Kellogg, J.:
“ Private property cannot he taken for public use unless it is necessary for such public use, but all that is required of such officer or board in determining the necessity for taking private property is that they act in good faith and with sound discretion.” (People v. Fisher, 190 N. Y. 468, 477.)
The officer referred' to in that case was the State Engineer who had permanently appropriated certain lands, and the court was . asked to determine that a permanent appropriation was unnecessary as a temporary appropriation was sufficient. The court sustained the appropriation. It was apparent that the officer acted in'good faith and there was at least reasonable ’basis for his action.
In the Appellate. Division (116 App. Div. 677, 686) the same conclusion was reached, the court saying: “We do not decide that where an officer of the State assumes to take private property, ostensibly in the exercise of a discretionary power vested in him by the Legislature which clearly can be seen, under no circumstances and in no event, will be' needed for public purposes, that courts may not intervene and determine contrary to the expressed judgment of such officer the question of the necessity for taking the same, and judicially declare such' an assumption of authority nugatory. ”
In every appropriation of private property for alleged public use the .purpose of the appropriation, that is, whether it in fact involves a public use, is a question open to the courts for consideration, for unless there is- a public use the act of appropriation is unwarranted. In this case the line of the canal was fixed, and the State Engineer- was charged with the duty of examining into the facts and passing his judgment as to what property was necessary for canal purposes. He could not act arbitrarily,, capriciously or without judgment, as rib such power is given to .him. His power to condemn arises only from an exercise of a sane judgment and sound discretion, and it is evi[321]*321dent there must be some basis for his judgment and discretion to rest upon. The property sought to be condemned must in fact be necessary, or at least so situated with reference to the canal work that there may be an honest difference of opinion among reasonable men as to its necessity. If we assume that the State Engineer has filed a certificate appropriating a farm ten miles away from the canal, and which under no circumstances could be available for canal purposes, the invalidity of his action would be apparent. A determination in good faith as to the necessity, and the exercise of a sound discretion with reference to property as to which there is some real basis for such determination, is a condition precedent to his right to condemn. On the other hand, it may be conceded, if the appropriation in question was the result of a determination made in good faith that it was necessary, and there was a reasonable basis upon which such determination can rest, that the courts may not set up their judgment as to its necessity against the judgment of the State Engineer. It is his judgment and not the judgment of the court that is made the condition precedent to the act.
It is clear that the claimant’s property was not required as a spoil bank or for convenience in making the canal, for the reason that it was substantially covered by large stone and brick buildings and was, therefore, impossible for that purpose. The State Engineer did not give to the court the benefit of his evidence as to the good faith of the appropriation, and the special deputy, who was sworn as a witness, falls far short of showing that the appropriation was made in good faith or was even deemed necessary. The appropriation map was served January 8, 1908. April 15, 1908, the Superintendent of Public Works questioned the propriety of the appropriation and asked the State Engineer with reference to it. No answer was ever directly given to the Superintendent but a communication from the special deputy to the State Engineer was furnished to the Attorney-General April 21, 1908, in which he indicates the propriety of the appropriation on the ground that the canal wall was not of sufficient strength to hold the water in the canal without a lateral pressure against the walls of the building and “if at any time there should be any excavation made on the [322]*322property adjacent to this wall it would result in the destruction of the wall.” He also stated that in his judgment it was not feasible to extend the canal wall further west and leave an embankment between the wall of the canal and the wall of the claimant’s property, and that as the canal wall was to be only about four feet at the top, “ the State would have no available room on either side of the canal, and this being a terminal of the canal, it seems that the State. should have sufficient land adjacent to the canal for the purpose of providing facilities for boats tying up while waiting to pass the locks. ” He does not in the communication question the sufficiency of the wall except in the contingency, that the wall of the claimant’s building and the earth easterly of it are removed, leaving the canal wall without support. As a witness he expresses a fear that the claimant’s wall might fall into the canal during the excavation.
The reasons given by him, and they are the only reasons furnished by the State Engineer’s office, seem to be rather excuses than reasons, and do not indicate in the light of all the evidence the good faith of the appropriation. It was not for the State Engineer, after the plans and specifications had been approved and the contract let, to change the plans providing for places for boats to tie up in the use of the canal or to appropriate land .which could not be used for' any purpose contemplated by the plans approved.
