#### Ontario Knitting Company, Claimant, *v.*The State of New York.

No. 9485.

(Court of Claims, State of New York,

September, 1910.)

Canals — Acquiring land — Necessity — 'Judgment of State Engineer not conclusive.

The judgment of the State Engineer is not necessarily conclusive upon the State as to the necessity for the appropriation of lands for canal purposes; and, where he goes outside the line of the canal, as fixed by the plans finally approved by the canal board, and appropriates land that will not be occupied or used by the State, bis appropriation of such lands is unauthorized.

No claim can be maintained against the State for lands covered by such an 'appropriation, although at the time it was made a change of the original plans was contemplated, which, however, was never approved or assented to by the canal board, though such change would have required all the lands involved in such appropriation.

*146Claim against the State of New York for lands alleged to have been taken by the State for canal purposes.

Bulger & Bartlett, for claimant.

Edward R. O’Malley, Attorney-General, for State.

Swift, J.

This claim was filed to recover the value of certain real estate, including water rights of the claimant, situate in the city of Oswego, N. Y., which claimant alleges was appropriated by the State for the purposes of the Barge canal. The State denies that any legal appropriation of claimant’s property was made. This contention on the part of the State presents two questions to the court.

*First.*Was the property of claimant legally appropriated by the State ?

*Second.*If it was, what was the fair market value thereof at the time of such appropriation?

It is conceded that a notice of appropriation with the accompanying map and description of the property was served upon claimant and filed as required by law, and that all formalities required by statute were complied with, January 8, 1908.

. The question of whether this constituted a legal appropriation of claimant’s property requires a construction of the Barge Canal Law. Section 4 of that act, as it existed on the 8th day of January, 1908, reads as follows: *“*The state engineer may enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals, and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary. An accurate survey and map of all such lands ¿hall be made by the state engineer who shall annex thereto his certificate that the lands therein described have been appropriated for the use of the canals of the state.” That on the filing and service of the notice, as provided by the canal law, the appropriation shall be deemed complete, and such notice so served shall be conclusive evidence of the entry and appropriation, and of the quantities and boundaries of the land appropriated.”

*147Claimant contends that this section of the Canal Law makes the State Engineer the sole arbiter as to the lands to be taken and that the judgment of the State Engineer in that regard, when once exercised, no matter how, is final and conclusive upon the State. It is true that the State Engineer is a constitutional officer, and that the State, when it acts must do so through a duly authorized agent. It can act in no other way. There is no doubt that the State Engineer acted -as the agent of the State in acquiring lauds for canal purposes. LIow far is the State bound by the acts of its authorized agents? The same law applies to the State that applies to an individual. A .principal is bound by the act of an agent acting within and in accordance with the authority conferred upon him, and no further. Litchfield v. Bond, 186 N. Y. 66.

I think section 4 and section 6 of the Barge Canal Act should be read and construed together. Section 6 is as follows : “All the work herein authorized shall be done by contract. Before any such contract shall be made, the state engineer shall divide the whole work into sections, or porlions, as may be deemed for the best interests of the state in contracting for the same, and shall make maps, plans and specifications for the work to be done, and materials furnished for each of the sections into which said work is divided, and shall ascertain with all practicable accuracy the quantity of embankment, excavation and masonry, the quantity and quality of all materials to be used, and all other items of work to be placed under contract, and make a detailed estimate of the cost of the same, and a statement thereof with the said maps, plans and specifications when adopted by the canal board shall be filed in the office of the superintendent of public works, and publicly exhibited to every person proposing or desiring to make a proposal for such work. The quantities contained in said statement shall be used in determining the cost of the work, according to the different proposals received, and when the contracts for any such work are awarded, any such statement with the maps, plans and specifications, and all other papers relating to such work, and which may be necessary to identify the plan *148and extent of the work embraced in such contract, shall he filed in the office of the state engineer, with a certificate of the superintendent of public works stating the time and place of their exhibition. Ko alterations shall be made in any such map, plan or specification, or the plan of any work under contract during its progress, except with the consent and approval of the superintendent of public works and the state engineer, nor unless a description of such alteration and such approval he in writing and signed by the parties making the same, and a copy thereof filed in the office of the state engineer. Ko change of plan or specification which will increase the expense of any such work, or create any claim against the state for damages arising therefrom, shall he made, unless a written statement setting forth the object of the change, its character, amount and the expense thereof is submitted to the canal hoard and their assent thereto at a meeting when the state engineer was present is obtained.”

