the inviolability of Wood creek as a common highway for the benefit of the public, for they used the creek as a boundary line dividing the lots sold. In no case has it been shown that a lot crossed the creek, or a deed made by them granted the bed of the creek where it was used as part of the navigable highway. Through various mesne conveyances from Williams the claimant became the owner of the farm in question. None of the deeds in claimant's chain of title purports to convey the bed of Wood creek. In the descriptions the boundary line running beside Wood creek stops at low-water mark. Neither did the claimant show that she or her predecessors ever exercised or claimed exclusive right in the bed of or to the waters of Wood creek.

The state proved that there had never been any legislative grant made by the commissioners of the land offce to any one of the bed or waters of Wood creek, contiguous to the Johnson farm, or on which the Johnson land abutted, and that in recent years the state had cleaned the bed or channel of the creek. I think it has been shown that Skene, by his crown patent, never became the owner of Wood creek; that the commissioners of forfeiture did not convey the bed of Wood creek to Williams; that the claimant produces no paramount title of ownership in or to said creek as against the state; that, from time immemorial, Wood creek was used as part of a route of communication between the Hudson and Lake Champlain; that it was reserved to the people "as a common highway for the benefit of the public; that the title to the creek has been in the people, and is now in the state."

At the present time the state is engaged in a work of great public benefit. It is utilizing Wood creek for the purpose of the new barge canal, canalizing it for the public good. It should be regarded as an improved highway for the benefit of the public. It has been held the state has power to impress navigability on any stream within its boundaries. See Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58; City of Oswego v. Oswego Canal Co., 6 N. Y. 257–266. The waters of Wood creek were determined navigable when the crown patent excepted the creek "for a common and public highway and reserved it for the people as a common highway for the public benefit." The state is now improving the highway-the navigation of the creek-for a general public benefit. This case would, therefore, seem to fall within the reasoning of the decision in Slingerland v. International Contg. Co., 169 N. Y. 60, 61 N. E. 995, 56 L. R. A. 494, and cases cited, wherein the court held:

"The doctrine must be regarded as settled that, whatever the rights of the owner of lands bordering upon, or within the waters of, a navigable river, they must yield when the powers of government are called into exercise for a general benefit in the improvement of navigation; and this is, of course, true, whether the power be exercised by the federal or the state government. Loss may result to the individual; but he is remediless at law. He can have no private rights in the river, which are exempt from the requirements of a public or governmental necessity."

Mr. Ladue, one of the division engineers employed by the state, testifies that the high navigable stage of the improved canal was 113.9;

flood 4.6 acres more of the claimant's land than the state sought to appropriate by its map and notice of appropriation; and that the water in the canal would be more or less controlled by the dam at Whitehall. Upon this state of facts, the claimant asks the court to award damages for 4.6 acres more than the state seeks to appropriate, upon the theory that at some time, if the water in the canal should reach the high navigable stage, the 4.6 acres would be flooded.

The second question discussed would be: Is the claimant entitled to compensation for these 4.6 acres? The barge canal act specifies how the state shall acquire property for the purposes of the canal. The provisions of the statute have been followed in this case. The state, by its map and notice, designates the amount of the claimant's land it deems it necessary to take. It has described it by metes and bounds, and specifies it appropriates 6.56 acres. The state assumes the responsibility of acquiring all the land it deems necessary to appropriate. This court has often awarded to claimants the value of the land taken, and given damages for the injury done to the remainder, or the diminished value of the balance left. But that is not this case; for here the claimant asks the court to compel the state to take more land than it certifies it needs, or to award compensation for 4.6 acres in excess of the amount mentioned in the notice of appropriation.

It was held in Bell Telephone Co. v. Parker, 187 N. Y. 303, 79 N. E. 1008, that the only property which can be taken is the precise property designated in the petition. In People ex rel. Johnson v. Village of Whitney Point, 102 N. Y. 81, 85, 86, 6 N. E. 895, 897, the court, in discussing this question, say:

"They are bound to lay it [the highway] out upon the precise line designated and follow the precise description contained in the petition. The petition was required to describe the lands to be taken. * * It is true that the variation here is not great; but, if a change in the center line of the road for one rod can be justified, it is difficult to perceive how their power could be limited. They might change the road for two rods or three rods. We think the safe and better rule * * * is to hold that the trustees in such cases must follow the precise description contained in the petition."

See, also, Eckerson v. Village of Haverstraw, 137 N. Y. 88, 32 N. E. 1111; People v. Fisher, 190 N. Y. 468, 83 N. E. 482; Hayden v. State, 132 N. Y. 533–536, 30 N. E. 961; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483, 15 N. E. 601.

