
    COURT OF APPEALS.
    In the Matter of the Petition of the United States for the appointment of commissioners, &c.
    
      The Harlem widening— Constitutional law— Constitutionality of chapter 147 of the Laws of 1876 in relation to the improvement of the Harlem river and Spuyten Duyvil creek, and, the various acts amendatory thereof, upheld.
    
    On an appeal from an order made by the supreme court denying a motion to vacate certain orders by which the commissioners of estimate and assessment were appointed to carry into effect an act entitled “An act granting to the United States the right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek, and for the construction of another channel from the North river to the East river, through the Harlem kills, and ceding jurisdiction over the same ” (Laws of 1876, chap. 147, as amended by chap. 345 of the Laws of 1879). The orders were made in the course of proceedings instituted by the United States through petition dated October 8,1879, addressed to the supreme court of this state, setting forth a desire to acquire certain described lands as necessary for the construction and use of the improvement, and other allegations required by the provisions of the statute relating thereto:
    
      Held, first, that while the federal government, as an independent sovereignty, has the power of condemning lands within the states for its own public use, it may lay aside its sovereignty and as a petitioner enter the state courts and there accomplish the same end through proceedings authorized by the state legislature. The state may delegate its power to the United States where the use is public and the convenience is shared by its own citizens. Lands may be taken for the use of the people of the United States, and it cannot prejudice the proceedings for that purpose that they are instituted by consent of the legislature of the state in which they lie, and in a way prescribed by it, made to conform to the regulations of its courts.
    
      Second.. The use for which the land is sought is a public one.
    
      Third. The fundamental doctrine is that private property cannot be taken for public purposes without just compensation. But this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel payment of his damages. This means reasonable legal certainty. The acts under which these proceedings are justified make such provisions.
    
      
      Fourth. The subject is well expressed in the title of the act of 1876: “ The right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek, and ceding jurisdiction over the same.” The act itself is limited to matters which relate to that subject, or which are implied in it and, are necessary to make it effectual, the acquisition of lands by purchase or compulsory proceedings, the manner of payment and the mode of acquiring means therefor. All these are incidental to or parts Of the principal matter and are material to the accomplishment of the general purpose (Affirming S. C., 66 How., 517).
    
      Decided May, 1884.
    
      Franklin Bartlett, for appellants.
    
      Samuel E. Lyon, for respondent.
   Danforth, J.

— This is an appeal from an order made by the supreme court (Lawrence, J.) denying a motion to vacate certain orders by which commissioners of estimate and assessment were appointed to carry into effect an act entitled “ An act granting to the United States the right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek, and for the construction of another channel from the Horth river to the East river through the Harlem kills, and ceding jurisdiction over the same ” (Laws of 1876, chap. 147, as amended by chap. 345 of the Laws of 1879.)

The orders were made in the course of proceedings instituted by the United States, through petition dated October 8, 1879, addressed to the supreme court of this state, setting forth a desire to acquire certain described lands as necessary for the construction and use of the improvement, and other allegations required by the provisions of the statute relating thereto (Laws of 1876, chap. 147, sec. 2.)

The appellants have a standing in court as persons whose lands are affected by those proceedings, and in their behalf the point is made that the acts in question are unconstitutional and void, because,

1. The right of eminent domain cannot be exercised by one sovereignty for the uses of another,” and, therefore, “ the state cannot condemn lands for the use of the general government.”

2. Because they are designed to take private property without making just compensation.

3. Because the title of the act offends article 3, section 16 of the Constitution, which provides that no local or private bill shall ’contain more than one subject, and requires that subject to be embraced in the title.

First. While the federal government, as an independent sovereignty, has the power of condemning lands within the states for its own public use (Cooley's Const. Law [5th ed.], 525; Kohl agt. U. S., 91 U. S. R., 367), we see no reason to doubt that it may lay aside its sovereignty, and as a petitioner enter the state courts, and there accomplish the same end through proceedings authorized by the state legislature. If the state may delegate its power to a private corporation of another state for the benefit of a canal located within its borders, as was held by this court In the Matter of Peter Townsend (39 N. Y., 171), so it may to an independent political corporation where the use is public and the convenience shared by its own citizens (Gelmer agt. Lime Point, 18 Cal., 229; Burt agt. Merchants’ Insurance Co., 106 Mass., 356.)