This section 0 requires the State Engineer, among other things, to make maps, plans and specifications for the work to be clone. Plans were made for the construction of tho Barge canal opposite claimant’s property in 1907. The first plan proposed a building of a wall which would serve as an underpinning for part of the westerly wall of claimant’s mill and the easterly wall .of the canal.

The easterly line of land to be used for the Barge canal, as shown by this map, was the easterly blue line of the old canal and did not purport to include any of claimant’s property. The plan of making the easterly wall of the canal the westerly wall and underpinning of claimant’s property was eliminated, as shown hv sheet Ko. 32, of Exhibit 106. These plans, as shown by sheets 1, 5, 32 and 35 of Exhibit 106, were approved by the Canal Board on May 28, 1907, and filed in the office of the Superintendent of Public "Works June 2'5, 1907, and, as approved and filed, did not interfere with the claimant’s property, hut put the canal westerly of-it. 'Contract Ko. 35, for the construction of the canal adjacent to claimant’s property, was made September 16, 1907. *149In this contract the plan of underpinning claimant’s property was eliminated.

The State Engineer made the map, plans and specifica*tions which accompanied and were a part of contract Eo. 3'5. The construction of the canal at that point leaves the tow-path of' the old canal westerly of claimant’s property, and the easterly bank of the Barg© canal is about twelve feet- westerly of claimant’s property. The 'State has not and will not, in the construction of the Barge canal, occupy or use any of the property of claimant described in the notice of appropriation served upon the claimant. The claimant’s property is useless to the- State for the purposes of the Barge canal, and never was necessary for that purpose.

Contract Eo. 35 was let in September, 1907. Work was in progress under this contract at the time of the alleged appropriation. I do not- think that section 6 should he held to apply only and solely to the work to he done. It has a broader interpretation. It includes the general plan of construction under the contract in every sense, and was intended to protect the State from unauthorized changes in the plans after a contract had been made and work was in progress under it. Any change of plan which would increase the expense of any such work, or create any claim against the State for damages arising therefrom, could not he made, after the contract had been executed and work begun under it, except in the manner provided by law, which required the approval of the Canal Board at a meeting when the State Engineer was present. The alleged appropriation of claimant’s property was in January, 1908.

I am of the opinion that this was a change in the plan of constructing the canal, as it existed when contract Eo. 35 was made and work commenced. The plan when this contract was let did not contemplate or provide for the taking of any of claimant’s property, and the plan of construction was outside of and westerly of claimant’s property. If the plans approved in May, 1907, by the Canal Board, did not contemplate the talcing of claimant’s property, then the taking of claimant’s property for the purposes of this work under contract Eo. 35 must have been a change or altera*150tion of the plans first made, and under which work was in progress. This change or alteration never was approved or assented to by the Oanal Board. When the Superintendent of Public Works became acquáinted with the fact and knew of this alleged appropriation, he disapproved of the same; and the Oanal Board, so far as it was in their power, repudiated the change of plan in taking claimant’s property.

This change certainly increased the expense of the work and created a claim against the State for damages arising therefrom. This claim under consideration for over $1,000,000 arises from such change.

The claimant had notice that the Canal Board did not approve of the taking of this property while the mill was still in operation, and some portion of the mill was operated for a year and a half after the alleged appropriation.

Great force is given by claimant to section 4 of the Canal Law, giving the State Engineer the power to take possession of, enter upon and use, for the purposes of the canal, such lands, structures and waters as shall in his judgment be necessary.

The State has no power to appropriate the private property of a citizen beyond the necessities of the work proposed and could not delegate to any officer or agent a power it did not possess.

The fact that the Barge canal is being constructed entirely outside of any of claimant’s property is conclusive proof to my mind that the taking of this property was not necessary for the purposes of this work.

The judgment of the State Engineer in appropriating property must be exercis'ed in good faith and with sound discretion. Jerome v. Ross, *7*Johns. Ch. 315.

In this case the plans had been made, contract let, and work was in progress under which claimant’s lands were not to be interfered with. It is true, there was some discussion as to taking a part of claimant’s property upon which to construct a wall which was to serve as an underpinning for a portion of the west wall of claimant’s property and to form the easterly wall of the canal, but this proposition was eliminated before the contract for the work was made.

