The question presented involves the constitutionality of chapter 734 of the Laws of 1904. Under and by virtue of said act the plaintiff claims the right to acquire by condemnation the title to certain lands of the defendant as for a public use. Such right is denied by the defendant, principally upon the ground that the act makes no sure and adequate provision for the payment of a just compensation for the lands to be taken, and is, therefore, unconstitutional.
The plaintiff is a commission created and existing under and by virtue of chapter 723 of the Laws of 1905. Under the provisions of chapter 734 of the Laws of 1904, certain public officers were constituted a commission and designated as “ The River Improvement Commission,” and were clothed with the powers prescribed in the act last mentioned. By chapter 418 of the Laws of 1906 such powers and duties devolved upon the plaintiff, so that it is only necessary to consider the provisions of the act, chapter 734 of the Laws of 1904. The purpose of such act is to provide a means to regulate the flow of certain watercourses of the State in aid of the public health and safety, and it is sought, under the powers conferred by such act, to apply its provisions to a stream in the county of Livingston, known as Canaseraga creek, which flows in a generally northwesterly course from the town of Uorth Dansville, through the towns of Sparta, West Sparta, Groveland and Mount Morris, all in said county, and which enters the Genesee river'at a point upon the line dividing the two last mentioned towns, a distance in a direct line of about fifteen miles, and following the course of the stream a distance of about forty-five miles. The watershed embraces nearly 200,000 acres. There are fifty-five streams emptying into the creek from both sides, which traverses the valley, embracing an area of 13,000 acres of flat land, and through a part of which the creek is above the level of the land on either side. The situation of the creek, as it at present exists, is such as to overflow at flood *124times a large area of valuable lands in such county, and it appears that the result of such overflow is not only a serious detriment to the landowners, but seriously impairs the public health in the locality.
As I understand it, it is practically conceded that the purposes of the act in question were legitimate, and that it was competent for the State to exercise its authority in the premises, and to abate or improve the condition which existed in the territory referred to. Assuming that I am right in thus concluding, further reference to the conditions which exist and the necessity for their improvement need not be made. But in order to carry out the purpose of the State thus declared by the act in question it became necessary to appropriate the land of the defendant and others similarly situated, and the act provides that such taking may be had or appropriation made under the provisions of the Condemnation Law, so called. So far, assuming that the purpose of the law is legitimate and within the province of the State to provide for, there can be no criticism of the act and, indeed, none is made by the defendant upon that assumption.
He (the defendant) challenges the constitutionality of the act solely upon the ground that no provision is made for a sure and adequate compensation to be paid to him for his property, which is concededly to be taken and requisite for carrying out the purposes of the act. If the payment of the compensation which may be awarded to the defendant is not made sure and certain by the provisions of the act, I understand that it is unconstitutional, and, therefore, void.
In the case of Sage v. City of Brooklyn (89 N. Y. 189) Chief J udge Andrews, writing the opinion for the court (p. 195), said : “ It is so axiomatic that it is laid up as one of the principles of government, that a provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. (Gardner v. Village of Newburgh, 2 Johns. Ch. 168.) * * * If such provision is not made, then as was said by Nelson, Ch. J, ‘ The law making the appropriation is no better than blank paper.’ (People ex rel. Utley v. Hayden, 6 Hill, 359.) It is, I think, a plain proposition that a law authorizing the taking of a man’s land, and remitting him for his sole remedy for compensation to a fund to be *125obtained by taxation of certain specified lands in a limited district, according to benefits, is not a sure and adequate provision, dependent upon no ¿ hazard, casualty or contingency whatever,’ such as law and justice require to meet the constitutional requirement. The pledge of the faith and credit of the State, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law. But a remedy for compensation, contingent upon the realization of a fund from taxation for benefits within a limited assessment district, does not meet the constitutional requirement.” (See, also, Brewster v. Rogers Co., 169 N. Y. 73 ; Chapman v. Gates, 51 id. 132,146.)
