"The legislature may interfere with property held by a corporation for one public use, and apply it to another, and without compensation, where no private interests are involved or invaded. The legislature may delegate this power to public officers or to corporate bodies, municipal or other. It is a rule, however, that such delegation of power must be in express terms, or must arise from a necessary implication." The provision in the Buffalo charter, authorizing the city to take property for various public purposes, was held not to authorize the taking of property owned by railroad corporations, and which had been devoted to a public use. Re Buffalo (1885) 68 N. Y. 167.

"Lands held by a corporation, but not used for or necessary to a public purpose, but simply as a proprietor and for any private purpose to which they may be lawfully applied, may be taken as if held by an individual owner. . . . The need of the land sought in aid of collateral enterprises, remotely connected with the running or operating of the road, will not justify the assertion of the right of eminent domain." Re Rochester, H. & L. R. Co. (1888) 110 N. Y. 119, 17 N. E. 678.

General statutes which authorize railroads to cross or intersect one another are not within the rule prohibiting the taking of property already devoted to a public use. "One railroad has the right to cross another railroad, and such right is given by the statutes;" land acquired for railroad purposes is subject to this right, and this rule applies generally to all highways. Buffalo, B. & L. R. Co. v. New York, L. E. & W. R. Co. (1893) 72 Hun, 587, 25 N. Y. Supp. 155; Geneva & W. R. Co. v. New York C. & H. R. R. Co. (1895) 90 Hun, 9, 35 N. Y. Supp. 339, (1897) 152 N. Y. 632, 46 N. E. 1147.

In Re Brooklyn (1894) 143 N. Y. 596, 26 L. R. A. 270, 38 N. E. 983, the court sustained the provision in the act of 1886, chap. 335, relating to the annexation of New Lots to the city of Brooklyn, which authorized the city to acquire by condemnation the property of the Long Island Water Supply Company. It will be observed that this case is within the rule that authority to take property already devoted to public use should be conferred by special statute. The rule that, where property has been appropriated for one public use it cannot be taken for another without express authority of the legislature, does not apply where the second taking is by the state. "The right or power of eminent domain is one inherent in and incident to sovereignty," and cannot be parted with. The legislature cannot delegate the power to a corporation to such an extent

as to prevent the state itself from exercising it at any time, nor can it place such a corporation upon an equality with the state in the exercise of such power; and when the state chooses to exercise the power, it is exclusive. Adirondack R. Co. v. Indian River Co. (1898) 27 App. Div. 326, 50 N. Y. Supp. 245, involving the right of the state to take land for the forest preserve, notwithstanding its previous preliminary appropriation by a railroad corporation. People v. Adirondack R. Co. (1899) 160 N. Y. 225, 54 N. E. 689, affirmed in (1899) 176 U. S. 335, 44 L. ed. 492, 20 Sup. Ct. Rep. 460, where the court considered the rights of the same railroad company under a map filed by it in accordance with the railroad law, and held that this could not prevent the state from taking the land under the forest preserve law, observing that "a delegated power of eminent domain cannot be turned against the sovereign which conferred it and which is the source of all power." See also Re Prospect Park & C. I. R. Co. (1876) 67 N. Y. 372, as to highways.

The legislature cannot, by an attempted exercise of the power of eminent domain, take land which had been acquired for a public highway and donate it to an individual. The rule that the property of one person cannot be taken away from him and transferred to another was applied to a statute (1868, chap. 687) which directed the reduction of the width of a highway to three rods, and which provided for a reversion of the land excluded, without compensation, to the public, and without expense to the adjoining owners, except the expense of the proceeding to change the width of the highway. "To take the property of one, though it be the public, and donate it to an individual, is not only a violation of natural right, but of the spirit of the Constitution." People ex rel. Failing v. Palatine (1869) 53 Barb. 70.

PUBLIC USE.

An owner of property is not entitled to be heard as to the propriety of taking it for a public purpose. "The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or

to private corporations established to carry on enterprises in which the public are interested." People ex rel. Herrick v. Smith (1860) 21 N. Y. 595.

"The general improvement of the public highways of the state, whether canals or rivers that are navigable, is for the benefit of the state at large, though some locality or some individuals may be benefited more than others. The expenditure may, in fact, be improvident, and the work may prove to be useless to the public; but the legislature, as the depository of the sovereign powers of the people, must necessarily be the judge of the propriety and utility of making it. . . . Reason and authority, as well as the fitness of things, demand that when an act of the legislature appropriating money is assailed upon the ground that the purpose of such appropriation is local or private, and not public, the question shall be determined by the language and general scope of the act." Waterloo Woolen Mfg. Co. v. Shanahan (1891) 128 N. Y. 345, 14 L. R. A. 481, 28 N. E. 358.

"Where the taking of private property, for a use claimed to be public, is authorized by the legislature, its determination of the public character of the use is not conclusive. The existence of the public use in any class of cases is a question reviewable by the courts. If, however, the use is certainly a public one, the legislature is the proper body to determine the necessity of the exercise of the right of eminent domain, and the extent to which it shall be carried, and there is no restraint on the power save that of requiring that compensation be made." Re Union Ferry Co. (1885) 98 N. Y. 139.