*151What was there to call for the exercise of any judgment on the part of the State Engineer as to the taking of claimant’s property?. The work was progressing and has since progressed and will be completed, without the necessity of using any of claimant’s property. These lands were not needful or conducive to the prosecution of this work.

I am of the opinion that the State Engineer could not, at the time this alleged appropriation was made, make any appropriation which would change the plan of contract "Ko. 35, increase the expense under it, or create a claim against the State without the approval of the Oanal Board. The claim should be dismissed.

Rodenbeck, J.

(concurring). The claimant is the owner of land in the city of Oswego in Oswego county in the State of New York upon which there is an extensive knitting mill plant, the larger portion of which it is claimed was appropriated by the State, for which the claimant seeks compensation in the sum of $1,019,051.78.

, The main portion of the property was bounded by the old State Oswego canal on the west and by a private hydraulic canal on the east, the intervening space between these two waterways being almost entirely occupied by buildings used in connection with claimant’s business.

Both the State canal and the hydraulic canal began at the Oswego river a short distance south of the property, being separated where the claimant’s property is situated by a narrow strip of land upon which the claimant’s predecessors had constructed the knitting mill in question, the hydraulic canal being con trolled by headgates and the State canal by a lock.

Across the hydraulic canal to the éast is a piece of land rising from the hydraulic canal to Eirst street, part of which is occupied by the Oswego Shade Cloth Company and part of which is owned by the claimant, giving it access by means of a bridge from its main buildings to Eirst street.

West of claimant’s property laid the old Oswego canal, as stated, and west of the canal the Oswego river, the old Oswego canal at this point having been built along the east*152erly side of the Oswego river with a towing path adjacent to claimant’s property.

Chapter 147 of the Laws of 1903 of the State, known as the Barge Canal Act, approved by a vote of the people of the State, authorized the issue of $101,000,000, in bonds for the improvement of the Erie, Oswego and Ohamplain canals and therein provided that the route of the proposed Oswego canal should follow at this point the route of the existing Oswego canal, subject to changes authorized by the statute. (§ 3.)

The statute also provides that the work should be done by contract and that, before any contract should be made, the State Engineer should divide the whole work into sections and should make maps, plans and specifications for the work and a detailed estimate of the cost thereof, and that his estimate of the cost, with the maps, plans and specifications “when adopted by the Canal Board,” should.be filed in his office and a copy thereof filed in the office of the Superintendent of Public Works. Laws of 1903, chap. 147, § O.

In pursuance of this statute the State Engineer, in the year 1906, prepared maps, plans and specifications for the portion of the improved canal which adjoined claimant’s property on the west and which section of the improvement became known as contract Eo. 35.

According to the maps, plans and specifications thus prepared, the enlarged canal followed the line of the old canal at the location of the claimant’s property, but the towing path'which formerly separated tire canal from the buildings was to be removed; and, because claimant’s walls did not rest entirely on a rock foundation, the walls were to be underpinned, the easterly wall of the .canal abutting directly on the west wall of claimant’s buildings.

These maps, plans and specifications showed, with many other details, the exterior lines of the canal, including proposed appropriations for the construction and maintenance of the canal, and revealed the fact that no part of the canal itself was on claimant’s land, the only connection being the requirement as to underpinning its walls, except a narrow strip of land the title to which was disputed by the State.

*153The question as to the right to interfere with claimant’s buildings by underpinning arose between the claimant and the State and, on December 24, 1906, the Attorney-General of the Stato advised the Deputy State Engineer that the State had no right to go upon the land of claimant without its consent to do the work called for under the proposed plans.

Thereupon, on December 28, 1906, the maps, plans and specifications for contract Ko. 35 were approved by the advisory board of State experts and later by the Stale Canal Board, with the exception of the work of underpinning called for on claimant’s premises, which was eliminated from the contract by the words written upon the maps, plans and specifications, *“*not included in contract 35,” and left for future consideration.

A completed canal could have been constructed at this point under the proposed maps, plans and specifications as changed; but it is urged by the claimant that the easterly wall of the canal which was about four feet wide at the top would not be sufficient to sustain the lateral pressure upon it, in case of any interference by claimant with its walls or with the earth back of or under them.

