Ontario Knitting Co. v. State

Swift, J. This claim was filed to recover the value of certain real estate, including water rights of the claimant, situate in the city of Oswego, N. Y., which claimant alleges was appropriated by the State for the purposes of the Barge canal. The State denies that any legal appropriation of claimant’s property was made. This contention on the part of the State presents two questions to the court. First. Was the property of claimant legally appropriated by the State ? Second. If it was, what was the fair market value thereof at the time of such appropriation? It is conceded that a notice of appropriation with the accompanying map and description of the property was served upon claimant and filed as required by law, and that all formalities required by statute were complied with, January 8, 1908. . The question of whether this constituted a legal appropriation of claimant’s property requires a construction of the Barge Canal Law. Section 4 of that act, as it existed on the 8th day of January, 1908, reads as follows: “ The state engineer may enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals, and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary. An accurate survey and map of all such lands ¿hall be made by the state engineer who shall annex thereto his certificate that the lands therein described have been appropriated for the use of the canals of the state.” That on the filing and service of the notice, as provided by the canal law, the appropriation shall be deemed complete, and such notice so served shall be conclusive evidence of the entry and appropriation, and of the quantities and boundaries of the land appropriated.” — 147 — Claimant contends that this section of the Canal Law makes the State Engineer the sole arbiter as to the lands to be taken and that the judgment of the State Engineer in that regard, when once exercised, no matter how, is final and conclusive upon the State. It is true that the State Engineer is a constitutional officer, and that the State, when it acts must do so through a duly authorized agent. It can act in no other way. There is no doubt that the State Engineer acted -as the agent of the State in acquiring lauds for canal purposes. LIow far is the State bound by the acts of its authorized agents? The same law applies to the State that applies to an individual. A .principal is bound by the act of an agent acting within and in accordance with the authority conferred upon him, and no further. Litchfield v. Bond, 186 N. Y. 66. I think section 4 and section 6 of the Barge Canal Act should be read and construed together. Section 6 is as follows : “All the work herein authorized shall be done by contract. Before any such contract shall be made, the state engineer shall divide the whole work into sections, or porlions, as may be deemed for the best interests of the state in contracting for the same, and shall make maps, plans and specifications for the work to be done, and materials furnished for each of the sections into which said work is divided, and shall ascertain with all practicable accuracy the quantity of embankment, excavation and masonry, the quantity and quality of all materials to be used, and all other items of work to be placed under contract, and make a detailed estimate of the cost of the same, and a statement thereof with the said maps, plans and specifications when adopted by the canal board shall be filed in the office of the superintendent of public works, and publicly exhibited to every person proposing or desiring to make a proposal for such work. The quantities contained in said statement shall be used in determining the cost of the work, according to the different proposals received, and when the contracts for any such work are awarded, any such statement with the maps, plans and specifications, and all other papers relating to such work, and which may be necessary to identify the plan — 148 — and extent of the work embraced in such contract, shall he filed in the office of the state engineer, with a certificate of the superintendent of public works stating the time and place of their exhibition. Ko alterations shall be made in any such map, plan or specification, or the plan of any work under contract during its progress, except with the consent and approval of the superintendent of public works and the state engineer, nor unless a description of such alteration and such approval he in writing and signed by the parties making the same, and a copy thereof filed in the office of the state engineer. Ko change of plan or specification which will increase the expense of any such work, or create any claim against the state for damages arising therefrom, shall he made, unless a written statement setting forth the object of the change, its character, amount and the expense thereof is submitted to the canal hoard and their assent thereto at a meeting when the state engineer was present is obtained.” This section 0 requires the State Engineer, among other things, to make maps, plans and specifications for the work to be clone. Plans were made for the construction of tho Barge canal opposite claimant’s property in 1907. The first plan proposed a building of a wall which would serve as an underpinning for part of the westerly wall of claimant’s mill and the easterly wall .of the canal. The easterly line of land to be used for the Barge canal, as shown by this map, was the easterly blue line of the old canal and did not purport to include any of claimant’s property. The plan of making the easterly wall of the canal the westerly wall and underpinning of claimant’s property was eliminated, as shown hv sheet Ko. 32, of Exhibit 106. These plans, as shown by sheets 1, 5, 32 and 35 of Exhibit 106, were approved by the Canal Board on May 28, 1907, and filed in the office of the Superintendent of Public "Works June 2'5, 1907, and, as approved and filed, did not interfere with the claimant’s property, hut put the canal westerly of-it. 