An improvement may be a public use although it does not benefit the people of the whole state, but the direct public benefit may be confined to a particular community. The lighting of public streets and public places is a public benefit, and the legislature has power to confer on a gaslight company the right to take property for specified public uses by eminent domain. Bloomfield & R. Natural Gaslight Co. v. Richardson (1872) 63 Barb. 437.

Under the canal acts of 1817, chap. 262, and of 1870, chap. 202, the canal commissioners had the right to enter on private property and appropriate it to public. use, and did not thereby become trespassers, even if the property used, as stones for walls or for filling, was taken from private land, without any other appropriation of the land for canal purposes. Compensation need not precede the appropriation of private property; it is only necessary that provision be made for compensation. Rogers v. Bradshaw (1823) 20 Johns. 744; Jerome v. Ross (1823) 7 Johns. Ch. 343, 11 Am. Dec. 484; Wheelock v. Young (1830) 4 Wend. 550. The same subject is

considered with the same result in Baker v. Johnson (1842) 2 Hill, 342; Smith v. Helmer (1849) 7 Barb. 416.

Private property may be taken for the purpose of making a railroad, or any other public improvement of the like nature, upon paying a just compensation, whether such public improvement is made by the agents of the state, or by the agents of a private corporation; but the benefit to result to the public must be of “paramount importance in comparison with the individual loss or inconvenience, and an ample and certain provision should always be made for a full and adequate compensation to the individual whose property is thus taken.” If private property is to be taken for a public use, the act authorizing it must provide in advance an adequate and certain remedy whereby the compensation is assured. "The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided and upon an adequate fund, whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so." Bloodgood v. Mohawk & H. R. R. Co. (1837) 18 Wend. 9, 31 Am. Dec. 313.

The legislature has power to authorize a municipal corporation to acquire, by eminent domain, the absolute title to land taken for a public use, and when so taken no reversionary interest remains, and the property may afterwards be used for a purpose other than that for which it was originally taken. Heyward v. New York (1852) 7 N. Y. 314.

"The use and benefit is not required to be universal, nor, in the largest sense, even general. If it is confined to a specific district it may still be public. If some parties are more benefited than others, this forms no objection to the use, if the public interest and convenience are thereby subserved." Hartwell v. Armstrong (1854) 19 Barb. 166.

A private water company chartered to supply the people of a municipality with pure and wholesome water may take property, including springs and streams of water, and the use to which the same is to be devoted is public. Re Malone Waterworks Co. (1891) 38 N. Y. S. R. 95, 15 N. Y. Supp. 649.

Corporations organized under the water companies act of 1873, chap. 737, may acquire property by purchase or condemnation, and such property is held for a public use, although water is supplied to individuals as well as to municipal corporations. Stamford Water Co. v. Stanley (1886) 39 Hun, 424; Re New Rochelle Water Co.

(1887) 46 Hun, 525; Pocantico Waterworks Co. v. Bird (1891) 130 N. Y. 249, 26 N. E. 246.

Water to be taken under the Middletown act of 1866, chap. 347, as amended by chap. 85, Laws 1879, is for a public use. Re Middletown (1880) 82 N. Y. 196.

A public market is a public use, and land may be taken for it by eminent domain. Re Cooper (1883) 28 Hun, 515.

The courts of this state have repeatedly held that land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health, or business, is taken for a public use. Re Central Park (1872) 63 Barb. 282; Brooklyn Park v. Armstrong (1871) 45 N. Y. 234, 6 Am. Rep. 70; Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Re Rochester (1893) 137 N. Y. 243, 33 N. E. 320.

The purpose for which land is to be taken or appropriated under the act of 1867, chap. 372, relating to the drainage of lands in certain towns, was held not to be a public use; the drainage was for the benefit of private owners of land. People ex rel. Pulman v. Henion (1892) 64 Hun, 471, 19 N. Y. Supp. 488.

A tramway about four miles in length, proposed to be constructed for the use of a private corporation, was held not to be a public purpose. "A possible limited use by a few, and not then as a right, but by way of permission or favor, is not sufficient to authorize the taking of private property against the will of the owner." Re Split Rock Cable Road Co. (1898) 128 N. Y. 408, 28 N. E. 506.

In Re Niagara Falls & W. R. Co. (1888) 108 N. Y. 375, 15 N. E. 429, a proceeding in which the company sought to take land by eminent domain, the court say: "The general principle is now well settled that when the uses are in fact public, the necessity or expediency of taking private property for such uses by the exercise of the power of eminent domain, the instrumentalities to be used, and the extent to which such right shall be delegated, are questions appertaining to the political and legislative branches of the government; while, on the other hand, the question whether the uses are in fact public, so as to justify the taking in invitum of private property therefor, is a judicial question, to be determined by the courts. What is a public use is incapable of exact definition." The expressions "public interest" and "public use" are not synonymous. "The establishment of furnaces, mills, and manufactures, the building of churches and hotels and other similar enterprises, are more or less matters of public concern, and promote, in a general sense, the public welfare. But they lie without the