ute

...

the event has happened which entitles the owner to an appraisement of his damages." He is not obliged to wait until the completion of the work. People ex rel. Utley v. Hayden (1844) 6 Hill, 359.

When lands are to be taken for canal purposes "the appropriation is complete when the officers of the state have entered upon and taken possession of the land and constructed the canal upon it," and if compensation is made or provided for, the title of the state becomes complete, and the property does not revert on the abandonment of the land for canal purposes. Rexford v. Knight (1854) IF N. Y. 308.

Cause of action.-The right to sue a specific individual is not a constitutional right which cannot be taken away, provided adequate and complete protection to the right of property is left. Hein v. Davidson (1884) 96 N. Y. 175, 180, 48 Am. Rep. 612.

Cemeteries.-Under the act of 1813 (2 R. L. 445, § 267), which, among other things, authorized the city of New York to make bylaws for regulating or preventing interments of the dead, a by-law prohibiting interments in a certain part of the city was sustained, and it was held to prohibit interments even in private property within the prescribed district. No property was taken by operation of the by-law; it was a police regulation, and no compensation was required. Coates v. New York (1827) 7 Cow. 585.

Compensation.-"Just compensation requires a full indemnity, and nothing more. Where the value of the benefit is certain, there can be no doubt as to the propriety of including it as a part of the compensation." The owner obtains a just compensation if he has a full equivalent for what he surrenders to the public. Betts v. Williamsburgh (1853) 15 Barb. 255, citing Livingston v. New York (1831) 8 Wend. 85, 22 Am. Dec. 622, where it is said that "the benefit accruing to a person whose land is taken for a street by the increased value of adjacent property belonging to him may be set off against the loss or damage sustained by him by the taking of his property for a street, and, if equal to the loss or damage, is a just compensation for the property so taken."

It is no objection to a statute providing for taking private property for a public use that payment of compensation is deferred until the amount needed can be raised by taxation, although meanwhile no interest is allowed, and the public assumes possession. Hamersley v. New York (1874) 56 N. Y. 533. This principle was applied in New York v. Wright (1890) 34 N. Y. S. R. 904, 12 N. Y. Supp. 20.

"A provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. ... A law authorizing the taking of a man's land, and remitting him for his sole remedy for compensation to a fund to be obtained by taxation of certain specified lands in a limited district, according to benefits, is not a sure and adequate provision depending upon no 'hazard, casualty, or contingency whatever,' such as law and justice require to meet the constitutional requirement." There should at least be a “pledge of the faith and credit of the state, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment." Sage v. Brooklyn (1882) 89 N. Y. 189.

Benefit may be set off in ascertaining compensation. Long Island R. Co. v. Bennett (1877) 10 Hun, 91; Genet v. Brooklyn (1885) 99 N. Y. 296, I N. E. 777.

A provision is not unconstitutional which postpones payment of damages for a street improvement one year after the award. Allen v. Northville (1886) 23 N. Y. Week. Dig. 317.

The act of 1868, chap. 552, providing for laying out, making, grading, and regulating a highway in Westchester county, which required the expense to be assessed upon property lying within five hundred yards of either side of the highway, did not provide an adequate method for compensation. Mitchell v. White Plains (1891) 62 Hun, 231, 16 N. Y. Supp. 828, affirmed in (1893) 138 N. Y. 627, 33 N. E. 1083.

A statute authorizing property to be taken must provide for compensation, but it need not require such compensation to be prior to or coincident with the taking; it is enough if the provision for compensation is certain, definite, and adequate. Re Gilroy (1898) 32 App. Div. 216, 52 N. Y. Supp. 990, following Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Connolly v. Van Wyck (1901) 35 Misc. 746, 72 N. Y. Supp. 382.

"Unless the statute imposes a duty to pay, it cannot be implied from the mere fact of the taking of land for a city street. The authority to take will be ineffectual unless accompanied with proper provision for payment. . . . A remedy for compensation contingent upon the realization of a fund from taxation for benefits within a limited assessment district does not meet the constitutional requirements," nor does "a local special assessment imposed on

lands adjoining those taken for raising the money required to make payment therefor. . . . It is not certain, definite, or adequate, and does not provide payment without any unreasonable delay." Re South Market Street (1893) 67 Hun, 594, 22 N. Y. Supp. 432. Consequential damages.-Consequential damages caused by the construction, in a proper manner, of public works by a municipal corporation, are not the subject of an action, and although the owner of land may be temporarily deprived of its use while such works are being constructed, it is not a taking of his property within the meaning of the Constitution, and he is not entitled to compensation. Atwater v. Canandaigua (1891) 124 N. Y. 602, 27 N. E. 385. Dower.-An inchoate right of dower is not property the value of which can be estimated, and such a right is destroyed where the husband's land is taken by eminent domain under a statute which vests the absolute title in the municipal corporation. "Dower is not the result of contract, but a positive institution of the state, founded on reasons of public policy." Moore v. New York (1853) 8 N. Y. 110, 59 Am. Dec. 473.

