Calking v. Baldwin

By the Court, Marcy, J. To determine the principles of law applicable to this case, we must first ascertain the character of the act of the legislature under which the defendant justifies. The demurrer admits the injury complained of, and there is no dispute about the right to compensation. If this be a private act as contradistinguished from a public act, the law which was applied to the case of Crittenden v. Wilson, (5 Cowen, 167.) must govern. The plaintiffs are not in such a case confined to the remedy given by the act, but may proceed by action according to the common law. But if the work authorized by the act be of a public character, the case is altered, and the compensation which individuals are entitled to receive for injuries occasioned by it must be sought in the way pointed out by the act, and not otherwise. A critical inspection of the act will settle the question as to the nature of the work. The power to erect the dam it is true is given to an individual, his heirs and assigns, but I apprehend that the nature of the work is not determined by that circumstance. The execution of a public improvement may as well be committedTo an individual or to a company as to public agents. What is the declared object of the statute 1 It is the construction of a dam at the head of M’Harrie’s rift of such height as shall be necessary for improving the navigation of the Seneca river. It is to be constructed in a particular manner pointed out in the act so as to admit of the passage of rafts over it. In addition to this, a canal and lock are to be made for the passage of the largest sized boats [671] on the river. The river is a public highway. The objects, so far as I have detailed them, are all of a public nature; but it is not to be expected that either an individual or á company would make a public improvement without provisc f r ion tor remuneration oí the expenses which must necessarily attend the operation. The act secures certain privileges to Mr. Baldwin and his heirs or assigns. It allows him to exact toll on property passing the lock and canal, and to take the water for mills and hydraulic works from the dam; and he is made liable for all injuries which the owners of the lands in the vicinity of the work may sustain thereby. There is nothing in his rights, privileges or duties, that distinguish this work from that made by the Delaware and Hudson Canal Company or the board of commissioners for the construction of the Albany basin. Both these associations have rights and privileges secured to them which are supposed to be quite sufficient to counterbalance the burdens and responsibilities which they necessarily assume by embarking in the enterprise ; but these rights and privileges do not make the undertaking a private matter. The improvement authorized by the act under consideration, has all the characteristics usually marking the distinction between private and public works. I cannot hesitate to pronounce it a public work. The principles settled by the court for the correction of errors in the case of Rogers v. Bradshaw, (20 Johns. R. 735,) applied to this case are fatal to the right of the plaintiffs to sustain this action. I think the statute authorising this work is as much a protection to the defendant as the canal laws are to the agents of the state for acts done by them in prosecuting those great works of internal improvement. The legislature have prescribed the mode in which the damages of the plaintiffs shall be ascertained, and in that mode only, can they properly seek compensation. The rule of construction, that if a statute gives a remedy in the affirmative, without a negative expressed or implied, for a matter which was actionable at common law, the party is not deprived of his common law remedy, but may elect to take it or that offered by the statute, does not I apprehend apply to acts done by the express authority of the legislature for a [672] public purpose. Such certainly has not been the doctrine appjjec[ to suits against our public agents employed on our works'of internal improvement, and such is not the doctrine that I am willing to apply to this case. The second point made on the part of the plaintiffs supposes, that the defendant by neglecting to have the damages assessed as the law directs is in default, and therefore is liable to be proceeded against according to the common law. Where either party has power to carry into effect the statute remedy one cannot be in default more than the other for not beginning first. The act under which the decision in the case of the People v. The Hillsdale and Chatham Turnpike Company, (2 Johns. R. 190,) was made, is not like this, There the company alone had the right to have the damages assessed; here, the right is reciprocal to both parties. Judgment for defendant on demurrer, with leave to plaintiffs to reply on payment of costs.