The question of necessity was not before the court for adjudication. The decision of this question was vested by the Highway Law in administrative officers, whose decision cannot be reversed and does not need confirmation by the courts. The function of the court was the appointment of commissioners. The question whether the use was for a *212public purpose or authorized by law is in its essence a judicial one, and the decision of the question is necessarily involved in the action of the court in appointing commissioners. The landowner may at any time in the proceedings raise the issue whether the taking is for a public purpose or is authorized by statute. This has been done by the interposition of defendant’s answer in this case, and the question is properly before us for review.
The proposed highway passes along the face of Storm King Mountain, 300 feet above the surface of the Hudson river. The mountain is very steep, rising 260 feet in 215, a slope of over fifty degrees. To cut the highway in the face of the mountain it is necessary to remove large quantities of rock. The defendant owns the land with buildings thereon, both above the highway and below, between the highway and the river, except the right of way of the West Shore railroad. In blasting for the highway large quantities of rock were thrown and rolled down upon defendant’s land and buildings. The defendant obtained an injunction against the continuance of the trespass, and the State and county officials have undertaken to acquire all defendant’s land, consisting of about twenty-three acres, below the highway in order to continue the same method of disposing of the excavated rock by throwing and rolling it down the mountainside. To determine whether they have the power so to do, reference must be had to the Highway Law, which is their charter Section 148 of that law authorizes the board of supervisors of the county to “ acquire land for the requisite right of way prior to the actual commencement of the work of construction.” (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], § 148.) Not only is there no claim that the twenty-three acres in question were for the requisite right of way, but the land for that purpose has already been taken. The only remaining power is to “ acquire lands for the purpose of obtaining gravel, stone or other material, when required for the construction, improvement or maintenance of highways, or for spoil banks, together with a right of way to. such spoil banks and to any bed, pit, quarry, or other place where such gravel, stone or other material may be located.” The plaintiff claims that the land is taken for a spoil bank, and it is obvious that this is the only purpose
*213over which even an argument is possible. A spoil bank is a heap of waste material thrown off in construction. The term is sometimes used somewhat inaccurately for the area of land on which the spoiled material is placed. By no stretch of interpretation can loose rock cast through the air by blasting and rolled and tumbled down the mountainside, lodging anywhere on an area of twenty-three acres, be called a spoil bank. The term implies that the spoiled material is gathered together into a bank. Even the plaintiff’s own witness says that the land is not for a spoil bank in the common sense of the term. The learned justice says in his memorandum opinion: “ The land now sought to be acquired by the plaintiff is necessary for the building and completion of the highway.” Much might be said on the subject, but the question is not whether the land is necessary, but whether the purpose of the taking was authorized by law.
Undoubtedly the State has power to take land incidentally useful in the construction of work for public purposes. Nor do I doubt that the State has power to take land situated as is the defendant’s, for the purpose contemplated, for the power of the State to resume possession of land of which the people are deemed to possess the original and ultimate title (Const, art. 1, § 10), is subject only to the constitutional provision that the use for which it is taken shall be public and that just compensation shall be made. (Const, art. 1, § 6.) But where the exercise of the right of eminent domain is confided to officers of the State or to a municipality, the act which confers the power necessarily limits the purposes for which it may be exerted. The purposes must, therefore, be found in the act. I have already enumerated these purposes. The power to take is limited to such purposes, and it does not include the taking for any other purpose, even though useful, or, in the opinion of the court, necessary to the work. The situation is peculiar, and the statute does not provide for it.
I concur with the prevailing opinion that it was error to include in the order directions to the commissioners as to the principles to govern them in making the award. These directions, in my opinion, are erroneous, for the only question before them is the value of the land as it is, but whether erroneous or not, they have no proper place in the order.
*214The judgment and order appointing commissioners should be reversed and the proceeding dismissed, with costs.
Appeal from so much of the order appointing commissioners dismissed, without prejudice to a future appeal from the order of confirmation under section 3375 of the Code of Civil Procedure; the 10th paragraph of the judgment, with the corresponding parts of the decision, are stricken out, without costs of this appeal to either party.