No reasonable suggestion is made in the evidence that any particular use was to be made of this mill property or any part of it, and no suggestion why if an underpinning of the mill was desired that right was not obtained or the three feet condemned. It was stated that an underpinning to the mill was desirable, not that any use was contemplated of the entire property. It is evident that the underpinning to the mill was as •desirable to the claimant as to the State, and undoubtedly if the claimant had understood that no favors were to be granted it would gladly have conceded without compensation the right to underpin the mill for its own safety and protection. The act of the special deputy, if valid, would have resulted, if the State had built the underpinning to plaintiffs mill, in making the plaintiff’s foundation secure, at a conceded expense to the State of from $125,000 to $700,000. The fact that the work on [323]*323this section of the canal was being performed at that time under a contract, and that it was, therefore, impracticable to use these lands for canal purposes without the consent of the Canal Board, as indicated below, furnishes the strongest possible reason for the conclusion that an appropriation of them without the consent of the Canal Board was absolutely unnecessary and that the alleged appropriation was without any judgment and arbitrary and capricious. The facts in this case are such that there can be no honest difference of opinion upon the question that the appropriation of this $700,000 mill property was not necessary for canal purposes, and that it was not the judgment of the State Engineer or his deputy that it was necessary. The Court of Claims has mildly characterized it by saying, in substance, that it was arbitrary, capricious and without the exercise of any judgment.
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Kellogg, J.:
“ Private property cannot he taken for public use unless it is necessary for such public use, but all that is required of such officer or board in determining the necessity for taking private property is that they act in good faith and with sound discretion.” (People v. Fisher, 190 N. Y. 468, 477.)
The officer referred' to in that case was the State Engineer who had permanently appropriated certain lands, and the court was . asked to determine that a permanent appropriation was unnecessary as a temporary appropriation was sufficient. The court sustained the appropriation. It was apparent that the officer acted in'good faith and there was at least reasonable ’basis for his action.
In the Appellate. Division (116 App. Div. 677, 686) the same conclusion was reached, the court saying: “We do not decide that where an officer of the State assumes to take private property, ostensibly in the exercise of a discretionary power vested in him by the Legislature which clearly can be seen, under no circumstances and in no event, will be' needed for public purposes, that courts may not intervene and determine contrary to the expressed judgment of such officer the question of the necessity for taking the same, and judicially declare such' an assumption of authority nugatory. ”
In every appropriation of private property for alleged public use the .purpose of the appropriation, that is, whether it in fact involves a public use, is a question open to the courts for consideration, for unless there is- a public use the act of appropriation is unwarranted. In this case the line of the canal was fixed, and the State Engineer- was charged with the duty of examining into the facts and passing his judgment as to what property was necessary for canal purposes. He could not act arbitrarily,, capriciously or without judgment, as rib such power is given to .him. His power to condemn arises only from an exercise of a sane judgment and sound discretion, and it is evi[321]*321dent there must be some basis for his judgment and discretion to rest upon. The property sought to be condemned must in fact be necessary, or at least so situated with reference to the canal work that there may be an honest difference of opinion among reasonable men as to its necessity. If we assume that the State Engineer has filed a certificate appropriating a farm ten miles away from the canal, and which under no circumstances could be available for canal purposes, the invalidity of his action would be apparent. A determination in good faith as to the necessity, and the exercise of a sound discretion with reference to property as to which there is some real basis for such determination, is a condition precedent to his right to condemn. On the other hand, it may be conceded, if the appropriation in question was the result of a determination made in good faith that it was necessary, and there was a reasonable basis upon which such determination can rest, that the courts may not set up their judgment as to its necessity against the judgment of the State Engineer. It is his judgment and not the judgment of the court that is made the condition precedent to the act.
It is clear that the claimant’s property was not required as a spoil bank or for convenience in making the canal, for the reason that it was substantially covered by large stone and brick buildings and was, therefore, impossible for that purpose. The State Engineer did not give to the court the benefit of his evidence as to the good faith of the appropriation, and the special deputy, who was sworn as a witness, falls far short of showing that the appropriation was made in good faith or was even deemed necessary. The appropriation map was served January 8, 1908. April 15, 1908, the Superintendent of Public Works questioned the propriety of the appropriation and asked the State Engineer with reference to it. No answer was ever directly given to the Superintendent but a communication from the special deputy to the State Engineer was furnished to the Attorney-General April 21, 1908, in which he indicates the propriety of the appropriation on the ground that the canal wall was not of sufficient strength to hold the water in the canal without a lateral pressure against the walls of the building and “if at any time there should be any excavation made on the [322]*322property adjacent to this wall it would result in the destruction of the wall.” He also stated that in his judgment it was not feasible to extend the canal wall further west and leave an embankment between the wall of the canal and the wall of the claimant’s property, and that as the canal wall was to be only about four feet at the top, “ the State would have no available room on either side of the canal, and this being a terminal of the canal, it seems that the State. should have sufficient land adjacent to the canal for the purpose of providing facilities for boats tying up while waiting to pass the locks. ” He does not in the communication question the sufficiency of the wall except in the contingency, that the wall of the claimant’s building and the earth easterly of it are removed, leaving the canal wall without support. As a witness he expresses a fear that the claimant’s wall might fall into the canal during the excavation.
