Spring, J.:
The act delegating the authority referred to endows the Commission with plenary power to acquire property by condemnation to enable it to carry out the provisions of the act, and the contention of the defendant is that it is in derogation of the Constitution in [118]*118that there is no certain provision for the payment of adequate compensation for the land which may be taken.
The act provides for the commencement of the proceeding by petition to the Commission which must first determine whether the regulation of the watercourse is of sufficient importance to call for the intervention of the State. If it determines that question in favor of thd petitioner, the act provides for preliminary plans and surveys and the filing of a map designating the names of the owners whose lands will be affected; also a statement is to be made showing the cost of the proposed improvement, the amounts to be chargeable to the various political divisions affected and the individual properties collectively to be benefited thereby “ expressed in decimals.” Hearings are then required upon notice to the parties interested with these tentative plans and statements as the basis, and ultimately the Commission must determine the precise district to be benefited by these improvements with the cost thereof and the same are to be apportioned by the Commission. A final order is to be made by the Commission which must be filed as provided in the act, and no improvement can. be undertaken until the same has been approved by the Legislature and the plan outlined authorized by that body. The Commission must then advertise for bids and enter into a contract or contracts for the performance of the improvements.
The Commission is authorized to enter upon any land deemed necessary for the purposes of the act. If it cannot agree with any owners upon compensation, title shall be acquired in' accordance with the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) and certified copies of the final order provided for in section 3371 and of the judgment authorized by section 3373 of the Code of Civil Procedure are expressly directed to be filed in the State Comptroller’s office, who issues his warrant for the payment of the sum awarded.
As already indicated, the cost of the improvement is directed to be apportioned by the Commission “ between the respective counties, towns, cities, villages and individual properties which according to their determination made as hereinbefore provided, are benefited by said improvements.” If any part of the cost of the improvement is not properly assessable upon the localities or upon the indi[119]*119vidual properties “ as not in the nature of a local improvement ” such part “ shall be certified by the said Commission to the Legislature as a State charge.” The Commission may determine whether the assessments imposed are to be in one assessment, “ or in annual assessments, not exceeding twenty in all.” In the proceeding for the ascertainment of the apportionment hearings must be had upon notice to all political divisions and persons interested and the mode of procedure is contained in section 9 of the act. Thereafter a final detailed statement must be made of the cost and expense of the improvement and of its apportionment (§ 10), and the manner of raising the amounts in accordance therewith by assessment and tax from the localities and the properties benefited are set out in that section; and “ the amounts apportioned shall be and remain charges against the several municipalities and liens upon the several parcels of property charged therewith, until paid or otherwise removed, superior in force and effect to all other liens except unpaid general taxes.” The moneys are to be paid to the county treasurer and by that official to the Comptroller of the State, to be deposited to the credit of the river improvement fund.
The Commission is authorized to issue bonds to meet the cost of the improvement, and also certificates of indebtedness to provide for expenditures incurred before the proceeds arising from the sale of bonds are obtainable.
There is no authority in the act for possession or the transfer of title preceding payment to the landowner who is deprived of his land. In fact, the proceeding to acquire title against an unwilling owner is in pursuance of the Condemnation Law. The final order in those proceedings, in accordance with section 3371 of the act, directs the compensation to be paid and “ upon payment of such compensation ” the plaintiff is entitled to the possession of the land condemned and the State is vested with the title. The judgment is that prescribed by section 3373 which also requires payment to precede delivery of possession.
The statement of facts shows that a petition was presented to the plaintiff alleging that Canaseraga creek runs through the county of Livingston, and by reason of its tortuous course is “ a menace to the public health and safety,” and asked that the flow of the water in such creek be regulated. In compliance with such petition the [120]*120said plaintiff determined that the improvement asked for was necessary, and all the proceedings required by chapter 734 of the Laws of 1904 have been had, terminating in the final order which was approved by the Legislature (Laws of 1907, chap. 195), and said act authorized and designated the improvement to be made. The lands to be benefited have been ascertained, embracing 190,720 acres, and a contract has been entered into for the performance of the work necessary for the improvement designed.
The defendant owns a farm liable for assessment in the making of such improvement and about four acres of the same are necessary to be taken in the regulation of said watercourse. The statement of facts shows that the Commission was unable to agree with the defendant upon the compensation to be paid for the property to be appropriated, and it commenced proceedings in pursuance of chapter 23, title 1, of the Code of Civil Procedure to acquire title thereto by condemnation. The said proceedings have been discontinued by agreement of the parties '‘for the purpose of presenting this written submission thereof to this court for its determination.”
The plaintiff contends that the public use requires the condemnation of the property of the defendant; while the defendant contends that chapter 734 of the Laws of 1904 is unconstitutional alleging that no adequate provision is made insuring compensation for the land sought to be taken, and that is the sole question submitted to the court for determination.
