
    In the Matter of the Petition of Thomas F. Gilroy, Commissioner of Public Works of the City of New York, under and in Pursuance of Chapter 490 of the Laws of 1883, and the Laws Amendatory thereof, on Behalf of The Mayor, Aldermen and Commonalty of the City of New York, for the Appointment of Commissioners of Appraisal under said Acts. Isaac Purdy, Appellant; Thomas F. Gilroy, Commissioner of Public Works of the City of New York, Respondent.
    
      Eminent domain — land taken for the new Groton dam—the authority extends to land necessary to protect the water supply from pollution — the act sufficiently pro'mdesfor compensation to the owners.
    
    Under the provisions of chapter 490 of the Laws of 1883, providing for the acquirement of lands for the new Croton dam in Westchester county, the decision of the aqueduct commissioners, as indicated in the filing of the map, plans, etc., provided for by said act, is final and conclusive as to the land necessary to be taken for the purposes of that act.
    Such commissioners were not confined to an area which would be overflowed with water by reason of the construction of the dam, but were authorized to include in the land taken land likely to be overflowed in extraordinary freshets, and land necessary to protect the water supply from pollution or injury.
    Such act is not unconstitutional on the ground that it provides for taking private property for public use without immediate compensation being made to the owners, coincident with the taking, as the provision for the issue of city bonds
    ■ to pay such damages amply protects the property owner whose land is taken under its authority.
    
      It seems, that the property owner is also sufficiently protected by the authority given to him by the act to maintain an action against the city of New York for the compensation awarded.
    
      Appeal by Isaac Purdy from a final order of the Supreme Court,- made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of December, 1896, appointing commissioners of appraisal in condemnation proceedings instituted under chapter 490 of the Laws of 1883, for the acquirement of lands for the new Croton dam in W estchester county.
    
      Richard L. Sweezy, for the appellant.
    
      Id. T. Dyhnan, for the respondent.
   Goodrich, P. J.:

The act known as chapter 490 of the Laws of 1883 is entitled “An Act to provide new reservoirs, dams and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water.” It appointed the mayor and certain other officials of the city of Yew York, and certain other individuals, aqueduct commissioners to carry out the provisions of the act. The commissioner of public works was directed to prepare plans, maps, etc., for the construction of a new aqueduct for. the city, “and for the construction of one or more dams and reservoirs to retain such water, and for the construction of such sluices, culverts, canals, pumping works, bridges, tunnels, blow-offs, ventilating shafts and other appurtenances as may be necessary to the proper construction, maintenance or operation of such aqueduct, dams and reservoirs.”

These plans and maps were to be filed and open to public inspection, and the aqueduct, dams and reservoirs were to be constructed in accordance therewith. This was done, and opportunity was given to all persons interested to be heard. Public notice was given, and, after the close of the hearing, this application was made for the appointment of commissioners of appraisal in accordance with section 6 of the act. Isaac Purdy, the owner of parcels numbered 507 and 514 on the map in question, filed an answer presenting two objections: 1st. That his land, proposed to be taken, was not acquired for or intended to be used in the construction, maintenance or operation of the dam or reservoir mentioned in the petition, and that, therefore, no authority existed in the act for the taking of the sameand, 2d, that the act was unconstitutional by reason of various facts alleged.

The issues thus raised by petition and answer were tried at Special Term, where a decision was made containing the following : “ That the acquisition of the real estate shown on said maps is necessary and required, and is intended to be used for the construction, maintenance and operation of the dam and reservoir mentioned in the petition herein.” The court thereupon appointed three commissioners of appraisal, and from this order Mr. Purdy appeals.

The petition was filed in October, 1896. In 1893, the Legislature had passed another act (Chap. 189, Laws of 1893), which provided that the commissioner of public works might, 'within three years of the passage óf the act,, take proceedings to acquire or take title to any real estate “ for the sanitary protection of all rivers and other watercourses, lakes, ponds and reservoirs in the counties of Westchester, Putnam and Dutchess, so far as the same now are, or hereafter may be, used for the supply of water for the city of Hew York.” It will be observed that the petition makes no reference to this act, and the proceedings were not taken in pursuance thereof, doubtless because three years had passed since the enactment .of it. So that the only authority to be considered on this appeal is that conferred by the act of 1883 and its amendments; and to this we must resort exclusively to ascertain the extent and limitation of the powers of the commissioners.

