[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 173 That the State may, in virtue of its right of eminent domain, take private property for public use upon making compensation therefor, is not questioned on this appeal.
That, for the ascertainment of such compensation, where it is not paid by the State, in all cases (except the case of "private roads") it is competent to proceed by application to the Supreme Court, and the appointment of three commissioners to be appointed by that court, to determine the same, is not and cannot be disputed (Const. art. 1, § 7; Act of April 11, 1855; Sess. Laws, ch. 296, p. 506).
It is far too late in the history of legislation and of adjudication, in this country and in this State, to claim that private property may not be taken for what are in common parlance called public improvements, such as railroads and canals, with their incidental and reasonable conveniencies and appurtenances, notwithstanding the work is done by individuals or a corporation, who are to derive a pecuniary benefit therefrom, if the legislature deem it for the public interest. *Page 174 (Bloodgood v. Mohawk and Hudson River Railroad Co., 18 Wend. 9.)
If then the use is public, and the power to take and appropriate may be conferred upon individuals or corporations, I know of no restraint upon the legislature in the selection of the parties to whom the power to take and apply shall be delegated. Certainly the Constitution contains neither prescription nor limitation. It is clear, I think, and has so been uniformly held ever since the case above referred to, that as to the instrumentality employed and the manner in which the property shall be taken and applied to the public use, the legislature are the sole judges. Their supreme power over the subject is qualified only by the three particulars: the use must be public; compensation must be given; the amount required as compensation must be ascertained by a jury or by not less than three commissioners appointed by a court of record.
It has, indeed, been said, that the right of eminent domain implies the right in the sovereign power to determine the time and occasion and as to what particular property it shall be exercised. (Heyward v. The Mayor, 7 N.Y. 325.) This can hardly be supposed to import, that the legislature can, by its mere declaration, override the Constitution; that, by declaring the use to be public, when it is within the Constitution a private use, it can authorize the property of one citizen to be taken from him and given to another, for a compensation to be ascertained in the manner above stated: but only that, where the use for which the property is desired is in its nature public, the legislature are the supreme and final judges of the question whether the public necessity or benefit is such as to call for the exercise of the power; whether the time is a fitting one; what particular property may be taken, and in what manner in respect to the instrumentalities to be employed for the purpose, — whether State officers, individuals or corporations. All these are purely matters of discretion, within the exclusive cognizance and jurisdiction of the legislature, and in those matters I apprehend no court can review its action. *Page 175
There is nothing, then, in the Constitution, that requires that the right to construct a railroad or a canal, or other public work, shall be conferred, and only conferred, upon our own citizens, or upon a corporation organized for the purpose, or upon a corporation specially created by the legislature itself. That is subject to legislative discretion.
Nor is there any thing in the Constitution which prescribes what control over the subject, after the appropriation to the public use, the legislature shall retain to itself, in order to secure the contemplated public benefits. That is left to the wisdom of the legislature. There are general rules of law, which may be invoked to prevent abuses, even though the use be not guarded by any express reservation of visatorial powers.
In this view, there is no constitutional inhibition which restrains our legislature from exercising the right of eminent domain, and condemning land to the public use, and employing, as an instrument to carry the appropriation to the public use into effect, an individual or a copartnership of individuals residing in this or in another State, nor from, in like manner, employing a corporation created by another State, for the like purpose.
The example cited to us, in which the New York and New Haven Railroad company, incorporated by the State of Connecticut, are authorized to construct their railroad through Westchester county, is an illustration, the legality of which cannot, I think, be questioned. And instances might be multiplied in which railroads have been constructed in part through or in States other than the State of their incorporation.
The act of our legislature authorizing such corporations to do the act, not only recognizes their legal existence, but, perse, makes them, in contemplation of the laws of this State, corporations pro hac vice; and their acts, done in pursuance of the authority, will be, not by comity alone, but by law, corporate acts.
What precautions shall be adopted to secure the appropriation of the property to the sole purposes intended, what *Page 176 security this State shall have against abuses, and what supervision the State shall retain over the acts of such grantees, if any are needed, beyond the ordinary jurisdiction and power of our courts, the legislature has sole and conclusive power to determine.
If any question, discussed on this appeal, relating to the power of the legislature to authorize the respondents to take lands in this State for their reservoir, remains, it is whether this court can say that taking lands along the shore of Long pond, in the sense in which it was authorized by the act, viz., by flooding it in making such pond a reservoir for supplying the respondents' canal, is taking private property for a public use.
The respondents' canal runs from the Delaware river, in New Jersey, to the Hudson river, at a point opposite our chief commercial city, New York. In its course it passes near our southern border, and for its supply a reservoir is needed, which requires the basin of Long pond, a portion of which is within our State, and the employment of which, by raising the water, appropriates some lands around its shore.
If the canal itself came within our limits, it would not be doubtful, according to the views I have expressed, that the legislature could authorize its construction, and the taking of lands for the purpose; and, in that case, the construction of the reservoir for its supply, would be no less within the power.
It does not follow, because the canal is outside the State limits, that its construction and maintenance are not for a public use, within the meaning of our Constitution. If it were within our limits, what are the public benefits to result from its construction? Not merely that our citizens may use it for transportation or travel. Providing transportation to market and facilitating intercommunication are some of the public purposes of such improvements; but communication between our chief cities and the productive regions which lie outside our State, and intercourse with those who dwell there, are as truly objects of public interest and advantage *Page 177 as between two sections of the State itself. Besides, the court cannot say that the Morris canal does not run within the reach of a portion of our own citizens, and directly aid them in the conduct of their intercourse with our eastern border, or the counties along the Hudson river to which it runs.