It has always been held that by right of eminent domain the public can acquire no title to property which lies beyond the line of a proposed improvement, and that they can take only the land neces sary for the improvement. Bennett v. Boyle, 40 Barb. 551; Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618.

Continuing the discussion, it must be borne in mind that, up to the time of the filing of this claim, no part of this 4.6 acres had been damaged. There had been no flooding of it by the operation of the improved canal. It had suffered no injury, and it was beyond or outside of the land sought to be appropriated by the state. Whether or not it will be flooded in the future depends upon the water in the canal reaching a certain height. Whether the water in the canal will

116 N.Y.S.-17

be so controlled by the dam at Whitehall as to prevent injury, and upon other possibilities or contingencies which may or may not occur or happen in the future, it seems to me the case falls within the rule as to speculative damages, which prevents this being considered by the court. 1 Joyce, Dam. § 91, p. 83; 3 Sedg. Dam. § 1086; 4 Suth. Dam. § 1071.

Speculative damages are those which rest on conjectural circumstances, or consequences which are contingent or merely problematical, possible, or apprehended, and concerning which the degree of the probability of their occurring as a result of the original injury does not amount to a reasonable certainty. In estimating damages in condemnation proceedings, mere future or prospective contingencies or speculative damages should not be considered, as the possibility of the unskilled or improper construction of a reservoir, or, where land is taken for a pipe line, damages for the possible leaking of the pipes. 1 Joyce, Dam. p. 3, § 24; Id. p. 2247, § 2190, and cases cited.

In Medbury v. New York & Erie R. R. Co., 26 Barb. 564-567, the court held:

"Compensation for the actual loss sustained is the fundamental principle upon which our law bases the allowance of damages. It will not, indeed, make this allowance upon a calculation of speculative profits; for this would be proceeding upon contingencies, and would involve the subject too much in uncertainty. Nor will the law indemnify for remote or indirect losses."

Consequences which are contingent, speculative, or merely possible, are not to be considered in ascertaining damages. The measure of damages extends only to the direct, and not to remote or contingent, consequences, and must be determined as of the time of the award. Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305, 306; Coonley v. City of Albany, 57 Hun, 327, 10 N. Y. Supp. 512; Mott v. Lewis, 52 App. Div. 558, 65 N. Y. Supp. 31; Stowers v. Gilbert, 156 N. Y. 600, 51 N. E. 282; Matter of Brooklyn Union Elevated R. Co., 105 App. Div. 111, 93 N. Y. Supp. 924.

In holding that we cannot consider speculative damages to these 4.6 acres, I do not think the claimant is prevented from filing any subsequent claim for damages, if actionable injury be done thereon by the state. The state assumes the responsibility of appropriating as much land as is deemed necessary for the building of the canal. If it damages more land in the future, or injures the claimant beyond the present appropriation and the award made therefor, the claimant would have a subsequent claim for the loss suffered. In Hayden v. State, 132 N. Y. 533, 30 N. E. 961, the court held that an award made to a claimant for a definite quantity of land and water taken is no bar to the filing of a subsequent claim in case the state thereafter takes more than was covered by the first appropriation. This decision was cited with approval in Bell Telephone Co. v. Parker, 187 N. Y. 305, 79 N. E. 1008, and in People v. Fisher, 190 N. Y. 478, 83 N. E. 482.

In conclusion, I am of the opinion that the claimant has no paramount title as owner in the lands in the bed of Wood creek as against

state's using the bed of said stream and the waters thereof for the construction of the improved canal; that the claimant cannot recover speculative damages for the possible flooding in the future of the 4.6 acres mentioned; that the claimant is only entitled to recover the value of the 6.56 acres appropriated by the state, and such damages as the appropriation of said land has caused her.

Judgment accordingly.

(62 Misc. Rep. 84.)

STUART v. ABBEY et al.

(Chautauqua County Court. January, 1909.)

1. BONDS (§ 135*)—BREACH OF CONDITION-AMOUNT OF RECOVERY-ACTUAL DAMAGES OR PENALTY.

Under Code Civ. Proc. § 1915, providing that a bond in a penal sum, and conditioned to be void on performance of any act, has the same effect for the purpose of maintaining an action, or two or more successive actions thereon, as if it contained a covenant to pay the sum, or to perform the act specified in the condition thereof, recovery may be had on a bond in a penal sum conditioned to furnish obligee lodging, food, clothing, and to defray the expense of all things conducive to her comfort, health, and happiness, only to the amount of the actual damages suffered by reason of a violation of the condition.