The statute of 1903 (chap. 147) referred to, approved by the people, provided, at the time of the alleged appropriation, with reference to the appropriation of property necessary for the now canal, as follows: “ The state engineer may enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary. An accurate survey and map of all such lands shall be made by the stato engineer who shall annex thereto his certificate, that the lands therein described have been appropriated for the use of the canals of the state. Such map, survey and certificate shall be filed in the office of the state engineer, and a duplicate copy thereof, duly certified by the state engineer to be such duplicate copy, shall also be filed in the office of the superintendent of public works. The superintendent of public works shall thereupon serve upon *154the owner of any real property so appropriated a notice of the filing and of the date of filing of such map, survey and certificate in his office, which notice shall also specifically describe that portion of such real property belonging to such owner which has been so appropriated. If the superintendent of public works shall not be able to serve said notice upon the owner personally within this state after making efforts so to do, which in his judgment are under the circumstances reasonable and proper, he may serve the same by filing it with the clerk of the county wherein the property so appropriated is situate. From the time of the service of such notice, the entry upon and the appropriation by the state of the real property therein described for the purposes of the work and improvement provided for by this act, shall be deemed complete, and such notice so served shall be conclusive evidence of such entry, and appropriation and of the quantity and boundaries of the lands appropriated. The superintendent of public works may cause a duplicate copy of such notice, with an affidavit of due service thereof on such owner, to be recorded in the books used for recording deeds in the office of the county clerk of any county in the state where any of the property described in ■such notice is situated, and the record of such notice and such proof of service shall be prima facie evidence of the due service thereof.” Laws of 1903, chap. 147, § 4, as am’d by Laws of 1906, chap. 365.

The State Engineer did not take possession of any part of claimant’s property but, on December 24, 1907, the Division State Engineer certified to a map embracing the property of claimant between the State canal and the hydraulic canal; on December 31, 1907, the Special Deputy State Engineer certified that the land described on the map had been permanently appropriated by the State; on January 2, 1908, a copy of the map was filed in the office of the State Superintendent of Public Works who, on January 8, 1908, caused a copy of the map and notice of appropriation to be served upon claimant.

On April 15, 1908, the Superintendent of Public Works, questioning the necessity and legality of the appropriation, *155wrote to the State Engineer asking for the reasons far the appropriation and, after some correspondence on the subject between the State Engineer, Deputy State Engineer and Attorney-General, the Canal Board, on April 30, 1908, adopted a resolution requesting the State Engineer to appropriate only so much of claimant’s property as was necessary to shore up its walls, or to alter the plans so as to avoid any appropriation.

Thereafter, the maps, plans and specifications were changed by moving the canal to the west, thus obviating the necessity for the underpinning-of claimant’s walls; and at no time has claimant’s property been actually taken possession of by the State or any construction made or material placed thereon.

Thereafter, claimant filed this claim which the State seeks to defeat, on the ground that the appropriation was unnecessary and unauthorized; and, while all the formalities of the statute relating to appropriations seem to have been complied with, except that the State never actually entered upon or took possession of any part of claimant’s property, claimant insists that the service of the notice of appropriation upon it was final and conclusive and that the alleged appropriation cannot be attacked by the State.