The work promoted belongs to a class long recognized as public in its character; and I think it was for the legislature to say whether the benefit to result to our own citizens, and facilitating internal commerce for the promotion of our trade or otherwise, were sufficient to call for the exercise of the power to take private property therefor; and that the decision of the legislature on that point is not subject to review in this court.
There is, however, another question which involves much greater doubt.
It appeared by the act of 1855 (Sess. Laws of 1855, ch. 296, p. 506), under which these proceedings were had, that the respondent had already, in whole or in part, made the construction which wrought damage to lands in this State. It appears by the petition herein that the lands of the respondent had actually been flooded for years before the act in question.
The act provided not merely for the taking of land for the purposes of the reservoir, but for making compensation for the damages theretofore done without authority.
It provided for an application to the Supreme Court for the appointment of commissioners, and an ascertainment and determination by them of the compensation which ought justly to be made by the respondents * * for the taking of such real estate, in case the same shall be taken, or for the injury whichmay have been or shall be occasioned thereto by such reservoir or construction, * * in case such injury is sought to be appraised. And the payment, tender, or deposit of compensation, so ascertained, is declared to vest in the respondent the title to real estate taken; and, in case the said compensation shall have been made for damages to or for injuriously affecting any real estate as aforesaid, then such *Page 178 persons who have been made parties to the proceeding shall be barred from all claim or demand on account of injury or damages to the real estate so injuriously affected, and the respondents are discharged from all claim or action on account thereof, and of any matter specified in the said petition.
In this case the respondents' petition states the erection of the dam to create the reservoir; the actual overflow and injury to the lands of the appellant; that they are now overflowed and injuriously affected by means of the erection, maintenance and use of the dam and reservoir aforesaid, and that the use and occupation of said lands and premises has been, from the time of the erection of said dam, and now is, in good faith, required by your petitioner, for the maintenance of said reservoir, and the necessary works, uses and purposes connected therewith, and is, in good faith, intended to be so used; that they have offered the appellant a fair compensation for all the damages and injury to said lands and premises, and have endeavored, but are unable, to agree with the appellant for the said damages and injury. And the prayer of the petition is for the appointment of commissioners "to ascertain and appraise the compensation to the owner of said lands and premises, for the damages and injuries aforesaid."
The report of the commissioners recites their appointment "to ascertain and appraise the compensation to said Peter Townsend, for the damages and injury to the lands described in the petition in this matter;" and they report, that "we have ascertained and determined the compensation which ought justly to be made by the said Morris Canal and Banking Company to said Peter Townsend, for the damages and injury aforesaid, and we hereby appraise the same at the sum of $140." The order appealed from confirms this report.
The proceedings in the matter of Peter and William H. Townsend are of the same purport.
Here is, obviously, no taking of the lands with intent to vest the title in the canal company. It is simply an ascertainment *Page 179 of the damages done to the lands of the appellant. It does not profess to be a proceeding to determine the compensation to be made "for the taking of such real estate," but "for the injury * * occasioned thereto by such reservoir," in a case in which "such injury was sought to be appraised," according to the language of section five of the statute.
A liberal construction of the proceeding, in connection with the act under which it was had, with a just regard to the design and purpose of the act and the proceeding under it, may warrant the holding, that this assessment of damages covers all future or prospective injury resulting from the overflow by reason of the dam, as then constructed, although the language of the prayer and of the report is especially apt to describe damages already sustained.
Hereupon, the inquiry arises: Is it within the constitutional power of the legislature to deprive the appellant of a right to sue for and recover his damages for an unlawful overflowing of his lands by act of another, compel him to submit to the award of three commissioners appointed to view the premises and hear such proofs as the parties may offer, or be barred of his claim and right of action for the injury?
In the erection of the dam and the flooding of the lands of the appellant, the respondents were wrong-doers. No authority derived from the State of New Jersey was a justification. The cause of action was complete, and the right of recovery for the damages absolute. How then could the legislature deprive the appellant of his resort to the ordinary courts of justice for redress? If the respondents would not, or did not, make compensation for the wrong, he was entitled to appeal to the courts of common law and have his damages assessed by a jury. No public use existed, for which those damages were properly subject of condemnation and appropriation under the power to take private property for public purposes. As to the future, the power to authorize the construction of the reservoir may involve the power and duty to provide for the consequential damages and for their ascertainment *Page 180 by a summary proceeding, although the title to the land was not taken.
The claim of the appellant and his cause of action, was one to which the right of trial by jury "in all cases in which it has been heretofore used," was especially appropriate, and such trial in such cases is guarantied by the Constitution.
If the respondent saw fit to commit the wrong, instead of waiting for legislative authority to construct their reservoir, they became liable for damages, from the payment of which they could not be relieved by any retroactive legislation, and for the ascertainment of which the appellant could not be compelled to submit to the appraisal of a tribunal not proceeding according to the course of the common law.
So far then as the act in question provided for a summary proceeding, to ascertain the damages sustained by a prior wrong, or illegal overflow of the lands of the appellant, and barred him of any action for redress, I think it was unconstitutional and void.
If it were possible to say, upon these proceedings, that the damages awarded were not for past injury or to sever the damages, distinguishing between the past injury and the future use, there might be opportunity to declare the proceeding valid, in respect to the right to continue the erection, and effective as a protection against actions for any damages accruing after payment or tender of the sum awarded.
But, as a bar to an action to recover the prior damages, the proceeding cannot avail, and it is our duty so to declare
The case of Wynehamer v. The People (13 N.Y. 378), holds, that, where no discrimination is made, in the statute authorizing the destruction of intoxicating liquors, between property which was already owned (and could not be destroyed without violating the Constitution) and property thereafter manufactured or purchased, the act must be declared unconstitutional and void. (The People v. Haws, 37 Barb. 440; Taylor v. Porter, 4 Hill, 138.)
It follows that the order or judgment appealed from must be reversed. *Page 181