
    Hallam Eldridge, Appl’t, v. City of Binghamton, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1886.)
    
    Canals—Street—Eminent domain—Pee of lands to be used for a canal—Right of state to acquire—The state’s right to authorize SUCH LANDS TO BE USED AS A PUBLIC' STREET—CONSTITUTIONAL LAW— 1 R. S., 225-226, §§ 46-52—Laws 1878, chap. 391, constitutional.
    Thi_s state, in 1838, under the authority of Laws of 1833, chapter 32, through its canal authorities, took possession of certain lands for the use and purposes of the Chenango canal, by the usual regular steps, to obtain the right to the land, under a condemnation ancj, appraisal by the car al appraisers, according to the provisions of sections 46 and 52 of 1 Revised Statutes, 225-226. In view of the advantages and benefits likely to accrue to the residue of the property by reason of the canal facilities, it allowed no money compensation for the lands. Under Laws of 1878, chapter 391, the right to take possession of said canal lands ior the purpose of hying out a street, was given by the state to the oily of Binghamton, and under the authority conferred by the act and a resolution of the common council, the city entered upon and took, and still retains possession of the same. This action is brought by the plain;iff, who, as heir or assignee, had acquired all the rights of the pei sons in whom the title to those lands was vested at the time the state appropriated them, to recover the possession thereof. Held, that as the acts under which the state acquired an estate in fee simple to the lands were const.tutioi.al and valid, and the city, by the act of 1878, acquired the right to enter upon and use the same as a oublic street, the action could not he maintained.
    Appeal from a judgment entered upon a verdict rendered in favor of the defendant at the Broome county circuit and from an order denying a motion for a new trial made on the judge’s minutes.
    By chapter 32 of the Laws of 1833, the legislature authorized the taking of lands for canal purposes, the canal to be known as the Chenango canal. Under said statute, in 1838, certain lands were taken for the uses and purposes of said canal. The grantors, etc., of the party who is plaintiff herein owned certain lands at that time, part of which were taken for said canal. The canal commissioners estimated the value of the land and other property taken at .$2,500, and adjudged that the land remaining to plaintiff’s grantors would be benefited by said canal to a like extent, and so allowed no compensation for the land except the benefits. The plaintiff’s grantors duly filed claim for damages within the time limited by the statute. The state continued to use the land taken for a canal until 1878, when an act of the legislature (chapter 391) was passed, by which the state released to the city of Binghamton the portion of said canal running through that city, and authorized it to take possession thereof and convert the same into a public street to be known as State street. The act provided, however, that “nothing in this act contained shall affect in any way the legal rights of individuals.”
    Pursuant to the authority given to the defendant by said act, the city, by virtue of a resolution of its common council, entered upon said canal and converted it into a street without any notice to any one and without exercising the right of eminent domain, the only steps taken being the resolution above referred to, and the making a map of the street. Part of the canal so taken was constructed upon land acquired, as above stated, from plaintiff’s grantors.
    
      George Whitney, for app’lt; A. D. Wales, for resp’t.
   Follett, J.

Sec. 46. “When any lands, waters or streams, 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 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., 225.

Sec. 52. “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.” 1 R. S., ‘226.

It is conceded that an estimate and appraisement of the damages for taking the lands sought to be recovered in this action, were made and recorded in the year 1838. Statutes authorizing the benefits inuring to the lands remaining, and adjacent to the lands taken, to be estimated and the value of such benefits set off ■ against the value of the lands taken, have been held constitutional. Livingston v. The Mayor of New York, 8 Wend., 85; Betts v. The City of Williamsburg, 15 Barb., 255; Long Island R. R. Co. v. Bennett, 10 Hun, 91; Hills’ Em. Domain, § 151, and cases there cited.

It has been held that sections 48 and 49 (1 R. S., 226), providing that the state acquires the fee simple of lands appropriated without making any compensation, in case the owner fails to file his claim within one year, are constitutional. Birdsall v. Cary, 66 How. Pr., 358, and cases there cited. If the sections last cited are constitutional it is difficult to see why sections 46 and 52 are unconstitutional. The lands taken for the Erie canal were appropriated under a like statute (sec. 3, chap. 262, Laws 1817), and so were the lands for all of the canals of this state. This court is bound by the cases cited, and only the court of last resort can overthrow the multitude of titles resting on the statutes cited and similar statutes.

For forty years the state was in possession of the land in question, claiming to own it in fee simple, and thereby it acquired title. Birdsall v. Cary, supra.

The judgment is affirmed, with costs.

Harden,‘"P. J., and Boardman, J. concur.  