In proceedings to acquire land by condemnation payment must always be precedent to or concurrent with the delivery of possession, unless the statute authorizing the taking provides otherwise and makes a definite and certain remedy available to the person who has been deprived of his land so that compensation therefor will be unmistakable. One of two things is absolutely indispensable in order to uphold a law which deprives a person of land against his will ■— either that adequate compensation for the land to be appropriated must be made before possession or title is acquired or that payment thereof must be secured beyond a doubt to the owner. In the present case it seems to be clear that the import of the statute is to postpone possession and the acquisition of title until the owner has been paid therefor. That is the essence [121]
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Spring, J.:
The act delegating the authority referred to endows the Commission with plenary power to acquire property by condemnation to enable it to carry out the provisions of the act, and the contention of the defendant is that it is in derogation of the Constitution in [118]*118that there is no certain provision for the payment of adequate compensation for the land which may be taken.
The act provides for the commencement of the proceeding by petition to the Commission which must first determine whether the regulation of the watercourse is of sufficient importance to call for the intervention of the State. If it determines that question in favor of thd petitioner, the act provides for preliminary plans and surveys and the filing of a map designating the names of the owners whose lands will be affected; also a statement is to be made showing the cost of the proposed improvement, the amounts to be chargeable to the various political divisions affected and the individual properties collectively to be benefited thereby “ expressed in decimals.” Hearings are then required upon notice to the parties interested with these tentative plans and statements as the basis, and ultimately the Commission must determine the precise district to be benefited by these improvements with the cost thereof and the same are to be apportioned by the Commission. A final order is to be made by the Commission which must be filed as provided in the act, and no improvement can. be undertaken until the same has been approved by the Legislature and the plan outlined authorized by that body. The Commission must then advertise for bids and enter into a contract or contracts for the performance of the improvements.
The Commission is authorized to enter upon any land deemed necessary for the purposes of the act. If it cannot agree with any owners upon compensation, title shall be acquired in' accordance with the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) and certified copies of the final order provided for in section 3371 and of the judgment authorized by section 3373 of the Code of Civil Procedure are expressly directed to be filed in the State Comptroller’s office, who issues his warrant for the payment of the sum awarded.
As already indicated, the cost of the improvement is directed to be apportioned by the Commission “ between the respective counties, towns, cities, villages and individual properties which according to their determination made as hereinbefore provided, are benefited by said improvements.” If any part of the cost of the improvement is not properly assessable upon the localities or upon the indi[119]*119vidual properties “ as not in the nature of a local improvement ” such part “ shall be certified by the said Commission to the Legislature as a State charge.” The Commission may determine whether the assessments imposed are to be in one assessment, “ or in annual assessments, not exceeding twenty in all.” In the proceeding for the ascertainment of the apportionment hearings must be had upon notice to all political divisions and persons interested and the mode of procedure is contained in section 9 of the act. Thereafter a final detailed statement must be made of the cost and expense of the improvement and of its apportionment (§ 10), and the manner of raising the amounts in accordance therewith by assessment and tax from the localities and the properties benefited are set out in that section; and “ the amounts apportioned shall be and remain charges against the several municipalities and liens upon the several parcels of property charged therewith, until paid or otherwise removed, superior in force and effect to all other liens except unpaid general taxes.” The moneys are to be paid to the county treasurer and by that official to the Comptroller of the State, to be deposited to the credit of the river improvement fund.
The Commission is authorized to issue bonds to meet the cost of the improvement, and also certificates of indebtedness to provide for expenditures incurred before the proceeds arising from the sale of bonds are obtainable.
There is no authority in the act for possession or the transfer of title preceding payment to the landowner who is deprived of his land. In fact, the proceeding to acquire title against an unwilling owner is in pursuance of the Condemnation Law. The final order in those proceedings, in accordance with section 3371 of the act, directs the compensation to be paid and “ upon payment of such compensation ” the plaintiff is entitled to the possession of the land condemned and the State is vested with the title. The judgment is that prescribed by section 3373 which also requires payment to precede delivery of possession.
The statement of facts shows that a petition was presented to the plaintiff alleging that Canaseraga creek runs through the county of Livingston, and by reason of its tortuous course is “ a menace to the public health and safety,” and asked that the flow of the water in such creek be regulated. In compliance with such petition the [120]*120said plaintiff determined that the improvement asked for was necessary, and all the proceedings required by chapter 734 of the Laws of 1904 have been had, terminating in the final order which was approved by the Legislature (Laws of 1907, chap. 195), and said act authorized and designated the improvement to be made. The lands to be benefited have been ascertained, embracing 190,720 acres, and a contract has been entered into for the performance of the work necessary for the improvement designed.
The defendant owns a farm liable for assessment in the making of such improvement and about four acres of the same are necessary to be taken in the regulation of said watercourse. The statement of facts shows that the Commission was unable to agree with the defendant upon the compensation to be paid for the property to be appropriated, and it commenced proceedings in pursuance of chapter 23, title 1, of the Code of Civil Procedure to acquire title thereto by condemnation. The said proceedings have been discontinued by agreement of the parties '‘for the purpose of presenting this written submission thereof to this court for its determination.”
