Higgins v. . Reynolds

Johnson, J. Upon the facts established by the findings of the referee, this is a very plain case. The defendants had a contract with the State for the construction of section 62 of the enlarged Erie canal, and entered into a contract with the plaintiff by which they agreed to give him two cents per cubic yard for ail the stone taken from his land by them, as the same should be estimated by the engineers in charge of the State work. Before the summer of 1856, the defendants had taken and used in their work 18,585 cubic yards of stone from the plaintiff’s lands, south of and wholly outside the line of the lands appropriated for the canal enlargement, belonging to the plaintiff. Upon this state of facts alone no question could possibly be raised against the defendants’ liability to pay for these stone according to the price stipulated in the contract; but it further appears that there was an existing highway over the plaintiff’s lands, and partly within the bounds of the appropriation for the enlargement of the canal; and after this quantity of stone had been taken and used by the defendants, this highway was altered by the canal com *154 missioner in charge of that portion of the work of enlargement, and its location changed so as to cover that portion of the plaintiff’s land from which this quantity of stone had been taken. The bed or surface of the road, as thus changed, was also raised by embankment. It is claimed by the counsel for the appellants, that the stone in question having been taken from that portion of the plaintiff’s lands over which the highway, as altered, was located, and such altered highway having been constructed and made passable by the defendants, under and by the- authority and direction of the canal commissioner and the engineer in charge of that portion of the work of enlargement, both the land for the road and the stone taken therefrom were, as matter of law, appropriated by the State, and the plaintiff divested of all title, and had no property in the stone for which he could recover. It is to be observed that the referee has excluded all stone taken from the borrowing pits on the plaintiff’s land, which seem to have been appropriated by the commissioner for the construction of the enlargement, and also all stone used in the slope wall. There are two very conclusive answers to the defendants’ position. In the first place, according to the finding, the highway was not altered and its location changed to the place from which these stone had been taken, until after the defendants had taken them under their contract with the plaintiff, and used them in their work. The stone, according to this, when taken, clearly belonged to the plaintiff, and a subsequent appropriation of the land from which they had been taken for any purpose, could not operate to divest the plaintiff of his title to such stone previously taken and sold, nor of his right which had then accrued under his contract with the defendants. But in the second place, this land, over which the altered road was located, outside of the boundaries of the appropriation for the canal enlargement, was never appropriated in such a manner as to divest the plaintiff of his title. This portion of the plaintiff’s lands was never appropriated by the canal commissioners for the purpose of the canal enlargement. The portion appropriated for that purpose was indicated upon *155 the map made in pursuance of the statute, a transcript of which was used in evidence. (1 R. S., p. 218, § 4.) To that portion of the plaintiff’s land included within the boundary lines, as designated upon that map, the State had acquired the fee simple and the plaintiff had become divested of his entire title. (1 R. S., p. 226, § 52.) At least the plaintiff -claims nothing within those boundaries. The State had become vested with the plaintiff’s title to all the land, including that covered by the highway, within those boundaries. But it had not and has never acquired the title in fee simple, to any of the plaintiff’s lands outside of those boundaries. The statute (1 R. S., p. 221, § 19) authorizes the canal commissioner in charge of the work of constructing or repairing or -improving any canal, to discontinue or alter any public highway whenever it interferes with the proper location or construction of such work. Sections 20 and 21 provide the manner and form in which such discontinuance and change of location shall be made. But in exercising this power of altering a highway, the canal commissioner obviously does not exercise the power of appropriating lands within the meaning of the statute, so as to divest the owner of his title and vest it in the State. ISTo power is given to a canal commissioner to appropriate lands for the mere purpose of a common highway. It is a power given to be exercised as subordinate or auxiliary, merely, to the main power to construct, repair or improve a canal. This auxiliary power is of the same nature and kind precisely with that exercised by highway commissioners in the discontinuance and alteration of highways; and the highway, when altered by the canal commissioner instead of the commissioner of highways, and changed to another location, would be nothing more nor less than a common highway as it was before. If any portion of the new location should fall within the boundaries of the appropriation for the canal, the title in fee simple to the land, as to such portion, would be in the State, but as to all other portions the title to the land would remain in the owner as before, subject to the public easement. The owner would no more lose his title to lands covered by a highway thus *156 altered and located, than he would to land covered by a highway laid out or altered in the usual manner. The title of the owner subject only to the easement, remains perfect not only to the land covered by the highway, but to all the material within its boundaries, except such as may be needed to build or to maintain the road. (1 R. S., p. 525, § 126; Jackson v. Hathaway, 15 Johns., 447; Cortelyou v. Van Brunt, 2 id., 357; Williams v. Kenney, 14 Barb., 629; 3 Kent. Com., 432,433.) The location of the highway, as altered by the canal commissioner, was not necessarily part of the land appropriated for the enlarged canal, and, as the referee has found, was not in fact embraced within the lines of such appropriation at the place where the stone were taken. The borrowing pits seem to have been appropriated for the purpose of obtaining earth for the embankments, but stone, as well, would be included in such an appropriation. But those pits were at a place different from where the stone in question were taken. The case is not open to review upon the facts, as there was evidence before the referee tending to establish all the facts found by him. If any of the findings are erroneous or defective, they should have been corrected before the appeal. The recovery was clearly right and the judgment should be affirmed. All the judges concurring, Judgment affirmed.