The reasons given by him, and they are the only reasons furnished by the State Engineer’s office, seem to be rather excuses than reasons, and do not indicate in the light of all the evidence the good faith of the appropriation. It was not for the State Engineer, after the plans and specifications had been approved and the contract let, to change the plans providing for places for boats to tie up in the use of the canal or to appropriate land .which could not be used for' any purpose contemplated by the plans approved.
No reasonable suggestion is made in the evidence that any particular use was to be made of this mill property or any part of it, and no suggestion why if an underpinning of the mill was desired that right was not obtained or the three feet condemned. It was stated that an underpinning to the mill was desirable, not that any use was contemplated of the entire property. It is evident that the underpinning to the mill was as •desirable to the claimant as to the State, and undoubtedly if the claimant had understood that no favors were to be granted it would gladly have conceded without compensation the right to underpin the mill for its own safety and protection. The act of the special deputy, if valid, would have resulted, if the State had built the underpinning to plaintiffs mill, in making the plaintiff’s foundation secure, at a conceded expense to the State of from $125,000 to $700,000. The fact that the work on [323]*323this section of the canal was being performed at that time under a contract, and that it was, therefore, impracticable to use these lands for canal purposes without the consent of the Canal Board, as indicated below, furnishes the strongest possible reason for the conclusion that an appropriation of them without the consent of the Canal Board was absolutely unnecessary and that the alleged appropriation was without any judgment and arbitrary and capricious. The facts in this case are such that there can be no honest difference of opinion upon the question that the appropriation of this $700,000 mill property was not necessary for canal purposes, and that it was not the judgment of the State Engineer or his deputy that it was necessary. The Court of Claims has mildly characterized it by saying, in substance, that it was arbitrary, capricious and without the exercise of any judgment.
The judgment may also be sustained upon the ground that the State Engineer at the time he acted had no legal authority to make an appropriation. Section 6 of the act was intended as a check upon him so that, after contract let, the maps, plans and specifications may not be altered without the approval of the Superintendent of Public Works, and if a proposed change would enhance the cost to the State or create a claim against it, the assent of the Canal Board must be had. It is apparent that if this appropriation is sustained the cost of this section of the canal must be enhanced from $125,000 to $700,000 for land damages, in addition to whatever it may cost to make any use of the property taken. It was impossible to build the canal in any other place or manner on the contracted section without the consent of the Canal Board. These lands could not be used for canal purposes without a change of plan and contract; the appropriation of additional land there for canal purposes could not be necessary and the State Engineer had no power to make such appropriation. The work could only be done by contract and the contractor was actually engaged upon the work. Plaintiff was chargeable with knowledge of the law that at that time no change in the plans could be made by the State Engineer acting alone Whoever deals with a public officer is charged with knowledge of his powers. If, as alleged, plaintiff stopped taking new orders in the mill upon [324]*324the service of the notice, the loss must fall upon it, as it must be assumed to have such knowledge of the facts as it would have learned on proper inquiry. If the special deputy acted without judgment he was clearly not acting in the interest of the State. He evidently did hot act involuntarily, but for a purpose, and no one could be benefited by that purpose but the plaintiff. If the map was filed as a matter of favor or otherwise to the plaintiff it is not aggrieved. In any event the evidence here . does not put plaintiff in the place of a person who has been injured by the wrongful act of the State Engineer. If it was hot a party to the act it is chargeable with knowledge of the law and the plain facts on which the officer acted. It was its duty before making important commitments to inquire as to the legal power of the officer and to ascertain the facts. At an early day the claimant knew that the State took the position that the alleged appropriation was unnecessary and ineffectual and that the canal was actually being built without interfering with the property. If the claimant has suffered loss the inference is quite strong that it was willing to take the chances of loss in view of the large gain expected if the appropriation could be sustained. A sworn claim filed for $1,000,000 and an attempt to prove but $■100,000 of it suggests that the plaintiff expected large benefits from the appropriation. At the most the loss coming to it, if it innocently sustained a loss, came from omitting to take orders for a very short time. When it surrendered up the property and discontinued its business it clearly knew the facts. From what appears and does not appear in the record the plaintiff apparently knew, or willingly chose not to know, the facts and the law governing the situation. By abandoning its property with notice that the State repudiated the alleged appropriation and would not use the land, it chose to stand upon its legal rights. It stands upon an order made without power or right, and the judgment of the Court of Claims is right upon the law and the facts and should be affirmed, with costs.
Sewell, J., concurred; Houghton, J., concurred on ground last stated; Smith, P. J., dissented in opinion in which Betts, J., concurred.