#### The People of the State of New York ex rel. New York Central and Hudson River Railroad Company, Respondent, *v.*Michael J. Walsh, Deputy Comptroller, Acting as Comptroller of the State of New York, and Others, Appellants.

Third Department,

November 26, 1913.

Constitutional law — canals —title of State to canal lands — contract for purchase of lands subject to easement not enforcible by mandamus.

A contract, entered into between the special examiner and appraiser, officers of the State, and a railroad company, whereby the State acquires the right of possession of certain lands of a railroad company for canal purposes, subject to an easement for railroad purposes, is inconsistent with the provision of the Constitution which requires the full ownership and management of the canals by the State, and cannot be enforced by mandamus.

Kellogg and Howard, JJ., dissented in part.

Appeal by the defendants, Michael J. Walsh, as Acting Comptroller, etc., and others, from an order of the Supreme Court, made at the Albany Special. Term and entered in the office of the clerk of the county of Albany on the 30th day of June, 1913, granting the relator’s motion for a peremptory writ of mandamus.

*Thomas Carmody, Attorney-General, and Edward J. Mone, Deputy Attorney-General,*for the appellants.

*Visscher, Whalen & Austin [H. Le Roy Austin of*counsel], for the respondent.

Woodward, J.:

The order appealed from commands the Acting Comptroller to audit the claim of relator and to draw his warrant upon the *253State Treasurer for the sum of $352,993.50, with interest, and commanding the Superintendent of Public Works to execute and deliver to relator a conveyance of an easement in certain real estate, and commanding the special examiner and appraiser to execute or procure the execution of and delivery to relator of a conveyance of an easement in said real estate. These things are commanded for the purpose of the settlement of relator’s damages arising by reason of barge canal appropriation No. 1,874, and in accordance with a written agreement entered into between the special examiner and appraiser and the relator.

There can be no question that under ordinary circumstances the State Comptroller, or his deputy, is called upon to audit claims against the State growing out of the construction of the barge canal, and the general rule is that the writ will not be granted to control such officers’ discretion and dictate their disposition of the claim. It is also well established that auditing officers cannot be compelled to approve or allow a claim or any particular items thereof, or to allow any specified amount. (19 Am. & Eng. Ency. of Law [2d ed.], 783; *People ex rel. Grannis*v. *Roberts,*163 N. Y. 70.) Where, however, the law has appointed another officer or tribunal to examine and certify the claim, and made such certificate or allowance conclusive, the duty of the auditor or other proper officer to draw a warrant for the payment of such claim is a purely ministerial duty and may be enforced by mandamus. (19 Am. & Eng. Ency. of Law [2d ed.], 786; *Matter of Freel,*148 N. Y. 165.) If the question involved here related purely to the drawing of a warrant for the. amount agreed upon between the relator and the special examiner and appraiser we should be inclined to hold that the order was properly granted, upon the ground that the amount of the claim had been fixed by officials specially provided by statute for this purpose, and that the Comptroller had merely a ministerial duty to perform in connection with the matter. But the order appealed from goes much further; it commands other officers to make conveyances of real estate, or an interest therein, and it even commands the special examiner and appraiser to make a conveyance, or procure some proper party to make a conveyance, of an ease*254ment under the termfe of a certain contract, and it becomes necessary to determine whether there was any authority for making such a contract and if the order is for the enforcement of a strictly legal right on the part of the relator and for which it has no other proper remedy.

In November, 1909, acting under the provisions of chapter 147 of the Laws of 1903, as amended, known as the Barge Canal Act, the proper officers of the State of New York served upon the relator a copy of the Barge Canal Appropriation Map No. 1,874, with notice of filing thereof, and by such notice demanded immediate possession of such property as was described on said map. The property demanded constituted a part of the relator’s right .of way 586.3 feet in length, used for the tracks of the New York Central and Hudson Biver railroad. In other words, the route of the barge canal intersected that of the relator’s railroad, and it became necessary for the State to appropriate the lands already dedicated to one public purpose to a second public purpose, and to this end it became necessary for the relator to construct a bridge over the barge canal, at a considerable cost for construction and maintenance, and the value of the real estate owned by the relator, together with the cost of construction and maintenance of the bridge, became a matter for adjustment between the relator and the State. Under the Constitution of this State (Art. 7, § 10) the Legislature is authorized to provide for the improvement of the canals, and by section 8 of the same article it is provided that “The Legislature shall not sell, lease or otherwise dispose of the Erie canal, the Oswego canal, the Champlain canal, the Cayuga and Seneca canal, or the Black Biver canal; but they shall remain the property of the State and under its management forever.” It will thus be seen that the State must have the title to the canals and to the lands necessary for the maintenance and operation of the same; they are to “ remain the property of the State and under its management forever,” and this requires an absolute title to all of the property included in the canals and in so much of the land adjacent to the prism as is necessary for the maintenance and operation of the canals as a means of transportation. When it became necessary to intersect the right of way of the relator’s *255railroad it devolved upon the State to purchase of the relator its rights in the real estate to the full width of the canal and its appurtenances, and to pay all of the damages which the relator should sustain by reason of the taking of this portion of its roadbed and right of way, and the State had no right, under the law, to take more of the relator’s property than was necessary for the public purpose contemplated by chapter 147 of the Laws of 1903, and which was pointed out by the map above referred to, and it had no right to take less than all of the property rights of the relator in and to such real estate, subject to the payment of just compensation for the property taken and the resulting damages to the relator’s remaining property. It is true, of course, that under the provisions of subdivision 4 of section 8 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481) the relator, as a domestic railroad corporation, has the right to “construct its road across, along or upon any stream, water-course, highway, plank-road, turnpike, or across any of the canals of the State, which the route of its road shall intersect or touch,” but this does not give the railroad company any title in or to the bed of the canal; it is a privilege, in the nature of a franchise, necessary for carrying out the purposes of the corporation, and is consistent with the provisions of the Constitution, which require the State to own and operate the canals. Owning the fee and being charged with the duty of managing the canals forever, the State has the full power to regulate the manner in which the relator shall cross its canals, and as well those to be constructed in the improvement of the canals as in those which existed at the time the railroad was constructed, subject, of course, to the payment of just compensation for the damages sustained.