From this brief statement of the facts and from the other evidence introduced upon the trial, it appears that there was no necessity for the appropriation' of claimant’s property. The line of the canal shown upon the maps, plans and specifications did not include any of the claimant’s property, so that no excuse for the appropriation can be found in the description of the canal and its works as shown upon the maps, plans and specifications, except as to an insignificant portion the title to which is disputed by the State. There was nothing on the maps, plans and specifications, or any evidence whatever, that the State desired at any time to do anything more than underpin claimant’s walls. The towing path of the old canal which adjoins its property on the west was to be removed, and a substantial canal wall was to be built adjacent to claimant’s walls. In making its excavation for the canal, there was no obligation on the part *156of the State to shore up claimant’s property (1 Cyc. 766); nevertheless, the claimant refused to allow the work to proceed, and the underpinning was eliminated from the contract, and all necessity for tlio appropriation of any part of the property ceased. Unless there was seme distinct purpose for which the property or some part of it was needed, there was no authority for taking more than was shown within the lines of tho canal and the maps and plans. The portion of the canal contract relating to underpinning was eliminated and never had been approved by the Canal Board, as required by the statute; and there never was any necessity for an appropriation, even for underpinning. When the underpinning was eliminated from the contract, there were no maps, plans or specifications for the underpinning, upon which any legal appropriation could be made. The maps, plans and specifications were required to be approved by the Canal Board before the work could be let, and no legal appropriation could bo made until this approval was .had. When the alleged appropriation was made, the situation was the same as if the work of underpinning had not been planned. The State Engineer was not called as a witness in the case, but there appears in evidence a letter addressed to him by the Deputy State Engineer which may be assumed to embody the reasons which prompted the State Engineer to make the appropriation. One of the reasons stated in this letter is that the easterly wall of the canal as planned was not sufficiently strong to hold the water in the canal without lateral pressure against the walls of the building, and that, if at any time there should be any excavation made on the property adjacent to the canal wall, it'would result in the destruction of the wall. This difficulty could have been obviated by strengthening the wall of the canal and is not a justification for the appropriation of the entire property of the claimant. ITe also urges that any further encroachment of the canal upon the bed of the river would cause the water to back up in the tail-races of the mills on the opposite side of the river, thereby incurring claims for damages against the State; but this reason anticipates damages which may never be claimed or recovered and is not a *157sound reason for the appropriation of the entire property. The final ground advanced is that the wall of the canal is to he only four feet wide on the top, and that there would he no available room for terminal facilities; but no appropriation for terminal facilities could be made by the State Engineer, excejit for some distinct purpose approved by the Canal Board and *“*for boats tying up while waiting to pass the locks ” the entire property was unnecessary. The Superintendent of Public Works requested the State Engineer to give his reasons for the appropriation, hut no reply 'directly was made thereto, other than the letter referred to of the Deputy Engineer to the State Engineer which was' presented at a meeting of the Canal Board.

The plans that were finally carried out provided for moving the easterly wall of the canal to the west of claimant’s property, leaving an intervening space of earth and obviating all necessity for the appropriation of claimant’s property even for underpinning. At no time was there any legal authority for interfering with claimant’s walls; and, when the alleged appropriation was made, the State Engineer anticipated the approval of the plans for the underpinning and acted arbitrarily and without authority, and the alleged appropriation was entirely ineffectual and void.

The discretionary power of the State Engineer to make the appropriation did not give him the power to bind the State by any appropriation that he saw fit to make. In making the appropriation, the State Engineer was not only limited by the .statute under which he was acting (Laws of 1903', chap. 147), hut he, as well as the State itself, was controlled hy the provisions of the State Constitution (Art. 1, § 6).

The statutes of the State forbade the appropriation. The State had delegated the power to malee appropriations for the new canal and hy statute had provided that the State Engineer might, enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the canals should *“*in his judgment he necessary.” Laws of 1903, chap. 147, as ant’d hy Laws of 1906, chap. 196. This language did not give the State Engineer unrestricted *158authority to make appropriations, but limited him to such as were in his judgment *“*necessary.” The maps, plans and specifications for the improvement described a certain route, and he was confined to that route. They also show the exterior lines of the canal; and he could no more go outside of those lines, except for some specified public purpose, than he could select another route entirely. If he goes outside of these lines for spoil area, necessary canal structures, or other necessary purposes, it must distinctly appear that the land is necessary; and, if not necessary, no legal appropriation can be made. He cannot act arbitrarily. Wherein his acts are reasonable they are valid, and wherein they are unreasonable they are void. He must exercise a sound discretion. Each case must stand upon its own facts. In these cases there is a middle ground that is debatable, and on one side lie those cases where the appropriation is clearly valid and on the other those where it is clearly void. The validity of each appropriation, when attacked by either party, is for the courts; and it is for the courts to say whether or not the appropriation was made in the exercise of a sound discretion and in good faith. Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 332; Jerome v. Ross, 7 Johns. Ch. 315. Even if it be assumed that underpinning was required, such work did not justify an appropriation of the entire property. Sixth Avenue R. R. Co. v. Kerr, 72 N. Y; 330; Heyneman v. Blake, 19 Cal. 572; New Orleans Pacific Railway Company v. Gay, 32 La. 471.

