#### David Grind, Plaintiff, *v.*The American Pipe and Construction Company, Defendant.

(Supreme Court, Montgomery Trial Term,

December, 1911.)

Canals—Acquiring land — Notice to owner.

Ejectment — Evidence — Sufficiency of plaintiff’s evidence — To prove title.

Where, in an action to recover real property which was appropriated by the State nearly seventy years ago, the proof is insufficient to sustain title in the plaintiff, by adverse possession, he cannot maintain the action against one in peaceable possession of the property with the consent of the State.

Where the State attempts to appropriate for the Barge canal land owned by a foreign corporation, or by a nonresident of the State, service of notice upon one who was neither connected with the corporate owner nor the agent of the individual owner is ineffectual.

■ Where the statute, pursuant to which the State appropriated the land of a nonresident owner, provided that if personal service of the notice .could not be made upon the owner within the State, after efforts which in the judgment of the superintendent of public works were reasonable he might make service of the notice by filing it with the clerk of the county where the property was located and that from the time of such service the entry upon and the appropriation by the State should be deemed complete and the notice so served should be conclusive evidence of such entry and appropriation and of the quantity and boundaries of the lands appropriated, the filing of such a notice with the clerk of the county completes the service; and the filing of a certificate by the superintendent of public works that he was unable to' make personal service on the owner within the 'State is unnecessary.

The State has a right to acquire the property of an individual without notice, provided he has an opportunity for a fair and full hearing on the question of compensation; and, in a condemna- - tion proceeding to acquire land for canal purposes, only such notice as the statute provides need be given.

*571Action to recover real property.

Countryman, Nellis & Du Bois, for plaintiff.

J. BL Dealy, for defendant.

Kellogg, J. A., J.

This action was commenced June 14, 1911, and is brought to recover possession of' certain real property in the village of Canajoharie lying upon the south bank of the Mohawk river, and on the west bank of Canajoharie creek.

The plaintiff claims to have acquired title January 12, 1911, by purchase at á sale under foreclosure of a mortgage executed by the Water Supply Company, of which the plaintiff was the president.

The parcel in question contains one and seven-tenths acres of land, described as a parallelogram extending 525 feet southerly from the river and 142% feet westerly from the creek. Upon this parcel there had been erected a machine shop, which was used by the defendant in the progress of its work as a contractor of the State of New York constructing a portion of the Barge canal, ■ adjacent to the premises in dispute.

This building was erected by the defendant while negotiating with the agent of the Water Supply Company in regard to procuring a lease of the premises in question. The agent, having no authority to execute the lease, transmitted the proposed document to his principal, the authorized of- . fleers of which refused to sign it.

On the 15th day of March, 1911, notice was served by the plaintiff upon the defendant to remove from the premises; and, upon his failure to do so, this action has been brought, also demanding damages for the use and occupation of the machine shop constructed by the defendant itself upon the' premises in dispute.

The plaintiff is a resident of the State of Pennsylvania and the Water Supply Company is a corporation of the State of New Jersey.

*572It appears from the evidence that, about the time of the enlargement of the Erie canal, in 1842-, lands were appropriated by the State for the purpose of straightening Canajoharie creek. At the point in question the *“*blue line,” indicating upon the map the westerly boundary of the lands thus appropriated, was drawn slightly to the west of the creek as it at that time flowed.. Since that time the creek has somewhat diverged to the east, increasing the area of land between its west bank and the “ blue line.”

Within the limits of the lands thus appropriated by the 'State, as located upon the maps in the State Engineer’s ofSce, which are made evidence of the State’s title (Canal Law, § 5 ; Laws of 1837, chap. 451, § 6; Carpenter v. City of Cohoes, 81 N. Y. 21), lies the major portion of the land in dispute. This land having been appropriated by the State nearly seventy years ago, and there being no sufficient proof of acquisition of title by the plaintiff by adverse possession, he cannot maintain an action to eject therefrom one who is in peaceful possession with the consent of the true owner, the State of Hew.York.

A minor portion of the premises in dispute, however, is not within the appropriation indicated by the old “ blue line ” upon the State map and consists of two small triangular parcels of land. One of these the State of Hew York attempted to appropriate in Hovember, 1910, while the Water Supply Company was the owner; this parcel contains less than one-fifth of one acre. • The remaining parcel the State attempted to appropriate in May, 1911, subsequently to the acquisition thereof by the plaintiff, but prior to the commencement of this action. This parcel contains less than one-fourth of one acre of land. It is claimed by plaintiff, however, that these appropriations were not legally made, and that, therefore, the title did not pass to the State.

This contention arises from the fact that no.notice was served upon the owners. At the time of the attempted appropriation from the. Water Supply Company it was a foreign corporation; and at the- time of the attempted appropr" ation from the plaintiff he was á resident of the State *573of Pennsylvania: The notice in both cases was served upon one Charles E. 'Shultz, who, it appears, was neither connected with the Water Supply Company, nor an agent of the plaintiff. The affidavit of Captain Houghtailing shows that he served upon Shultz as president of the “ Water Company,” the word *“*Supply ” being erased from the title of the company as originally written in the affidavit, and upon the said Shultz as agent for the owner, David Gring. This service was, undoubtedly, ineffectual, but the statute, however, provides: “ 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 statute further provides in the same section that the notice and proof of service thereof may be recorded in the office of the county clerk and such records shall constitute the *prima facie*evidence of the due service thereof.

The notices in question were both *filed*and recorded.

The only purpose for which they could legally and properly he filed was to make service thereof, as required by the statute when the superintendent was unable to serve notice upon the owner personally within the State. The fact that he filed these notices in the county clerk’s office shows that he was not satisfied with the attempted service upon -Shultz and was taking this method to procure substituted service as permitted by law. It is quite clear that, in many cases, this would'be the only method of service available. Frequently instances must arise of doubtful or disputed ownership and other oases, similar to the one now under consideration, ' where the owners are foreign corporations and *574nonresidents, in which case personal service within the State may he impossible.

The contention of the plaintiff that the superintendent should have filed with the notice a, certificate that he was unable to serve notice upon the owner personally within this State, after making efforts to do so which in his judgment are under the circumstances reasonable and proper, is without force. The statute does not require such a certificate, and the mere filing of the notice by the superintendent is evidence of what his “ judgment ” in the matter is.

It is not necessary that' notice should be given to the owner except as provided by statute. The State has a right to acquire the property of an individual without any notice whatever, provided he has an opportunity for a full and fair hearing on the. question of compensation. The statutes ■under which the canal lands were originally acquired contained no provision for serving notice upon the owner in any manner. 1 E. S. 220, § 16; Laws of 1835, chap. 274, § 5. The constitutionality of these and similar acts has been asserted in People v. Adirondack R. Co., 160 N. Y. 225, 240, 241.

The only notice which the owners were entitled to have of the appropriation itself is such as is provided by statute, and the constitutional rights of these owners were not invaded by the provision that the notice might be filed in the county clerk’s office. Upon such filing the appropriation was complete, and the plaintiff had a right to prosecute his claim for such appropriation by the State, against which, so far as these later appropriations are concerned, his true remedy lies and not against this defendant.

The complaint should be dismissed upon the merits, with costs. ■ '

Complaint dismissed, with costs.