The constitutionality of the act, based upon the objection that it permits the taking of land by condemnation for private purposes, is not presented by the appellants, and there is no serious contention that the proposed canal or waterway is not. to be constructed for public use. The incorporating statute declares that lands required for the construction of the»waterways “shall be deemed to be required for public use,” which is sufficient to establish its public character. In addition, the contract under which the waterway is being constructed by the respondent obligates the petitioner upon its completion to immediately convey, transfer and surrender it, with all of its-appurtenances, to the town of Hempstead, '“The same to be thereafter held and used by said Town of Hempstead, ánd its inhabitants, and the public generally, forever, according to. the true intent and meaning of said Town contract.” The town contract provides that upon the completion of the said waterways they shall become the property of said town, and subject to its municipal jurisdiction, the same as other town property, and declares its purpose to be to provide a continuous waterway from Jones inlet to East Rockaway inlet. It follows that after the waterway is completed and transferred to the town the petitioner cannot erect warehouses upon its banks, establish- tolls for its use or exercise the powers given by the incorporating statute, for the reason that such rights do not apply to a waterway ’owned by thh town of Hempstead in which the petitioner will have no interest or control after such transfer. Nor can the town avail itself of the powers limited by the statute to the petitioner. The construction of this waterway was. part of a proposition submitted to the electors *513of the town of Hempstead and adopted before the contracts were made. It was intended to be a public water highway. This being established, I think the case is brought within the rule declared in Matter of Burns (155 N. Y. 23, 27), that the Legislature having determined the necessity for the exercise of the right of eminent domain, the validity of the act is not open to question, on the ground that the use is not public. In Matter of Fowler (53 N. Y. 60) it was held that the necessity of the appropriation of land by those upon whom the Legislature has conferred the right of eminent domain cannot be inquired into by the courts. That is, the use to which the lands are to 1 put is public; the Legislature is the sole judge of the necessary unless it is otherwise provided in the act. This case has been cited and the rule reasserted many times, the latest by the Court of Appeals in Matter of Delavan Avenue (167 N. Y. 259) and by the Appellate Division in People v. Fisher (116 App. Div. 686). There is a manifest difference in the rules applicable to a corporation created under a general act, which claims to possess the power of eminent domain because of its character and the nature of the improvement it desires to make, under some other general act, and a corporation as to which the Legislature has determined the public character of the improvement to be made, and given the power of eminent domain for the purpose of acquiring land required for the authorized improvement. The act is not subject to the criticism that its purposes are not expressed in its title, which is, “An Act to incorporate the Tidal Water Way Company and to define its rights, powers and privileges.” This language is a notification to all persons interested that they may find in its provisions all of the'rights and powers conferred upon the corporation to enable it to construct and maintain a “waterway” which involves, almost necessarily, the right to acquire the land needed for its bed, by either purchase or the exercise of the right of eminent domain. The name of a corporation may materially affect the question as to whether a special franchise granted by the act can be sustained. (Economic Power & Construction Co. v. City of Buffalo, 195 N. Y. 297.) In that case Judge Chase says: '‘When the subject is expressed, *514all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. ” The incorporation of a company and the defining of its rights and powers are in reason and law but the consummation of a single purpose. (City of Elmira v. Seymour, 111 App. Div. 199; Van Brunt v. Town of Flatbush, 128 N. Y. 50.) The object of the provision of the Constitution (Art. 3, § 16) upon which this objection is based is to prevent the public from being misled. (Matter of Mayor, etc., 99 N. Y. 570.) Nothing short of clear proof that the title is misleading will justify: a finding that a legislative act is unconstitutional because of a failure to express its purposes in the title. In Matter of Mayor, etc. (99 N. Y. 576) Judge Finch said: “The most valuable test of such a title, and-the one which we have usually employed, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the- evil at which the constitutional prohibition was aimed. (Matter of Lands in Flatbush, 60 N. Y. 398; Matter of Paul, 94 id. 497.) Where one, reading a proposed bill with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the, fundamental law. But where, as in the present case, no such evil lurks in the title, and the provisions criticised may be-easily and reasonably grouped within'the scope and range of the general subject expressed, we ought not to .destroy the legislation assailed upon some nice and rigid criticism of forms of expression.” It is impossible to spell out trickery or deception from the language used in the title of the act under consideration, and the name of the corporation alone indicates that the right of eminent domain is necessary to effect its purposes, which right is properly included in the “rights, powers and privileges” to which attention is directed by the title. I do not regard the cases of Coxe v. State (144 N. Y. 396), Matter of Eureka Basin W. & M. Co. (96 id. 42) or Economic Power & Construction Co. v. City of Buffalo (195 id. 286) as authorities to the contrary. In the first case the title was “An act to authorize the *515drainage of marsh lands.” (Laws of 1868, chap. 864, as amd. by Laws of 1869, chap. 282.) ■ In addition to the powers usually granted for such purposes, the act conferred upon the corporation the power to levy and collect assessments, and to drain and reclaim tide water marsh lands. Such powers and rights were not inferable from the title, which did not refer to the creation, powers or rights of any corporation. Of this the court said: “ It is quite clear that no citizen or member of the Legislature would expect to find such an extraordinary grant from the State of lands under water in the body of a bill with such a title.” The question as to the unconstitutionally of the act because of its purposes not being expressed in its title was not considered in Matter of Eureka Basin W. & M. Co. (supra). In. the Economic Power Company case the title of the act was “An act to incorporate the Economic Power and Construction Company.” (Laws of 1893, chap. 459.) Extensive and extraordinary powers were granted under that title which the court held overcame every thought of the same being an incident to the incorporation of a power and construction company. I think that the contentions based upon the unconstitutionality of the act incorporating the respondent are without merit.