That the use for which the land is sought is a public one, has not only been determined by the legislature (Laws of 1876, supra; sec. 6 of 1880, chap. 65; sec. 5, as amended by sec. 1, chap. 214 of the Laws of 1883), but is also apparent. The river and the creek are within the state, in each the tide ebbs and flows; the improvement is beneficial, therefore, not only for the purposes of the general government in its control over navigable tide waters, but will also provide for our own citizens through an unobstructed waterway, means of easy transportation and communication between the North and East rivers. Therefore, whether we regard the principle which controls the exercise of eminent domain or the constitutions of the federal and state governments, there would seem to be no reason why the state should not accept the aid offered by the United States in carrying on a public work in which both are interested. The state, by its governor, might take possession of the necessary lands under the authority of the legislature, and by purchase, or through proceedings in the courts, deprive the owner of his title (Code, sec. 2104). So might the United States (Code, sec. 2119). It would be very singular that that which either might do, could nor, with equal propriety, be accomplished by both. But in face of all this the learned counsel for the appellant argues that the statutes before us (Laws of 1876 and 1879, supra) are not within the sphere of state powers, and in support of that contention cites Trombly agt. Humphrey (23 Mich., 481). In that case, however, the United States was not a promoter, and the damages when assessed were to be paid from the state treasury. It was held the state could not condemn lands for the use of the United States, or assess the compensation it should pay; that such appropriation and assessment must, therefore, be provisional and subject to its acceptance and ratification, and so the court refused to grant to the landowners a mandamus to compel the state treasurer to pay the sum awarded. This feature seems to distinguish it from the case before us, for here the United States is an actor; is itself moving to condemn the property in question, and has actually appropriated money towards the desired improvement (U. S. Statutes, vol. 50, pp. 158, 372; U. S. Statute of 1874, chap. 457; of 1875, chap. 134; of 1878, chap. 264; of 1879, chap. 101). In that the state undertook to act not for its own ends, but in order to turn the land when taken, over to the United States for light-house purposes, provided the federal government would receive it, “ so that,” as the learned commentator, who, as judge, took part in the decision says, “ the aid of the court was invoked, not to enable the United States to obtain lands it wanted, but to compel the state to pay for lands for the United States which were not wanted ” (Cooley’s Const. Law [3d ed], note to page 526). The effect of the decision was that the state could not condemn land for the use of the United States, so as to bind the federal government to make compensation.

In the case before us the legislature provides a method of compensation to the landowners independent of any action by the federal government in respect thereto.

Kohl agt. The United States (supra) is also cited by the appellants. That case decides that the United States may exercise within the states the power of a sovereign, and condemn land for its own use, by proceedings in its own courts, and is not compelled to resort to state courts.

Neither proposition is in issue here. That case does not hold that the federal government cannot, if it chooses, go into the state courts to secure the same end. Darlington agt. United States (82 Penn., 382), is also insisted upon by the appellants. The decision turned upon the construction of two statutes, one of the United States the other of the state. The validity of both was assumed. By the first, congress (17 U. S. Statutes at Large, 621) authorized the secretary of the treasury to acquire hy purchase, or if necessary by condemnation, “a suitable piece of ground in' the city of Pittsburg, for the erection of a court-house” and other government offices. By the other statute the state consented to such acquisition, and provided that if condemnation were resorted to the laws of the state applicable to such proceedings should govern, but provided that the United States might pay the costs and refuse to take the land, if in its judgment the compensation assessed therefor was excessive. Under this act a petition was presented to the state court by the United States through its attorney, in which these statutes were set forth, and also that three pieces of land had already been condemned and a fourth was wanted with a view of selecting one of them.” The court held upon appeal by its owner that proceedings for condemning the fourth site were not authorized by the act, and that in other respects the petition was insufficient. For this reason, and not for want of jurisdiction in the state, court or capacity in the suitor, all proceedings subsequent to the filing of the petition were set aside.

These cases, Trombly agt. Humphrey, Kohl agt. United States and Darling agt. United States (supra), do not aid the appellants, while Gilmer agt. Lime Point and Burt agt. Merchants' Insurance Company (supra) are opposed to their contention. In both proceedings for the condemnation of lands on the application of the United States were entertained by the state courts. Under the first premises were condemned for a fortification; under the second for a post-office. They accord with the views expressed by this court in the Townsend case (supra); are not opposed to those of Kohl agt. United States (supra), and contain, we think, a correct exposition of the law. If lands may be taken for the use of the people of the United States, it cannot prejudice the proceedings for that purpose that they are instituted by consent of the legislature of the state in which they lie, and in a way prescribed by it, made to conform to the regulations of its courts. Nor was the action of the legislature in this case without a precedent. By the Laws of 1847 (chap. 196) the state consented to the purchase by the United States of lands for the purpose of erecting a light-house, and provided that if the title could not be so acquired the land- might be taken and damages assessed by inquisition from the state court, in like manner as if it had been taken for the use of the people of the state, that contingency arose. Upon an application by the United States to our state court for a writ ad quod damnum to assess the owner’s damages, it was objected in his behalf, among other things, “ that it was not competent for the state to assign to the United State its eminent domain for any purpose foreign to the use of the state; ” but the contention did not prevail and the writ issued (United States agt. Dumplin Island, 1 Barb., 24).

General provision for such cases was also made by the statute (2 R. S., 111, chap. 14, art. 4), which provided for the assessment of the owner’s damages whenever lands were taken for the use of the United States by consent of the legislature of this state. A similar clause is also contained in our present statute (Code, sec. 2119). The one before us is equally within the power of the legislature to enact, and is designed for cases ipid to remove difficulties which the other did not provide for. The same principle, however, governs both.