The act of 1883 (Chap. 490) provides (§§ 9, 10) that the commissioners of appraisal appointed by the court shall take, subscribe and file the oath prescribed by article 12 of the Constitution, providing for the faithful discharge of duty, etc., and upon such filing the mayor, aldermen and commonalty of the city of Hew York shall 'be and become seized in'fee of all those parcels of real estate which are, on the maps in the fourth section referred to, described as parcels, of which it has been determined by said aqueduct commissioners that the fee should be acquired.”

The decision of the aqueduct commissioners, as indicated in the filing of the maps, plans, etc., is final and conclusive as to the lands necessary to be taken for the purposes of the act. They were not confined to an area which would be overflowed with water by reason of the construction of the dam across the course of the Croton river. They were authorized to take whatever area was necessary for the proper construction, inaintenance and operation of such aqueduct, dam and reservoir. This includes the taking of lands which were likely to be overflowed even in extraordinary freshets, or which were necessary to protect the water supply from pollution or injury.

The testimony shows-the following facts: The map contains a red line representing the boundary line of the land taken for the of the works; inside this line are two dotted lines, the one representing the ordinary high-water mark and the other the extreme high-water mark, as they were when the darn was completed. These lines represent what may be termed a “ contour line ” or water-level line.- Between the extreme high-water mark line and the red boundary line is situated the land which is taken “ for the purpose of securing the waters to be contained in the reservoir from pollution around the borders, and for the purpose of securing a certain amount of property over which the city will have jurisdiction, so as to prevent nuisances from establishing themselves near the flow line,” as appears by the testimony of the chief engineer of the aqueduct commissioners. He adds: “I consider it a matter of absolute second only to the procuring of the water itself, in view of the fact that the aqueduct commissioners, in whose service I have been for the past 12 years, they must procure pure water for the city of Hew York, and that purity could not be procured or maintained having an ample margin of land outside of the high-water line of the reservoir. Q. Has such a margin always been maintained in Croton water sheds when reservoirs have been constructed ? * * * Q. Have such zones always been maintained? A. They have, except in cases of the old Croton lake, 60 years ago, where it was not always done, and we find the bad results of it, and have every year since. Q. In your opinion as an engineer, have you, in this, proceeding, delineated upon this map any moré property than you deem to be necessary for the protective purposes you have mentioned ? A. In no case whatever.”'

We hold, therefore, that the taking of these lands was a proper exercise of authority, and that the city has acquired title to the fee of said lands.

The second contention of the appellant, namely, that the act is unconstitutional, because it takes private property for public use, without immediate compensation made coincident with the taking, is untenable. Whatever might have been my own opinion upon this subject, as an original proposition, the question is no longer a subject for discussion The principle is settled by abundant authority, but it is necessary only to cite Matter Appln. Mayor, etc., City of N. Y. (99 N. Y. 569), where the court unanimously concurred in the opinion of Finch, J., who said (pp. 577, 578): “ While it is not necessary, in advance of the taking, to pay to the landowner his compensation, it is necessary that the act which invades his ownership shall provide for a certain and definite and adequate source and,manner of payment. (Sage v. City of Brooklyn, 89 N. Y. 189.) This necessity is vital and- of the most essential character, since, if unheeded or disregarded, it transforms the right of eminent domain into a legalized plunder of the citizen. But this act does not so offend. It puts the public purse of the city behind the debt as the source of its payment. By section Í the municipality is required, within four calendar months after the confirmation of the report of the commissioners, to pay the compensation awarded to the parties interested, and if payment be not so made, those to whom if is due may, after demand, maintain an action against the city. FTothing in this record shows that the municipality has already reached the limits of its capacity to contract debt, .or cannot legally incur the new liability. There is no ambiguity or uncertainty about this provision, and the citizen is not turned over to the blind remedy of uncertain and complicated assessments and a devious and doubtful litigation.”

The act in question provides, within the language of this opinion, for the issue of bonds sufficient to pay all damages caused by the taking of property, and this is ample protection for the appellant within the authorities.

' The order must be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      Sic.
     