In the case of Mitchell v. Village of White Plains (62 Hun, 231), the provisions of chapter 552 of the Laws of 1868, which assumed to authorize the opening of a roadway from Mamaroneek to White Plains and directed that the cost of the necessary lands and the laying out, making and grading of the roadway should be paid for by an assessment upon the lands upon either side of the avenue or roadway were considered by the court and it was held that the act was unconstitutional, because the paying of the award for the lands was limited to a single source, namely, the local assessment.
Under the provisions of the act in question, and without going into detail, it is provided, in substance, that the lands of the defendant may be acquired by condemnation proceedings as for the public use. The only manner provided by which the defendant can receive the amount of such award is by waiting until a sum is accumulated resulting from assessments made upon the property which it is assumed will be benefited by the improvement. Whether such sum will ever be thus created and accumulated is purely problematical. Such assessment for supposed benefits may be contested by any one thus assessed, and whether such assessment may finally contribute to the fund out of which the defendant and others similarly situated are to be paid is purely problematical. So far as I can discover by the act no political division of the State is obligated to pay to the defendant the amount which may be awarded to him for the land taken from him.
*126Ordinarily, in condemnation proceedings, where an award is made, the landowner is entitled to accept the same and to demand the payment of the award thus made to him. In the case at bar no such right exists, but the landowner must wait for the payment of the award made to him until such time as a fund is created adequate and sufficient to pay the amount of his award, and under the provisions of the act it is quite possible to conceive that such fund may be decreased indefinitely without any act or fault on the part of a particular landowner.
In the case at bar suppose that the defendant is awarded a certain sum as the value of his property taken from him by virtue of the power of eminent domain. Is there any provision of the act which enables him to recover that exact amount either at present or at any time in the future? Certainly not at the present time because the fund out of which he is to be paid cannot be determined until the amount of his award and the damages to be paid to all others similarly situated can be ascertained, and then the scheme is when the amount of\lie damages to be paid to the landowners is determined to assess the cost upon the property owners to be benefited, which assessment, as I have suggested, may be contested by any one of such supposed beneficiaries. So that the compensation to be paid to him for his property is not sure, but is uncertain in the extreme and in every aspect of the case.
It is suggested that by the provisions of the act the property of the defendant and of others similarly situated cannot be actually acquired or entered upon until the compensation awarded is paid. Such is undoubtedly the correct construction of the statute, but I think that it does not aid the plaintiff’s contention in support of the constitutionality of the act, because by the institution of such condemnation proceedings and by the award made a cloud is placed, upon the title to defendant’s property which may be serious in the extreme. It may be such as to prevent him from selling or disposing of the same because, as I have pointed out, it cannot be determined in advance whether or not the property so condemned is eventually to be taken, because it cannot be known that a fund will be created sufficient to pay the award.
I think the conclusion is irresistible that the act in question is unconstitutional in that it authorizes condemnation proceedings to *127take the property of the defendant and others similarly situated under the power of eminent domain without obligating any political division of the State to pay the sum awarded for the property so taken by such condemnation proceedings. Undoubtedly the Legislature could have created a tax district and made it responsible for the payment of any award made to an individual whose property was taken. But, in the case at bar no such provision is made; no town, particular locality or other political division of the State, or the State itself is obligated to pay the award which may be made to the defendant or others similarly situated for the property taken and necessary to consummate the scheme and purpose of the statute. The defendant and all others similarly situated are relegated to be paid out o.f funds to be created by the plaintiff in the manner prescribed by the statute and every item of which may be contested by those from whom such fund may be sought to be collected.
I conclude that in the respect indicated the act is unconstitutional and void and that plaintiff is not entitled to exercise the right of eminent domain as against the defendant or others similarly situated.
Judgment rendered in favor of the plaintiff on the submission determining that the act in question (Laws of 1904, chap. 734) is constitutional.