The People v. White.

state a fee simple absolute in the lands taken for the bed of the canal, is also inferrible from other provisions of the same section of the statute. The appraisers are directed to make a just and equitable estimate of the loss and damage, if any, over and above the benefit and advantage to the respective owners by and in consequence of making and constructing the works aforesaid. It is not the value of the land that is to be ascertained, but the loss and damage: and from this the deduction for benefit to the owner is to be made. This deduction also forms a part of the consideration for the transaction, and implies that the benefit is to be continued to the owner of the land as long as it is held for public use. It is upon this principle that the damages are appraised.

In all cases, then, this deduction for benefit to the owner is to be made; and if, after the canal is abandoned and the owner ceases to derive any benefit from its proximity, the state can still retain the land, it is taking private property for public use without making just compensation. Independent of the question of constitutional prohibition, which I shall hereafter consider, the statute should not unnecessarily receive a construction productive of so great injustice.

The general turnpike act, passed March 13, 1807, (1 R. L. 231,) provided for taking necessary land, and appraising the damages, and contained the following clause: "And the said president and directors aforesaid, upon paying the said several owners of the said lands the several sums so assessed and awarded by the said appraisers in their said inquisition, shall and may have and hold to them and their successors and assigns forever, the lands and tenements in the said inquisition described." It was the legal effect of this language to convey a fee, as plainly as if the words "fee simple" had been employed, as was done in the act of 1817, above cited. But it has been adjudged that where land taken for a turnpike had been abandoned, it reverted to the original owner. In Hooker v. Utica and Minden Turnpike Co. (12 Wend 71,) the court said, "although the act of incorporation vests in the company the title to the lands over which the road passes, on compliance by them with the provis

The People v. White.

ions of the act, such title must nevertheless be considered as vested only for the purpose of a road, and when the road is abandoned the land reverts to the original owner."

But whatever may be the construction given to the statute, it may be well in this case to look beyond it and see how far the legislature has power to go, in taking the property of the citizen. The taking of property for public use can only be sanctioned by virtue of the sovereign right of eminent domain. Long before the organization of our government this right was recognized, throughout the civilized world, and its exercise restricted to cases of public necessity and just compensation. (Grotius De Jur. B. and P. b. 8, ch. 14, s. 7. Puf. De Jur. Nat. et Gent. b. 8, ch. 5, s.7. Bynckershoek Quæst. Jur. Pub. b. 2, ch. 15. 1 Bl. Com. 139. 2 Kent's Com. 339.) At the time the land in suit was taken, in 1819, this principle had been made a part of the constitution of the United States, which provided (Art. 5 of Amendments) "Nor shall private property be taken for public use without just compensation." Subsequently this same language was made part of our state constitution adopted in 1822. (Const. of 1822, art. 7, sec. 7.) It is true the provision in the constitution of the United States has been decided to be only restrictive upon the general government and its officers. (2 Cowen, 818. 8 Wend. 100. 7 Peters, 243.) But the clause thus inserted in the constitution was only declaratory of a previously existing and universal principle of law; (2 Kent, 339;) and it was recognized by the courts of this country long before it was incorporated into our state constitution. (Gardner v. Village of Newburgh, 2 John. Ch. Rep. 166. 20 John. 105, 735. 17 Id. 215. Baldwin's C. C. Rep. 219. 3 Story's Com. 661. 3 Kelly, 43.) The unwritten constitutional law governs this case. This question is therefore to be tested by the same rules as if the land had been taken since the adoption of the constitution of 1822.

The taking of private property, then, can only be justified when it is taken for public use, and on panent of just compensation. It is only by virtue of this principle, and under this restriction, that land is taken for public roads, turnpikes, rail

The People v. White.

ways, &c. All are placed upon the same footing, and are subject to the same limitations. The right acquired is a mere easement, or servitude as it is called in the civil law-a right to use -and when the use is abandoned the title reverts to the former owner. This principle has been repeatedly adjudged with regard to public roads, and streets in cities. (15 John. 447. 1 Wend. 262. 2 Id. 472. 6 Id. 461. 8 Wend. 85. 11 Id. 150. 12 Id. 98. 4 Hill, 140. 5 Paige, 159.) And I think it equally applicable to canals.