Second. The fundamental doctrine, of course, is that private property cannot be taken for public purposes without just compensation. But this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel payment of his damages (Bloodgood agt. M. and H. Railroad Co., 18 Wend., 9; Lyon agt. Jerome, 26 Wend., 485; People agt. Hayden, 6 Hill, 359; Rexford agt. Knight, 11 N. Y., 308). This means reasonable legal certainty (Clapham agt. Gates, 54 N. Y., 146; Sage agt. City of Brooklyn, 89 N. Y., 189). Have the acts under which these proceedings are justified omitted to make such provision? The answer to this question depends upon the law as it existed when the motion was denied; that was on the 1st day of February, 1884. Ho land had then been taken, and the proceedings to that end were inchoate.

By the act of 1876 (chap. 147, sec. 4) it is made the duty of the commissioners to ascertain and determine the compensation which ought justly to be made to those owning or interested in the real estate appraised; and section 5 provides for a hearing of their report by the court upon notice to the parties interested, and an order, if it be confirmed, directing to whom the money is to be paid, but I do not find in it any provision indicating how the money is to be raised. By the amendment of 1879 (chap. 345, sec. 5), however, the commissioners are directed not only to ascertain the compensation to be made, but also “ the amount to be assessed upon the real estate benefited by the improvements and establish the area of real estate upon which the amount necessary to pay the awards and expenses of such proceedings shall be assessed by them.” Section 6 of the same act so amends section 5 of the act of 1876 as to provide for the collection of the assessment and payment of the awards to those entitled thereto, and a report to-the court for such action as to it shall seem meet. It is only after these things are done that the United States can take possession of the property or the owners be divested of. their rights.

In 1880 the act of 1876 was further amended (Laws of 1880, chap. 167); and in 1881 the last act was also amended (chap. 61 of the Laws of 1881) and the comptroller of the city of Hew York authorized to raise on the assessment bonds of the city the sum of $50,000, or so much as might be necessary to make up any deficiency in collection of the sums assessed under the statute relating to this improvement, and from the proceeds of the collections and these bonds pay all sums which had been awarded to persons interested in lands taken for it.

Further amendments were made in 1883 (Laws of 1883, chap. 214) and the comptroller of the city of Hew York was authorized to raise upon the assessment bonds of the city of Hew York a .sum not exceeding $200,000, and to pay therefrom the several sums awarded to the owners or parties interested in ¡the lands taken, or to be taken, for the purposes of said improvement, and declared that this being done the United States should be entitled to enter upon, take possession and use the lands and premises for the purposes of the improvement, and all persons who had been made parties to the proceeding should then be divested and debarred of all right and interest in the same. This is quite sufficient. The statute not only provides for raising the necessary money, but for payment of it to those interested before they can be requested to part with their property. Its payment is-made' a condition precedent.

If any doubt existed as to the force and effect of prior-statutes relating to this matter (Laws of 1876, chap. 147; 1879, chap. 345; 1880, chap. 65; 1881, chap. 61; 1882, chaps. 377, 410) it is removed by the one cited (Laws of 1883, supra), and by which they are amended-. Up to the-time of the passage of that act no person, was- aggrieved,, no-land had been taken, and so far as appears1 no one complained! of any wrong. However defective the original act might be-in respect to the method of compensation the- defect might", be waived by persons interested (In re Application of Cooper to Acquire Lands, 93 N. Y., 507), or rights- of- landow-nersrelinquislied by their consent. Until, their property was-interfered with there could be no ground, of complaint, and- if at-that time compensation was provided for the- ground would: be taken away. So far as the question now before- us is concerned it in no degree affected the legality of the-proceedings under the statutes for the appointment of commissioners or their proceedings. By none of them could any constitutional right be impaired.

Third. I have already set out the title of the act of 1876. It is not fairly open to- the objection urged against it. The subject is well expressed: The right to- acquire the right of way necessary for the improvement of the- Harlem river and Spuyten. Duyvil creek, and conceding jurisdiction over the same.”’ The act itself is limited to matters which, relate to that subject, or which- are implied ins it and are- necessary to make it effectual, the- acquisition of lands by purchase or compulsory proceedings,, the manner- of payment and- the mode of acquiring means therefor. All. these- are- incidental to or parts of the principal matter- and: are material to- the-accomplishment of the general, purpose. This is sufficient. (Brewster agt. City of Syracuse, 19 N. Y., 117; In re Mayer, 50 N. Y., 504; Newsdorf agt. Duryea, 69 N. Y., 557; In re Department of Public Parks, 86 N. Y., 437).

Some other objections to the validity of the statutes are made by the learned counsel for the appellants. They assume that the indebtedness created by the city of New York under the bonds issued will be for other than its own purposes. The whole argument of the judges in Townsend's case (supra) is to the contrary and applies here. In that case an artificial canal was deemed a proper object for the exercise of the right of eminent domain, because it increased the means of intercommunication and so became of interest to every business .man .and owner of property in that city, while the improvement now in question will, if carried out, render useful a .continuous navigable stream within its own borders, thus .adding to its producing power and the value of all land within .those limits.

No other portion of the appellant’s argument requires notice. It discloses no error in the order appealed from, and it should therefore he affirmed.

All concur.  