[Ed. Note. For other cases, see Bonds, Cent. Dig. §§ 241-243; Dec. Dig. § 135.*]

2. BONDS (§ 64*)-CONSTRUCTION-CONDITION.

Under a bond conditioned that obligor will furnish to the obligee lodging, food, clothing, and defray the expense of all things conducive to her comfort, health, and happiness, no place being specified where obligee was to be maintained and supported, she could live where she pleased, provided her choice did not involve needless expense, not necessarily meaning thereby that she was obliged to live within the amount for which obligor was able to support her at her own home, but merely that all expenditures should be reasonable.

[Ed. Note. For other cases, see Bonds, Cent. Dig. § 67; Dec. Dig. § 64.*] Mortgage foreclosure by Phoebe A. Stuart against Myrtle A. Abbey and others. Finding for plaintiff.

Freeman L. Morris, for plaintiff.

Gibbs & Williamson, for defendant Myrtle A. Abbey.

OTTAWAY, J. The plaintiff brings this action to foreclose a mortgage upon a farm situate in the town of Ellery, Chautauqua county, N. Y., and a house and lot situate in the city of Jamestown, Chautauqua county, N. Y. The mortgage in question was executed contemporaneously with and to secure the payment of a bond in the penalty of $4,000, conditioned that Myrtle A. Abbey, the defendant, should furnish the plaintiff, Phoebe A. Stuart, good and comfortable lodging, good and wholesome food, all necessary and suitable clothing, and defray the expenses of all things conducive to her comfort, health, and happiness during her natural life, and at her death to pay all expenses of her funeral. Said mortgage provided for the payment of $2,000 according to the conditions of said bond.

The plaintiff is 78 years of age and is an aunt of the defendant

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Myrtle A. Abbey. The husband of the plaintiff died a short time prior to the execution of the bond and mortgage hereinbefore mentioned. At the time of the execution of the bond and mortgage by the defendant Myrtle A. Abbey, the plaintiff executed a deed of the premises therein described to Myrtle A. Abbey. Pursuant to the arrangement thus consummated, the plaintiff left her home in Jamestown and went to live with the defendant upon a farm in the town of Ripley, Chautauqua county, N. Y. No claim is made in this case that, during her stay with the defendant, proper food, lodging, and clothing were not furnished by the defendant. It is claimed, however, that the relations created were not pleasant, and that proper consideration was not shown the plaintiff by the defendant and her family. The environment not being satisfactory, the plaintiff left the house of the defendant and, after visiting relatives, returned to the vicinity of her former home and made arrangements for her board and care at the rate of $5 per week. After making this arrangement, she made a demand upon the defendant for money to defray this amount, together with certain sums for doctor's bills, clothing, and nursing during the time that she was ill. The amounts demanded were reasonable. The defendant declined to pay these amounts, insisting that the lodging, clothing, food, and care of the plaintiff were to be supplied in her own home, and offering to meet these amounts if the plaintiff would return to the home of the defendant. The plaintiff commenced this action, claiming that, by reason of the default of the defendant in not acceding to the demand of the plaintiff, the whole sum of $2,000 had become due and payable, and asked that the property conveyed might be sold and out of the proceeds of sale the sum of $2,000 and interest be paid.

Prior to the enactment of the Code of Civil Procedure, it was held that, upon bonds conditioned for the payment of money, the plaintiff could not recover anything under the penalty beyond the conditions. Treadwell v. McKeel, 2 Johns. Cas. 340. Section 1915 of the Code of Civil Procedure provides:

"A bond in a penal sum, executed within or without the state, and containing a condition to the effect, that it is to be void, upon performance of any act, has the same effect, for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum, or to perform the act, specified in the condition thereof."

Under the bond executed by the defendant, the plaintiff could recover damages, and only such damages, as the proof disclosed the plaintiff had suffered by reason of the violation of the conditions mentioned in the bond. The courts, in cases of this character, have uniformly held that the grantor, where no place is specified where he is to be maintained and supported, may, as a general rule, live where he pleases, provided his choice does not involve needless expense. Empie v. Empie, 35 App. Div. 51, 54 N. Y. Supp. 402; McArthur v. Gordon, 126 N. Y. 610, 27 N. E. 1033, 12 L. R. A. 667; Wilder v. Whitemore, 15 Mass. 262; Proctor v. Proctor, 141 Mass. 165, 6 N. E. 849; Thayer v. Richards, 19 Pick. (Mass.) 398. This is