If the state may retain this land, thus compulsorily taken, after it has been abandoned for the purpose of a canal, it may sell it to some other citizen. This could not be justified under a permission to take private property for public use. It would be taking the property of one citizen and transferring it to another. In other words, it would be taking private property for private or individual use; and it would be a plain violation of the constitutional provision in question, and a gross outrage upon the rights of the citizen. Upon this subject we are not without ample authority. In the Matter of Albany-street, (11 Wend. 150,) the court had under consideration section 179, 2 Rev. Laws, 416, which authorized the commissioners, if they should deem it expedient, where part of a lot only was necessary, to take the whole lot and sell such part as was not required for public use; and it was held to be unconstitutional and void. The court said, "if it is to be taken literally that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power which, with all respect, the legislature did not possess. 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 a violation of natural right, and if it is not in violation of the letter of the constitution it is of its spirit, and can not be supported." (See also Bloodgood v. Mohawk and Hud. Railroad Co. 18 Wend. 9, 59; Matter of John and Cherry streets, 19 Id. 659; Varick v. Smith, 5 Paige, 137; Taylor v. Por

The People v. White.

ter, 4 Hill, 143.) These cases all agree that the legislature has no power to permit private property to be taken for any other except public use, and that any enactment interfering, beyond this limit, with the right of the citizen is void. I am satisfied there is no power to retain land compulsorily taken for the purpose of constructing the canal, after the canal has been abandoned, and the land has ceased to be necessary for the public use. If therefore the broadest construction of the statute of 1817 be adopted, as claimed by the plaintiffs, it would afford no constitutional protection.

There is another ground upon which I think the plaintiffs' title can not be sustained. The defendant has had no just compensation for his land. Compensation was made to him on the supposition that he was to be benefited by the location of the canal on his premises, and it was only the damages, over and above such benefit, that were awarded to him. That benefit has now ceased, by the abandonment of the canal, and the compen sation can no longer be regarded as justly made. I think this view is fully sustained by the ruling of the court in Gardner v. The Trustees of the Village of Newburgh, (2 John. Ch. 162.) That case was decided in 1816, before the clause which authorizes private property to be taken for public use was made a part of the state constitution. In that case the legislature had failed to provide a just compensation; and they have certainly failed to require a just compensation in this case, if the title they have vested in the state can endure any longer than the defendant is to enjoy the benefit of the canal. The great injustice of a different conclusion is apparent. Suppose the benefit to the owner is deemed equal to the damages for the taking of the land. The owner gets nothing for his land. Then the canal is abandoned. If the state can retain the land, the owner loses its whole value.

For the reasons above stated I think the plaintiffs have no title to the land, and that the defendant should have judgment. [ALBANY GENERAL TERM, May 5, 1851. Harris, Watson and Parker, Justices.]

HUNTER VS. OSTERHOUDT.

Payments made by a tenant to his landlord on account of rent, generally, will, in the absence of any direction by the tenant and any agreement of the parties, be applied by the law on the rent due at the time, and not on the rent then accruing.

It is only where rent is paid which accrued after a forfeiture, that the acceptance of such payment is considered an affirmance of the lease, and a waiver of the forfeiture. The acceptance of rent which accrued prior to the right of entry is not a waiver of the forfeiture.

Where, upon the trial of a cause the only objections made by the defendant rest entirely on legal grounds, which are overruled by the judge, and the judge charges that the plaintiff has a right to recover, without any exception being taken to the charge, the defendant can not afterwards object that a question of fact should have been submitted to the jury.

THIS was an action of ejectment, tried before Hon. S. Barculo, late circuit judge, at the Sullivan circuit, in May, 1847. The farm in question was occupied by the defendant, and contained 100 acres of land. It had been leased by the plaintiff to the defendant in 1828, by a perpetual lease; the rent reserved being eighteen pence an acre, payable the 1st of June of every year, with a clause of re-entry if the rent should remain unpaid for four months. It was proved that the amount of rent due and unpaid, without interest, on the 1st of June, 1845, was $200,75. The time laid in the declaration was the tenth of June, 1846, and the declaration was served on the 14th of August, 1846. The plaintiff also proved personal service on the defendant of a notice requiring payment of the rent in fifteen days. The defendant proved two receipts, signed by the plaintiff's agent, one dated October 17, 1845, acknowledging the receipt from the defendant of $5,46 in road work" on account of rent for farm No. 231," the farm in question. The other receipt was dated 17th November, 1845, and was for $5,50, and also expressed to be "on account of rent for farm No. 231."

The defendant moved for a nonsuit which was refused, and the judge directed a verdict for the plaintiff. The defendant applied for a new trial, on a case agreed upon by the parties. VOL. XI.

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