The plaintiff contends that the public use requires the condemnation of the property of the defendant; while the defendant contends that chapter 734 of the Laws of 1904 is unconstitutional alleging that no adequate provision is made insuring compensation for the land sought to be taken, and that is the sole question submitted to the court for determination.
In proceedings to acquire land by condemnation payment must always be precedent to or concurrent with the delivery of possession, unless the statute authorizing the taking provides otherwise and makes a definite and certain remedy available to the person who has been deprived of his land so that compensation therefor will be unmistakable. One of two things is absolutely indispensable in order to uphold a law which deprives a person of land against his will ■— either that adequate compensation for the land to be appropriated must be made before possession or title is acquired or that payment thereof must be secured beyond a doubt to the owner. In the present case it seems to be clear that the import of the statute is to postpone possession and the acquisition of title until the owner has been paid therefor. That is the essence [121]*121of the proceeding under the Condemnation Law and that is the only remedy available to the plaintiff to obtain title or possession of the property against the protest of the owner whose land is required. The act does not in terms provide that the plaintiff may appropriate or go in possession of the land for the purpose of the improvement before it has compensated the owner for the same. It relegates the plaintiff to the Condemnation Law to acquire the land of an owner unwilling to convey, implying that the divesting of title and the payment for the premises of which the owner is deprived must be concurrent.
There are many cases cited upon the proposition that compensation must be certain. In every one of these cases, so far as I have been able to discover, possession of the land was given before it was paid for and no adequate remedy to secure payment existed.
In Sage v. City of Brooklyn (89 N. Y. 189), a leading case on the subject, the Legislature authorized the widening of a street in the city of Brooklyn, and the cost of the improvement was apportioned upon the property benefited. The plaintiffs’ land was taken and an award made to them therefor. This land was appropriated but they were not paid. The sum raised by assessment upon a restricted district was insufficient for the cost of the improvement and the entire fund was exhausted. The city was sued and the court held that it was liable to the plaintiffs for the awards made to them. The act in that case authorized the commissioners to take possession of the property required and remitted the owners to a remedy which was inadequate and uncertain if limited to the assessment district. The pith of the controversy was whether the city of Brooklyn was liable to compensate the plaintiffs, and the court held that the act authorizing the widening of the street imposed upon the city the duty of recompensing the plaintiffs for the land taken, and for that reason sustained its validity.
In Mitchell v. Village of White Plains (62 Hun, 231) commissioners were given authority to take property by right of eminent domain and to acquire possession of the same, and the owners’ compensation for the land taken was derived from assessment “ upon the strips of land lying within five hundred yards of either side ” of the avenue laid out. Again possession of the land was allowed, and no safe remedy was insured to the owner for the award to him.
[122]*122The distinction is recognized in Brewster v. Rogers Co. (169 N. Y. 73) in the language of Judge Cullen (at p. 80): “ It was settled early in the history of this State that when private property is taken for public use, compensation need not necessarily precede the appropriation ; but it was also settled that where payment does not precede appropriation, it must be secure and certain.”
Where payment is to be made for private property taken for a public use before the appropriation of the same, the question of the efficiency of the remedy is not important. The cases discussing the uncertainty of the fund or the remedy have no relevancy to a case where the owner can retain possession and title undisturbed until the award made to him has been paid. Possibly, if it were clear that the statute had not vested the plaintiff with authority to raise sufficient money to carry on the improvement proposed, the courts might interfere to prevent the consummation of the plan.
The statute under consideration, does make it reasonably certain that adequate funds will be provided to meet the cost. The territory benefited is definite, and the plaintiff, in all probability, will be able to dispose of bonds secured by the assessment upon the lands, and with a designated part of the cost chargeable to the towns through which the watercourse runs. The title to the land is taken in the State. The commission delegated with making the improvement is a State organization, and enters upon the work in pursuance of the specific authority of the State Legislature. The funds are in the custody of the Comptroller of the State, so that the State itself is in effect committed to the performance of the work from its inception.
In any event, if any uncertainty exists as to the ability of the commission to complete fully the improvement, the landowners are not affected because their lands must be taken and paid for before the work commences.
' Apparently, the plaintiff is not endeavoring to acquire title to or go into possession of private property without paying for it anterior to its acquisition. In the petition served upon the defendant to condemn his land, the plaintiff asked to obtain title to his premises “ for the public use so specified upon making compensation therefor” pursuant to the Condemnation Law.' The defendant was tendered and refused the sum of $225, which it is stipulated is the value of the land to be taken.
[123]*123I think that judgment should be rendered in favor of the plaintiff determining that the act in question is constitutional.
All concurred, except McLennan, P. J., who dissented in an opinion.