Where a statute authorized a -State Engineer to appropriate such property as in his judgment is necessary, he is required to act in good faith, and with, a sound discretion, and not arbitrarily or capriciously; and an appropriation made without the exercise of a sound judgment which transcends the necessity of the public use is unauthorized, illegal and void.

The State Constitution forbade the appropriation of the entire property. The Constitution says that no person shall “ be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” Art. 1, § 6. This is a re*159striction upon the authority of the State itself to take property under its power of eminent domain. The State could not invest the State Engineer with discretion to go beyond the language of the Constitution. The power of eminent domain is a sovereign right, existing independently of the Constitution; and the language of the Constitution is a restriction upon this right. Under its terms property can only be taken for public use. If the taking does not serve a useful public purpose, it is unauthorized. Likewise it can be taken only when *“*necessary.” Whenever property is talren that is not necessary, the constitutional limitation has been violated. It is open to inquiry, therefore, under the mandate of the Constitution itself, whether or not the appropriation in this case is for a public purpose and whether or not it is necessary. If it is not necessary, it cannot be for a public purpose, but must be for some other purpose not authorized. *“*The constitution,” says Chief Judge Savage in blatter of Albany Street, 11 Wend. 151, “ by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the use of another.” If private property.can be taken that is not necessary for public use, where will the line be drawn ? Such a power would open the door for an easy evasion of the Constitution and malee possible the appropriation of private property for private purposes. It is because of the Constitution that the State and municipal bodies, in appropriating property for highway purposes, take to the lines of the highway; and, if the lines intersect a building, appropriate not the whole of the building, but what is necessary for the highway and no more. The State cannot take the whole of a building, though it would be more profitable than cutting off a piece of it, for such a taking would not be for a public purpose, but would impliedly be for some other purpose. It is no justification for an appropriation that it is more profitable to take the whole than a part or that the State can sell what it does not need. If such a course could be taken, there would be no force in the constitutional limitation; and private property would be without the protection that is *160guaranteed to it by .the Constitution. To sustain an alleged appropriation, therefore, it must appear, if disputed, that the property is necessary and that it is taken for the public use, both of which questions are subject to review by the courts.

The rule in this State is that the action of the Legislature as to the nature of the use to which the property is to be put, that is, as to whether or not it is a public use (Matter of Deansville Cemetery Assn., 66 N. Y. 569; Matter of Niagara Falls & Whirlpool R. R. Co., 108 id. 375; Waterloo Woolen Mfg. Co. v. Shanahan, 128 id. 345; Pocantico Water Wks. Co. v. Bird, 130 id. 249), -as well as the exercise of the power to condemn, that is, as to the necessity of the public use (N. Y. & H. R. Co. v. Kipp, 46 N. Y. 546; N. Y. & N. Y. R. R. Co. v. M. G. L. Co., 63 id. 326; Matter of Union E. R. R. Co., 113 id. 275; Rensselaer & Saratoga R. R. Co. v. Davis, 43 id. 137; Matter of N. Y. C. & H. R. R. Co., 77 id. 248; Matter of South Beach R. Co., 119 id. 141), is reviewable by the courts; for, if the use be not public or the necessity does not exist, the .taking is prohibited by the Constitution. This rule also prevails in other State courts .and in the Federal courts; and numerous citations to such decisions can be found in the text-books on Eminent Domain.

Lewis, in his work on Eminent Domain, says: “ We think that the constitution impliedly forbids the taking for public use of what is not necessary for such use and, therefore, though the constitution and statute are silent on the subject of necessity, that the power to take is, in every case, limited to such and so much property as is necessary for the public use in question. * * * Necessity and a public use must, in all cases, exist as a condition precedent to the legal right to enforce the remedy given to condemn, and the company (condemnor) is no«t the judge of the existence of the necessity, or of the character of the use; both belong to the courts.” § 600..

Nichols, in his work on Eminent Domain, says: “ When it is decided to take land by eminent domain, what land shall be taken and how much, are matters in the discretion of the *161Legislature, though land that manifestly 'cannot be used cannot be taken. * * * Whether there is any necessity whatever is, however, a judicial question, as a taking without necessity in such a case would be unauthorized.” § 291.

Randolph, in his work on Eminent Domain, says: “ If there is no statutory direction as to the quantity of property to be condemned, the expropriator may take as much as is necessary for the accomplishment.of the purpose. * * * The right of selection is subject, however, to judicial restraint, for the taking of more property than is necessary for the accomplishment of the purpose, is in effect, a taking for private use.” § 1&5.