By the provisions of chapter 334 of the Laws of 1910 the former statute in reference to a special examiner and appraiser of canal lands was amended, and it provided that this special examiner and appraiser should be charged with the duty of visiting and inspecting the “lands, structures and water rights, or property rights appertaining thereto, appropriated for the use of the improved canals, and for the purposes of the work of improvement authorized by chapter one hundred and forty-seven of the laws of nineteen hundred and three, as provided by section *256four of said acts and acts amendatory thereof,” and that such *“*special examiner and appraiser * * * either upon the application of the owers of such lands, structures and waters, or property rights pertaining thereto, or of the Superintendent of Public Works, may fix and determine with each or any of said respective owners upon a fair valuation of any specific portion of said real property, structures, waters or property or rights connected therewith, or damage resulting to any such owner or occupant, and may agree upon a price to be paid therefor by the State and accepted by said respective owner or owners in full compensation for such specific property or rights, or for the damage caused by said work or improvement. * * * If in the opinion of the Canal Board it is possible by means of such appraisal and agreement, to acquire for the State a good title to the *entire interest of any specific parcel of land or other property or right necessary for said improvement within the survey made by the State Engineer and Surveyor and certified by him,** * * and that it will be for the advantage of the State to obtain such specific property or right without condemnation proceedings or resort by said owners to the Court of Claims, said Canal Board shall approve such agreement so entered into with such owners, and upon the presentation and delivery of proper conveyances, duly approved by the Attorney-General, said Canal Board may certify its acceptance thereof to the Comptroller for payment under the provisions of section thirteen of chapter one hundred and forty-seven of the laws of nineteen hundred and three, and acts amendatory thereof, to the owner or owners severally named therein. The Treasurer shall pay to such owner or owners upon the warrant of the Comptroller, after due audit by him, the amounts specified in such certificates.” (Laws of 1908, chap. 195, § 2, as amd. by Laws of 1910, chap. 334.)

Here is clear authority for the special examiner and appraiser to enter into agreements for the purchase of specific property within the survey made by the State Engineer and Surveyor, and certified by him, and, with the approval of the Canal Board, to determine the amount of compensation tobe paid, but where is the authority for the contract which has in effect been decreed to be specifically performed by the order here under *257review *%*What authority is given to the special examiner and appraiser and the Canal Board to enter into a trade in reference to the real property required for canal purposes by the State *%*What right have any of these persons to enter into a contract to convey any part of the lands held for canal purposes, or to grant any easements therein ? The statute does not in terms provide for anything more than the agreement upon the price to be paid, the just compensation to be made for the taking of specific property, and, under the prescribed conditions, the Treasurer is to pay the amount agreed upon. Beyond this there is no authority to act. No one, not even the Legislature itself, has the power to sell or convey any property held for canal purposes — certainly no right to convey any part of the canal prism— and this is what is attempted to be done under the contract. The contract provides for taking the property included in the map which has been filed and under which the State acquires the right to possession, and to pay therefor a specific sum of money, and then the State is to convey an easement in the property thus disposed of to the relator for railroad purposes, and it is agreed in the contract that “such quit-claim deed executed hy the party of the first part shall also contain a specific statement that it is intended to convey thereby an easement as therein described, and that such conveyance is not intended to be, in any sense, a franchise or license,” so that if the contract is carried out as the writ directs the State of New York will not have acquired “ a good title to the entire interest of any specific parcel of land or other property or right necessary for said improvement within the survey made by the State Engineer and Surveyor and certified by him ” (Laws of 1908, chap. 195, § 2, as amd. by Laws of 1910, chap. 334), but will have a parcel of land burdened with an easement for railroad purposes, and which is entirely inconsistent with the provisions of the Constitution, which require the full ownership and management of the canals by the State. The law, as we understand it, contemplates nothing less than the absolute and .unqualified ownership of the canals, with the full power to manage the same, and an easement in any part of the canal lands for railroad pur*258poses is inconsistent with the constitutional provisions above referred to, and the Legislature not having authorized any different contract than such as the law contemplates, the instrument bearing date of July 21,1911, and which purports to be an agreement between the State and the relator, is not of binding obligation, because beyond the authority conferred by law. It is the province of the writ of mandamus to enforce clear legal rights, and it should not be extended to decree specific performance of contracts which are clearly in excess of the authority vested in State officials, and it certainly should not go to the extent of commanding a person who is not a party to the proceeding, as is attempted in the direction to the special examiner and appraiser who is directed to procure the execution of a conveyance from the proper State officers, whoever they may be.

The order appealed from should be reversed, with costs.

All concurred, except Kellogg- and Howard, JJ., who voted for affirmance as to the mandamus to the Comptroller for the money damages.

Final order reversed, with costs, and motion for peremptory writ of mandamus denied, with ten dollars costs.