565) section 28 of the act of 1850 was repealed, but the general provision in the 1st clause of section 17 of the act of 1834 was, in substance, embodied in section 13 of the Railroad Law (Chap. 565 of 1890). In the Canal Law (Laws of 1894, chap. 338, § 25) the provision of section 17 of the act of 1834 was, in substance embodied with the modification that the provision requiring the written permission of the officer in charge of the canals was made applicable to all railroad corporations. Section 17 of 1834 is among the acts repealed by the Canal Law.

So that, apparently, at the time the railroad of the appellant was built across the river, as well as at the time when the railroad company that built it was incorporated, the only law requiring the written permission of the Superintendent of Public Works was section 17 of the act of 1834. It will, however, be observed that the provision in that section requiring written permission as a condition precedent applies only to the corporation created by the act. The expression “and said company” could refer only to that corporation. There was a reason for making such a condition as to that corporation, as ■by the general route it was authorized to adopt it might pass near -or over a canal or feeder then existing or contemplated in that vicinity.

No question is made in the present case as to the general supervisory power of the Superintendent.

We are of the opinion that the failure of the constructing corporation to obtain the written permission of the Superintendent before carrying its track across the Black river is not a bar to the appellant’s claim.

We, therefore, conclude that the ap23ellant is in a position to recover its damages properly chargeable to the State upon the basis of an appropriation subsequent to the construction of the railroad. The appellant suggests that the damages can be fixed by this court. We think that there should be a new trial.

All concurred, except Putnam, J., not sitting.

Judgment reversed, new trial granted, with costs of the appeal to the appellant. 
      
      
        Sio.
      
     