It is claimed by appellants that the necessity for taking the land was not established by the evidence. The answer to this is that the act provides that the corporation shall cause the necessary examinations and surveys for its proposed waterways to be made; select the most advantageous route, and when so determined and selected acquire land by purchase or condemnation, and this amounts to a declaration by the Legislature that the land required for its construction was needed for public use. The company adopted surveys and maps showing the route selected, and the Legislature having determined the public character of the improvement and given the specific right to condemn the land required, the exercise of such power cannot be inquired into by the courts (Matter of Fowler, supra), and the act is not open to question upon the ground that the use is not public. (Matter of Burns, supra.) Besides this, I think the evidence is sufficient to establish the necessity for taking the land for a public purpose. Its necessity cannot be successfully challenged because it is within the bed of *516the proposed waterway, and the land authorized to be acquired on each side of such bed, as shown'by the surveys and maps. It is proven that the waterway is to be owned by the town for the use of its inhabitants and the public. If it were held that these words limited its use to the inhabitants of the town as long as such use is in common, and not for a particular individual or corporation, it is “public” within the meaning of that word as used in the Constitution, statutes and by the courts. (Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 259.) It seems to me that the waterway is shown to be a public utility, usable by the public for public as well as private purposes. If it be true as contended that the main purpose of its construction is to afford ingress and egress by the public to the hotels and summer resorts erected and to be erected by the beach company, such purpose of user does not condemn the act, for ■the right to exercise the power of eminent domain may be vested in. a corporation which may be actuated solely by motives of private gain if the use to be made thereof is for the benefit of the public. (Pocantico Water Works Co. v. Bird, supra; Economic Power & Construction Co. v. City of Buffalo, supra, 295.) Nor do I think the statute is to be considered in the light of what might be done under its provisions in determining the question of its constitutionality upon the case presented. The improvement presented is a completed one. The waterway when completed, with all of its appurtenances, is to be transferred to the town of Hempstead for the use of its inhabitants and the public. It thereupon becomes a public utility and municipal property. Nothing more can be done, either by the respondent or the town, under the authority of the statute, and the question of what might be done under the statute if the respondent retained title to the improvement after it was completed is not properly before us. The contention that Competent evidence bearing upon the question of the necessity of taking the land for a public purpose was improperly excluded is without merit. This question has been determined by the Legislature, and is not open to the consideration of the commissioners or of the court. (Matter of Fowler, supra.)
In view of my vote for affirmance, it may not be unwise to say of the contention that the award is somadequate as to demand *517its reversal' and a new appraisal, that it is also without merit. It is argued that the dividing line between the land sought to be taken and the remaining land of the appellants is to be a straight-banked perpendicular cut of a depth of at least ten feet, and that - no provision is made to prevent'the water from undermining and cutting away the lands of the appellants. This assumption is unwarranted, because it is shown by the uncontradicted evidence of the engineer in charge that the canal is being constructed with sloping banks and a careful, regard to maintaining them in then* integrity; and in this connection it is admitted by witnesses called for the appellants that if the canal is completed in this manner its banks will be preserved and bulkheading rendered unnecessary. Of course the duty rests upon the respondent of constructing the waterway in such a manner as not to damage appellants’ remaining property, and if this is not done they have an enforcible remedy for further damages. (Johnson v. State of New York, 62 Misc. Rep. 15.) The consequences feared by the appellants are. contingent, speculative and merely possible, and are not for this reason to be considered in ascertaining damages, which must be determined as of the time of the award. (Strohm v. New York, L. E. & W. R. R. Co., 96 N. Y. 305; Coonley v. City of Albany, 57 Hun, 327; Mott v. Lewis, 52 App. Div. 558; Stowers v. Gilbert, 156 N. Y. 600; Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111.) Speculative damages cannot be allowed, and we cannot say that the award of the commissioners is not a fan and adequate compensation for the property taken. The question was for their decision; they viewed the land before and after receiving evidence, heard and considered the proofs of the parties, saw the witnesses and observed their manner of testifying, and we are not at liberty, in the absence of apparent in justice to the appellants, to set their award aside. (Brooklyn El. R. Co. v. Lewis, 33 N. Y. Supp. 881; Buffalo, Lockport & Rochester R. Co. v. Phelps, 52 Misc. Rep. 315; Harlem River & P. R. R. Co. v. Reynolds, 50 App. Div. 575; Matter of Brookfield [Sarles Claim], 78 id. 520, 524; Matter of City of New York [Croton River Dam], 129 id. 711; Matter of Simmons [Ashokan Reservoir], 132 id. 574.)
*518There was no reversible . error in the reception of evidence, and I vote to affirm the final order and interlocutory judgment judgment, with costs.
Hirschberg, J., concurred.
Judgment appointing commissioners and order confirming their report, reversed on reargúment, with costs, and proceedings dismissed, with costs.