#### Jesse Yaw, App’lt, *v.*The State of New York, Resp’t.

*(Court of Appeals, Second Division,*

*Filed June 2, 1891.)*

Canals—Lands taken fob—Limitation of action fob such taking—1 R. S., CHAP. 9, TITLE 9, ART. 3, § 49.

The year within which a claimant by § 49, art. 3, tit. 9, chap. 9 of 1R. S. is required to file his claim or be forever barred from recovering compensation, does not begin to run, as to lands permanently appropriated, until the quantity has been determined by the officers of the state and its boundary lines described on "maps which they are authorized to make and file, or marked on the ground by monuments in such a manner that the owner had the means of ascertaining the quantity and boundaries of the land to be taken.

Appeal from an award of the board of claims dismissing the proceedings and awarding nothing for -lands appropriated by the state for the construction of the new Oneida Lake canal, on the ground that right to recover damages is barred by the statute of limitations.

*M. J.*Shoecraft, for app’lt; *J. W.*Hogan, deputy attorney general, for resp’t.

Follett, Ch. J.

Prior to February 8, 1878, the date of the appointment of the first superintendent of public works, the .board' of canal commissioners had the general care and superintendence of the canals of this state, with power to appropriate, permanently or temporarily, lands necessary for their construction or maintenance. Const. Art. 5, § 3, as amended in 1876; 1 R. S., 220. §§9,16.

The construction of the new Oneida Lake canal was authorized by" chap. 934 of the Laws of 1867, pursuant to which it was after-wards built, and in the course of its construction the state permanently appropriated about eight acres, and temporarily appropriated about twelve acres of the claimant’s land, for which no compensation has been made. On the 30th of January, 1871, the claimant filed his claim for damages, which was tried by the board of canal appraisers, which awarded the claimant nothing, on the ground that the statute of limitations was a bar. Upon an appeal to the canal board a hearing was awarded, which was had before the board of claims, pursuant to chapter 205 of the Laws of 1883, which disallowed the claim and dismissed the proceedings by an order entered May 5, 1886, upon the ground that the claim was barred by the statute of limitations, from which order an appeal to this court was taken.

*61The record which we are called on to review is a very unsatisfactory one. The statute regulating the practice of the board of claims provides: “ Upon the hearing of all claims before the board, the rule of evidence now prevailing in the courts of record of this state shall be observed, and the practice upon such hearing of cláims and taking appeals from the final order or award made therein shall conform, as near as may be, to the practice now prevailing in the supreme court of this state upon the trial of actions, and upon appeal.” Chap. 205, Laws 1883, § 11, as amended by chap. 60, Laws 1884. Under this statute decisions of the board of claims should be in writing, signed by all or a majority of the commissioners, and separately stating the facts found and the conclusions of law, pursuant to the practice in the supreme court, as prescribed by §§ 1010 and 1022 of the Code of Civil Procedure. Again, the eighth section of chapter 205 of the Laws of 1883 provides: Sec. 8. On the termination of a hearing before the “ board of claims, the commissioners, or any two of them, shall make and assign (sign) the award of the board, which shall contain the names of the persons interested, the names of the attorneys, if any, who appeared for the claimant, or by whom the claim was made, the amount allowed the claimant, if any, and if it be a case where the state seeks to appropriate, or has appropriated lands for public use, a description by metes and bounds of the land appropriated and for which the award is made, and what amount, if any, the board has deducted from the claim for claims of the state against the claimant, or payments, an entry of which shall be made in detail by the clerk of said board in the book kept by him for that purpose, which entry shall be signed by the commissioners making such award.”

The final order or award contains no description of the lands appropriated, nor does it show what facts were deemed to be established by the evidence, nor is it signed by any of the commissioners, and this court is compelled to decide this appeal by an examination of the evidence, which is far from giving a satisfactory account of the proceedings taken by the state, when taken, or how much land the state claims to have appropriated, either permanently or temporarily.

It appears that October 23, 1867, it was resolved by the contracting board to build a new canal on a line laid down on the map theretofore prepared and then exhibited by the state engineer and surveyor, and December 18, 1867, the construction of the canal was let. The lines showing the permanent location of the land taken for its construction were partly established and marked on the ground by stakes in 1868, but this work was not completed until 1870. It does not appear when, if ever, the lines were established on the claimant’s farm. The work of constructing the canal was begun in May, 1868, was continued until October or December of that year, when it was suspended, was recommenced in June, 1874, and continued until January, 1875, when it was suspended for a time, was afterwards resumed, and was in progress at the time of the hearing of this claim by the board of canal appraisers in September, 1877.

*62We think the year within which the claimant was, by the forty-ninth section of article 3, title 9, chap. 9 of the first part of the Revised Statutes, required to file his claim or be forever barred from recovering compensation, does not begin to run, as to lands permanently appropriated, until the quantity has been determined by the officers of the state and its boundary lines described on maps which they are authorized to make and file, or marked on the ground by monuments in such a manner that the owner had the means of ascertaining the quantity and boundaries of the land to be taken. The case does not show that the state described the lands which it proposed to appropriate, or that it described the boundaries on the ground a year before the claimant filed his claim. As before stated, it appears that the exterior or blue lines were not all established until some time in 1870 ; there is nothing in the evidence warranting the board in inferring that such work was completed before January 30th of that year. As to the land temporarily taken, the statute did not begin to run against the claimant until the state had ceased to use it; for until that time the claimant could not ascertain the extent of his damages, or the length of time which he would be deprived of its use. There is nothing in the case justifying the conclusion that the state had ceased to occupy the lands temporarily taken for more than a year prior to the date of filing the claim; on the contrary, the undisputed evidence is that the work of construction was not completed until long after the claim was filed. The language of the court of appeals, in *Corkings*v. *The State,*99 N. Y., 491, 499, is particularly applicable to this case. It was there said : “ When the state, to a just claim, such as this is found to be, has no better or other defense than the statute of limitations, it should at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty.”

The award should be reversed and a rehearing granted before the board of claims, with costs to abide the event.

All concur.