Without determining the question of the constitutionality of chapter 719 of the Laws of 1894, as to which there is room for doubt, I feel constrained to vote for the reversal of the *510interlocutory and final orders in this proceeding, and I. base my vote upon the single ground that the petitioner is plainly not seeking to acquire tire lands in question 'for the purpose to accomplish which the Legislature gaye it the power of condemnation. When a corporation possessing the power of eminent domain seeks to take the land of ahother in invitum, that corporation must show, and the courts must decide, whether it is actually seeking to exercise such [power within the use and purposes for which the power was granted. It is not enough that it intends to devote the land so acquired to a public use; the use must not only be public but it must also be a part of the specific public use for Which it has received the power. (Erie R. R. Co. v. Steward, 61 App. Div. 480; 170 N. Y. 172.) It is not necessary that such corporation shall require such lands for immediate use, but it may exercise the power “ provided its necessities for such use ib the immediate future are. established beyond reasonable doulbt. * * * ' The exercise of . this power is, in derogation of individual rights, and is always burdensome and often injurious to the owner beyond the power of pecuniaiy compensation to wholly redress, and should be allowed only when the necessity for the land clearly appears, and its proposed use is clearly embraced within the legitimate objects of the power.” (Matter of Staten Island Rapid Transit Co., 103 N. Y. 251, 257.) It seems to me that the power of eminent domain given to the petitioner by the act of 1894 was- given for the sole: purpose of acquiring lands necessary for the' construction and the maintenance by it or its successors of a tidal waterway with a defined route in the then counties of Queens, Richmond and Suffolk. There is no. claim that the petitioner is seeking: to condemn the lands in question as a part of a defined route on which it intends to construct and maintain a tidal waterway, with the use of connecting canals. Its plain purpose is to connect two bodies of tidal waters by the means of a short canal and then to completely divest itself of any power or -duty over the cahal so constructed. It is seeking to construct this Canal more as a private contractor than as a quasi public agency. The grant of the power of eminent domain carries with it a public duty as well.as a govermental power, and it seems quite extraordi*511nary that a corporation can seek to exercise such power to accomplish a result which it is bound by private contract to abandon the moment the result is attained. This is not a case where the petitioning corporation simply intends to condemn for the benefit of a lessee, which possesses similar public powers and duties, as was the case in Kip v. New York & Harlem R. R. Co. (67 N. Y. 227); nor is it a case in which the petitioning corporation seeks to condemn land which it will need for its own corporate purposes in the near future, or which it may need, with the purpose of using its own system as a connecting link with other systems, and so increasing its own public usefulness, as was the case in Matter of Staten Island Rapid Transit Co. (supra).
There is authority in this State that a railroad corporation which has leased its system for the full term of its corporate life may nevertheless exercise its power of eminent domain for a public use to be maintained by its lessee, but the reason for such holding, as given by the court which made it, is as follows: (a) That (the statute which granted power to a railroad corporation to condemn lands for railroad purposes likewise authorized such corporation to condemn lands for the benefit of a lessee railroad corporation; (b) “ and in the further consideration that by its lease the lessor company in no respect escapes from or lessens its corporate duty to the State, but is continuing the performance of that duty through the agency of its lessee, and may at any time, through the failure of the latter to perform its covenant obligations or by its absolute loss of corporate life and existence, become re-possessed of its line and property and bound to operate it for itself, and that to the proper performance of its duty by itself or through its lessee the acquisition of lands or terminal facilities may be necessary and essential.” (Matter of New York, L. & W. R. R. Co., 99 N. Y. 12, 22.) Here, however, the petitioner is seeking to condemn land simply to perform a contract which it has with a purely private corporation, in order to enable that corporation to perform in turn a contract which the latter has made with a municipal corporation, the town of Hempstead, which last corporation has no power of eminent domain in the premises, and no statutory duty to maintain the proposed canal after it *512gets it by cession from the petitioner. The “canal” no doubt would be a public highway in a broad sense of the word, but it is not such a highway as comes within the provisions of the Town Law or the Highway Law. While I feel that the result sought by the petitioner would be greatly to. the public benefit in the locality affected, I am constrained to the opinion that the method by which the attainment of such result is sought has no warrant in law.