Cooley, in his work on Constitutional Limitations, says: “ The taking of property must always be limited to the necessity of the case, and consequently no more can be appropriated in any instance than the proper tribunal shall adjudge to be needed for the particular use for which the appropriation is made. When a part only of a man’s premises is needed by the public, the necessity for the appropriation of that part will not. justify the talcing of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain.” 3d ed., p. 779.

In Sixth Avenue R. R. Co. v. Kerr, 72 N. Y. 330, the court said: “ The State in the exercise of the right of feminent domain, or a corporation having the delegated power, is not bound to take the entire estate, but may take and strictly should take, only such an interest and right as is necessary to be acquired to accomplish the public purpose in view. An easement merely, or a partial interest, or the right to a temporary or permanent use of property, as well as the entire estate and interest may thus be acquired as the public service may demand, and so long as the owner is compensated for the damages sustained he has no cause of complaint, but he might, if more property, or a larger estate or interest was taken than was required for public use, contend that his rights of ’property had been illegally invaded.” P. 332.

*162In Stuyvesant v. Mayor, 7 Cow. 588, the court said: *“*Neither can the state or general government transcend the powers conferred by their constitutions. Every act beyond the constitution is void; .and may be declared so by our courts of justice, whether it emanate from a general or local legislature. An unwarrantable interference with private property is equally unconstitutional and void, whether by the state legislature or a corporation. By neither can it be touched without necessity; and then, if taken, it must he upon just compensation.” P. 606.

In Bennett v. Boyle, 40 Barb. 551, the court said: *“*The law of eminent domain extends to lands needed for the public use -and no further. Private property may be taken by the state, and the title of the owners divested for this purpose, and for no other. Within this limitation the power of the legislature is indisputable, but further than this it cannot go. The use to which it is to be appropriated must be a public use. The law was so far relaxed by the constitution of 1846 as to allow private roads to be opened through private property. Until that- time not even a right of way could be taken from one man and given to another. * * * Eourth Avenue was to he enlarged so as to be of a irniform width of 120 feet. Eor this purpose a strip of land 50 feet in width for a part of -the distance, and 40 feet for the residue of the distance, was taken by force of tlie act to which I have referred, and added to the street. The powers and jurisdiction of the commissioners were limited and restrained to the lines of the avenue, as enlarged. Beyond and outside of them they could exert no power or authority whatever. It was the value of the lands taken and the improvement thereon, with the damages to be sustained by the owners by reason thereof, that the commissioners were to estimate and ascertain. This was their .office and they had no other. Buildings, such as those upon the mortgaged premises, are part and parcel of the free-bold and pass from the owner to another of to the public in all ordinary transfers, either voluntary or coercive, as the land itself passes, and as a part thereof. Where land is taken for the uses of a street or avenue such buildings and parts of buildings as *163are -within the lines of the proposed improvement, pass by force of the statute and the proceedings taken under it, to the public authorities with the land taken, the owners being thereby divested of their title; which is resumed by the public; while the residue of such buildings, or parts thereof, beyond and outside of such lines, remain to the owners with the land upon which they stand, the title thereto being untouched and unaffected by the statute and the proceedings taken under it.” P. 554.

In Embury v. Connor, 3 N. Y. 511, under a statute expressly authorizing it to do so, the city of Yew York without objection acquired, in 1838, in the widening of Ann street, the whole of a lot, only part of which was within the line of the proposed street, subsequently sold the remainder of the lot, and, twenty years thereafter, a claim was set up by the heirs of the original owner, who had been paid for the whole lot, that the city could not take more than was necessary, and they were defeated in this claim as they should have been under the facts in the case.