Drainage.-While the occupancy and use of the lands for the purpose of constructing and maintaining a ditch for the draining of the low lands upon its borders, under the Royalton drainage act of 1867, chap. 774, did not deprive the owner of the fee, and gave the public but an easement, it was such an interference with the proprietary interests of the owner as entitled him to the just compensation made necessary by the Constitution as a condition precedent to the taking of private property for public use. People ex rel. Williams v. Haines (1872) 49 N. Y. 587; followed in Re Cheesbrough (1879) 17 Hun, 561, construing the act of 1871, chap. 566, relating to the drainage of certain lands in the city of New York. Foreign insurance companies.-Statutes requiring outside insurance companies to pay to the fire department of New York a percentage of all premiums of insurance effected by such agent in that city as a condition of being permitted to do business in the state do not take property without compensation. "It is competent for the legislature to regulate the business of insurance within this state, to designate who may effect insurances, to prohibit agencies therefor, and to impose the payment of a tax as a condition to the establishment of such agencies. A tax upon a particular business may be levied for the benefit of a public charity, and may be made payable directly to the persons having the direction thereof. The fire department of the city of New York is the representative of a

public charity." Fire Department v. Noble (1854) 3 E. D. Smith, 440; Fire Department v. Wright (1854) 3 E. D. Smith, 453

Franchise.-A franchise is private property under this provision. It is taken when the party to whom it has belonged is deprived of the power or means of exercising it; but it is not taken when its emoluments are diminished by an improvement which does not destroy or impair such power or means; such a diminution is not within the constitutional prohibition. “An indirect reduction of the profits of a thing does not constitute a seizure of it, so long as its substance, whether physical or moral, remains intact." Re Hamilton Avenue (1852) 14 Barb. 405.

A corporate franchise includes the right to use the railroad for all purposes authorized by law, and also "the right or privilege to contract for its use with other railroads, and thereby derive a profit." These rights cannot be taken away except by eminent domain, or under the police power. Roddy v. Brooklyn City & N. R. Co. (1898) 32 App. Div. 311, 52 N. Y. Supp. 1025.

Highways. An abutting owner, by which is meant "a person having land bounded on the side of a public street and having no title or estate in its bed or soil, and no interests or private rights in the street, except such as are incident to lots so situated," has “incorporeal private rights therein which are incident to his property, which may be so impaired as to entitle him to damages." Abendroth v. Manhattan R. Co. (1890) 122 N. Y. 1, 11 L. R. A. 634, 19 Am. St. Rep. 461, 25 N. E. 496; Egerer v. New York C. & H. R. R. Co. (1902) 70 App. Div. 421, 75 N. Y. Supp. 476.

"Abutters upon a public street claiming title to their premises by grant from the municipal authorities, which contains a covenant that a street to be laid out in front of such property shall forever thereafter continue for the free and common passage of, and as public streets and ways for, the inhabitants of said city, and all others passing and returning through or by the same, in like manner as the other streets of the same city now are or lawfully ought to be, acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of property situated thereon. The ownership of such easement is an interest in real estate, constituting property within the meaning of that term as used in the Constitution of the state, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use." Lahr v. Metropolitan Elev. R. Co. (1887) 104 N. Y. 268, 10 N. E

528. Kane v. New York Elev. R. Co. (1891) 125 N. Y. 164, 11 L. R. A. 640, 26 N. E. 278; Pond v. Metropolitan Elev. R. Co. (1889) 112 N. Y. 186, 8 Am. St. Rep. 734, 19 N. E. 487 (in which it was held that the abutting owner could recover only the temporary damages that had been sustained up to the time of the commencement of the action); Reining v. New York, L. & W. R. Co. (1891) 128 N. Y. 157, 14 L. R. A. 133, 28 N. E. 640. See also People ex rel. Dilzer v. Calder (1903) 89 App. Div. 503, 85 N. Y. Supp. 1015, where it is said that “an easement is a constitutional right of property which cannot be taken from its owner without just compensation."

The public acquires only a right of way over land taken for a highway, and the fee continues in the owner. A corporation cannot take such land without making compensation to the owner. Presbyterian Society v. Auburn & R. R. Co. (1842) 3 Hill, 567; Williams v. New York C. R. Co. (1857) 16 N. Y. 97, 69 Am. Dec. 651; Carpenter v. Oswego & S. R. Co. (1861) 24 N. Y. 655; Mahon v. New York C. R. Co. (1860) 24 N. Y. 658; Wager v. Troy Union R. Co. (1862) 25 N. Y. 526; Bloomfield & R. Natural Gaslight Co. v. Calkins (1875) 62 N. Y. 386; Craig v. Rochester City & B. R. Co. (1868) 39 N. Y. 404; Buffalo v. Pratt (1892) 131 N. Y. 293, 15 L. R. A. 413, 30 N. E. 233; Dusenbury v. Mutual U. Teleg. Co. (1882) 11 Abb. N. C. 440.

As a general rule "where lands are bounded by a public street, the legal presumption is that the grantor intended to convey the soil" to the center of the street; but the presumption does not apply where land is described as bounded by the line of the street unless a contrary intention clearly appears. An abutting owner, even if he does not own the fee of the street, has an easement in the street in common with the whole public to pass and repass, and also to have free access to and from his premises. The construction of a street surface railroad with the consent of the legislature is not an infringement of such an abutting owner's rights which will entitle him to compensation. Clark v. Rochester City & B. R. Co. (1888) 18 N. Y. S. R. 903, 2 N. Y. Supp. 563; Kellinger v. Forty-Second Street & G. Street R. Co. (1872) 50 N. Y. 206.

In Stroub v. Manhattan R. Co. (1891) 14 N. Y. Supp. 773, an injunction was granted restraining the defendant from constructing an additional track in front of the plaintiff's premises until it had acquired plaintiff's easement by purchase or otherwise.

An abutting owner is not entitled to consequential damages caused by the change of grade of a railroad company's tracks by a direct mandate of the legislature. Fries v. New York & H. R. Co. (1901)