I dissent from the decision about to be made. I concede that the power conferred upon the state engineer, to appropriate such lands as in his judgment he deemed necessary for the purposes of the work in the improvement authorized by the statute, involved the exercise of his judgment and discretion and could not be delegated unless such delegation was authorized by statute. It is at least doubtful whether under section 8 of the Canal Act the state engineer was not authorized to delegate the function to his deputy, for it was provided that such deputy might, under the direction of the state engineer, "perform on the work of improvement authorized by this act all the duties of the state engineer except as commissioner, trustee or member of any board." In fact, the great mass of appropriations of land for the new canal have been thus made. The length of the canal must be about 350 miles and the number of separate pieces of land to be appropriated for its construction very numerous. It would seem that practically it would be difficult for the state engineer to examine personally the necessity or the propriety of the acquisition of each piece of land required for the improvement. However that may be, in the case before us the state engineer personally, and under his own hand, certified the map showing the appropriation of the claimant's property to the superintendent of public works and thereby ratified and approved the appropriation made by his deputy. It seems to me too narrow and technical a construction of his action to say that he certified to the superintendent of public works merely the map, not the certificate of appropriation, for unless the land was appropriated he had no duty to certify to the superintendent anything on the subject. The appropriation of the claimant's factory property seems to have been very ill-advised, but all the steps required by law were taken by the state officers, and the statute provides that the notice served by the superintendent of public *Page 422 works on the landowner shall be "conclusive evidence of such appropriation and of the quality and boundaries of the lands appropriated." I think the landowner has the right to rely on the notice so served. It seems unreasonable to require a landowner, possibly from a most remote part of the state, to visit the capitol, examine the records in the offices of both the state engineer and the superintendent of public works and, if the second point in the opinion of the majority of the court is correct, not only to examine the action of the canal board but also to determine at his peril whether any appropriation made by the engineer and commissioner of public works would or would not involve an increase in the cost of the work. Of course, this is said in the absence of collusion between the state officials and the claimant, a fact which has not been found, though the appropriation of the claimant's land seems to have been unnecessary. The claimant having erected structures on its land was not, in the absence of some special statute, entitled to the lateral support of the adjacent land owned by the state. (Dorrity v. Rapp, 72 N.Y. 307.) Our attention is called to no such statute, and where special statutes on the subject have been enacted, as in the case of the cities of New York and Albany, the duty of one, making excavations on his own land below the prescribed depth, to support the structures of his neighbor is dependent on the neighbor giving him permission to enter upon the land for such purpose. Nevertheless, there appears to have been so much question on the matter, that subsequently the canal was shifted to the east so as not to affect the plaintiff's building.
There is also to be said that a subsequent excavation on the claimant's land might have undermined the structure of the canal, and to guard against this danger it might be necessary to appropriate lands lying outside of the limits of the structure itself. What, however, were the *Page 423 motives of the state authorities, unless there was collusion between the parties, the claimant was not bound to know and if it had inquired it could not have learned. It could not require the state engineer to say why he appropriated the lands or examine him on oath as to his reasons therefor. I think, therefore, that the validity of the plaintiff's claim depends on the question whether the appropriation of its land was collusively made. That is a question of fact which must be determined by the trial court, and for this reason the judgment should be reversed and a new trial granted.
GRAY, VANN and WERNER, JJ., concur with HAIGHT, J., and HISCOCK, J., concurs in result; COLLIN, J., concurs with CULLEN, Ch. J.
Judgment affirmed.