'Contract Ko. 35, for the construction of the canal adjacent to claimant’s property, was made September 16, 1907. — 149 — In this contract the plan of underpinning claimant’s property was eliminated. The State Engineer made the map, plans and specifica*tions which accompanied and were a part of contract Eo. 3'5. The construction of the canal at that point leaves the tow-path of' the old canal westerly of claimant’s property, and the easterly bank of the Barg© canal is about twelve feet- westerly of claimant’s property. The 'State has not and will not, in the construction of the Barge canal, occupy or use any of the property of claimant described in the notice of appropriation served upon the claimant. The claimant’s property is useless to the- State for the purposes of the Barge canal, and never was necessary for that purpose. Contract Eo. 35 was let in September, 1907. Work was in progress under this contract at the time of the alleged appropriation. I do not- think that section 6 should he held to apply only and solely to the work to he done. It has a broader interpretation. It includes the general plan of construction under the contract in every sense, and was intended to protect the State from unauthorized changes in the plans after a contract had been made and work was in progress under it. Any change of plan which would increase the expense of any such work, or create any claim against the State for damages arising therefrom, could not he made, after the contract had been executed and work begun under it, except in the manner provided by law, which required the approval of the Canal Board at a meeting when the State Engineer was present. The alleged appropriation of claimant’s property was in January, 1908. I am of the opinion that this was a change in the plan of constructing the canal, as it existed when contract Eo. 35 was made and work commenced. The plan when this contract was let did not contemplate or provide for the taking of any of claimant’s property, and the plan of construction was outside of and westerly of claimant’s property. If the plans approved in May, 1907, by the Canal Board, did not contemplate the talcing of claimant’s property, then the taking of claimant’s property for the purposes of this work under contract Eo. 35 must have been a change or altera — 150 — tion of the plans first made, and under which work was in progress. This change or alteration never was approved or assented to by the Oanal Board. When the Superintendent of Public Works became acquáinted with the fact and knew of this alleged appropriation, he disapproved of the same; and the Oanal Board, so far as it was in their power, repudiated the change of plan in taking claimant’s property. This change certainly increased the expense of the work and created a claim against the State for damages arising therefrom. This claim under consideration for over $1,000,000 arises from such change. The claimant had notice that the Canal Board did not approve of the taking of this property while the mill was still in operation, and some portion of the mill was operated for a year and a half after the alleged appropriation. Great force is given by claimant to section 4 of the Canal Law, giving the State Engineer the power to take possession of, enter upon and use, for the purposes of the canal, such lands, structures and waters as shall in his judgment be necessary. The State has no power to appropriate the private property of a citizen beyond the necessities of the work proposed and could not delegate to any officer or agent a power it did not possess. The fact that the Barge canal is being constructed entirely outside of any of claimant’s property is conclusive proof to my mind that the taking of this property was not necessary for the purposes of this work. The judgment of the State Engineer in appropriating property must be exercis'ed in good faith and with sound discretion. Jerome v. Ross, 7 Johns. Ch. 315. In this case the plans had been made, contract let, and work was in progress under which claimant’s lands were not to be interfered with. It is true, there was some discussion as to taking a part of claimant’s property upon which to construct a wall which was to serve as an underpinning for a portion of the west wall of claimant’s property and to form the easterly wall of the canal, but this proposition was eliminated before the contract for the work was made. — 151 — What was there to call for the exercise of any judgment on the part of the State Engineer as to the taking of claimant’s property?. The work was progressing and has since progressed and will be completed, without the necessity of using any of claimant’s property. These lands were not needful or conducive to the prosecution of this work. I am of the opinion that the State Engineer could not, at the time this alleged appropriation was made, make any appropriation which would change the plan of contract "Ko. 35, increase the expense under it, or create a claim against the State without the approval of the Oanal Board. The claim should be dismissed.