November 16th, 1909, the state engineer, pursuant to the provisions of chapter 147 of the Laws of 1903, entered upon certain land of the relator, and took possession of the same for the purposes of the improved Erie canal; a map of said premises was made by him and filed in his office and a duplicate thereof, duly certified, filed in the office of the superintendent of public works, who thereupon served on relator the notice *Page 105 required by the statute and complied with the remaining provisions of the law. Immediately the appropriation of the land of relator, described by metes and bounds, was complete, and the notice served was made conclusive evidence of the entire appropriation and quantity of land appropriated. The map so filed was evidence of title to the land appropriated in the state. (Carpenter v. City of Cohoes, 81 N.Y. 21.) The right of relator to recover compensation for the land so appropriated was recognized in the law of 1903, and the remedy prescribed for securing such compensation was by a hearing before the Court of Claims. The statute of 1903, as well as the General Canal Law of the state, contemplated and provided for the taking by the state of a fee title to the premises described in the notice and certified map.
In the construction of the canal the legislature has recognized and provided for "permanent" appropriation of lands for canal purposes, as contradistinguished from a "temporary" appropriation also provided for by statute, and provisions exist for the acquisition of water for the canals by a limited appropriation, but so far as I have been able to determine the proposition that the state by a permanent appropriation of land for canal purposes, and especially for the prism of the canal, obtains less than a title in fee simple to real property so appropriated, or that the appropriation by its terms is limited, has never been asserted.
The state having acquired a fee simple title to the land appropriated, the land could not be sold or disposed of, save after the abandonment of the same under the statute and as recognized under the law of 1903.
While it is true that a railroad company may construct its tracks across the canals under proper regulations imposed by the superintendent of public works, such permission, however, does not operate as a grant or easement to a railroad company of any interest in the prism of the canal. *Page 106
As to the power of the special examiner and appraiser, his authority was limited to an agreement with the relator as to the value of the real property which had been appropriated and damages incident to such appropriation. He was an officer with limited powers defined in the statute, the terms of which the relator was bound to have knowledge of. As pointed out by Justice WOODWARD, who wrote in the Appellate Division, and in whose opinion generally I concur, that officer exceeded the authority conferred upon him, and subsequent action by the canal board seeking to ratify his act would not bind the state. The legislature did not confer upon him authority to dispose of canal lands and barter away the money and property of the state at his will. To justify the attempted bargain made by him with relator would enable such officer to exercise control of the lands and funds of the state without limitation, if his action should thereafter be approved by the canal board.
With reference to the lands contracted to be conveyed to relator, outside the prism of the canal, evidently for the purposes of its railroad, the record does not disclose ownership by the state of such strips of land about one-quarter of a mile in length on the northerly and southerly sides of the roadbed of relator. I do not think that we are justified in assuming that the state owns such lands. If, however, we shall assume ownership by the state of such lands, we must also presume that the state is the owner of such lands for canal purposes, which before any sale or conveyance of the same is made must be abandoned for canal purposes. If the land is not owned by the state, it cannot be acquired by the state for the purpose of conveying the same to the relator for railroad purposes under the guise of condemnation for the purposes of the canal.
The record also discloses action by the canal board repudiating certain provisions of the contract which, if valid, would operate as a breach or rescission of the contract on the part of the state. *Page 107
This proceeding is in effect an action for specific performance of a contract and, in my opinion, mandamus is not the proper remedy in such a case.
WERNER, HISCOCK, CHASE and MILLER, JJ., concur with COLLIN, J.; WILLARD BARTLETT, Ch. J., concurs in result; HOGAN, J., reads dissenting opinion.
Ordered accordingly.