In Matter of Albany Street, 11 Wend. 149, under the same statute involved in Embury v. Connor, 3 N. Y. 511, upon a motion to confirm the report of commissioners for the widening of Albany street, who had taken more land than came within the lines of the improvement, the court held that against the objection of the owner such an appropriation could not be made, saying: “ The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the private use of another. It is in violation of natural right, and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient, when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporations have been supposed best qualified to take and dispose of such parcels, or gores as they have sometimes been called; and probably this assumption of power has been acquiesced in by the pro*164prietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of .the court. Suppose a case where only a few feet or even inches are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot, would the power he conceded to exist to take the whole lot, whether the owner consented or not? Or suppose the commissioners had deemed it expedient and proper in this case, in the language of the statute, to take the whole of the churchyard, the act would have been equally within the letter of the. statute with their act iu the present case, and yet no one would suppose that the Legislature ever intended to confer such a power. The quantity of the residue .of any lot cannot vary the principle. The owner may be very unwilling to part with only a few feet; and I bold it equally incompetent for tbe Legislature thus to dispose of private property, whether feet or acres are the subject of this assumed power. I am clearly of the opinion that the commissioners have no right to take the strip of land in question, against the consent of the Corporation of Trinity Church.” P. 152.

Where, therefore, the State Constitution provides that private property shall not be taken for public use without just compensation, and that no person shall he deprived of property without due process of law, and a statute for the construction of a State canal provides that the State Engineer shall take such property as in his judgment shall ho necessary, and the lines of the canal are fixed at the time of the appropriation, his judgment must be limited to the aetual necessities of the canal, as approved and legally planned; .and an appropriation outside of the lines of the canal, though consented to by the owner, not necessary for spoil, straitures or other public purposes in connection with the construction and operation of the canal, is unauthorized, illegal and void.

The State is not estopped from raising the question "as to the validity of the appropriation. The ■ provisions in the Constitution referred to were inserted for the protection of private property, hut they .also protect the State by giving notice of the limitation placed upon, it and its agents in *165taking private property. If the State exceeds its powers, its acts are void; and the question as to the validity of its acts or those of its agents can be raised by any interested person, including the State itself. There is no estoppel because it has vested a discretionary power in its agent. He must come within the limits of his actual authority (Delafield v. State, 26 Wend. 192; 156 N. Y. 366; 33 id. 11; 47 Barb. 36; Wyman’s Administrative Law, § 72), or his acts are void; •and, when he is given discretion, he must exercise a sound and not .an arbitrary judgment. People v. Fisher, 190 N. Y. 468. Every one is supposed to know the limits of a public agent’s authority and deals with him in excess of that authority at his peril. McDonald v. Mayor, 68 N. Y. 230. If the agent exceeds his authority or acts in bad faith, or in the case of an appropriation expresses an unsound judgment where discretion is vested in him, the State is not bound by his acts (Litchfield v. Bond, 186 N. Y. 66) ; and the State may raise the question when his acts are in issue. State v. Beavers, 86 N. C. 592. Where discretion is vested in him, his acts must not be the result of mere personal desires but an honest and sound expression of judgment, prompted by the discharge of a public duty; and, when it is not such an expression, the State may go back of his acts and show the facts in repudiation of his acts. Rose v. Stuyvesant, 8 Johns. 426; President, etc. v. Patchen, 8 Wend. 477.

In Poindexter v. Greenhow, 114 U. S. 270, the court says: “ The state itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that it is a lawless usurpation. * * * It is also true, in respect to the State itself, that whatever wrong is attempted in its name is imputable to its government, and not to the State, for, as it can speak and. act only by law, whatever it does say and do must be lawful. That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the State, but is the mere wrong and trespass of those in-' dividual persons who falsely speak and act in its name.” P. 290.

*166Judge Miller said, in Gibbons v. United States, 8 Wall. 269: *“*Mo government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents. In the language of Judge Story, *‘*it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it in all the operations in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.’ ” P. 274.

Bishop, in his work on Contracts, says: “ The government is never estopped, as an individual or private corporation may be, on the ground that the agent is acting under an apparent authority which is not real; the conclusive presumption that his powers are known rendering such a consequence impossible. So that the government is bound only when there is an actual authorization.” § 993.

Throop, in his work on Public Officers, says: “ Where an officer exceeds his powers; in such a case, the body for which he acts, whether it is the state, a municipal corporation, or other public organization, is not bound by his acts. * * * The government is never estopped, on the ground that its agent is acting under an apparent authority which is not real.” § 551.

It follows from the foregoing that the appropriation of the property of the claimant was unnecessary for any public use, and that the State Engineer, in attempting to make the appropriation, exceeded the authority conferred upon him by the statute and the limitations placed upon him by the State Constitution; and the claim must, therefore, be dismissed.

Judgment entered accordingly.