Kahlen v. State

• Decision Date: 14 May 1918
• Citation: 223 N.Y. 383
• Court: New York Court of Appeals Court of Appeals
• Parties: CORNELIUS KAHLEN et al., Appellants, v. THE STATE OF NEW YORK, Respondent.

223 N.Y. 383

119 N.E. 883

KAHLEN et ux.

v.STATE.

Court of Appeals of New York.

May 14, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings by Cornelius Kahlen and wife against the State of New York, on a claim arising out of the appropriation of land for the construction of a port of call.From a judgment of the Court of Claims, dismissing the claim upon the merits, affirmed by the Appellate Division(168 N. Y. Supp. 1113), claimants appeal by permission.Reversed, and new hearing granted.

Cuddeback, J., dissenting.Joseph A. Kellogg, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (Edmund H. Lewis, of Syracuse, of counsel), for the State.

POUND, J.

This claim arose upon the appropriation by the state of New York for the purpose of acquiring a portion of the site for the construction of a port of call, as directed by the Barge Canal Terminal Act(chapter 746 of the Laws of 1911), of certain lands and the riparian rights appurtenant thereto located in the Twelfth ward in the city of New York, fronting upon and adjacent to the Hudson river at the northerly end of the island of Manhattan.

All the acts required for the appropriation of the lands were completed.The claimants' title is not disputed.After the appropriation the claimants filed their claim for the value of the lands appropriated.The claim was opposed by the state because, over 22 months after the claim was filed, the canal board had passed a resolution rescinding and canceling the appropriation.The Court of Claims held that the title of the property had not vested in the state at the time of its appropriation; that the canal board could rescind, and had rescinded, the prior taking; and that the claim should be dismissed.This determination was unanimously affirmed by the Appellate Division.

The Barge Canal Terminal Act is not mandatory in its direction as to the establishment of a port of call on the property appropriated.Sections 6and9.The location thereof might be changed by the canal board upon the recommendation of the state engineer.But the question is whether the actual appropriation of the claimants' land fixed the obligation of the state to make compensation therefor.The procedure for acquiring lands for barge canal terminals is defined by section 6andsection 8 of the act which read as follows:

‘Sec. 6.* * * Lands and other property of owners other than the city of New York shall be acquired as provided in section eight of this act.’

‘Sec. 8.The state engineer may, with the approval of the canal board and subject to the following conditions and subject to the other provisions of this act, enter upon, take possession of and use lands, structures and waters specifically described in this act, and such others, the appropriation of which for the barge canal terminals or for the utilization and full control by the state or for the purposes authorized by this act shall in his judgment be necessary.Accurate surveys and maps of all such lands, structures and waters shall be made by the state engineer, who shall annex thereto his certificate that the lands, structures and waters therein described are necessary for the barge canal terminals.If the same shall be approved by the canal board such maps, surveys and certificates shall be filed in the office of the state engineer and duplicate copies thereof, duly certified by the state engineer to be such duplicate copies, shall also be filed in the office of the superintendent of public works.The superintendent of public works shall thereupon serve upon the owner of any property so appropriated a notice of the filing and of the date of filing of every such map, survey and certificate in his office, which notice shall also specifically describe the portion of such property belonging to such owner which by the said approval of the canal board has been so appropriated for the use of the canal terminals of the state.If the superintendent of public works shall not be able to serve said notice upon the owner personally within this state after making efforts so to do, which in his judgment are under the circumstances reasonable and proper, he may serve the same by filing it with the clerk of the county wherein the property so appropriated is situated.From the time of the service of such notice the entry upon and the appropriation by the state of the property described for the purposes above described shall be deemed complete, and such notice so served shall be conclusive evidence of such entry and appropriation and of the quantity and boundaries of the property appropriated.The superintendent of public works may cause a duplicate copy of such notice, with an affidavit of due service thereof on such owner, to be recorded in the books used for recording deeds in the office of the county clerk of any county in the state where any of the property described in such notice is situated, and the record of such notice and such proof of service shall be prima facie evidence of the due service thereof.The court of claims, or the board, if any, succeeding to its powers and duties, or by which it is or may be superseded, shall have jurisdiction to determine the amount of compensation for lands, structures and water so appropriated.’

[1] No statutory provision opens the door for retreat after the state has once appropriated property under the provisions of this act.The state engineer and the canal board have no express authority to rescind a prior appropriation of lands for canal purposes, nor does such authority exist by necessary implication.The statute is clear.The appropriation is deemed complete from the time of the service of the notice, which is made conclusive evidence of the taking and is binding on all concerned.When the lands are appropriated the owners are entitled to have their damages assessed and paid in money.‘It is a compulsory purchase by public authority, and the individual receives money in the place of the property taken’(People v. Adirondack Ry. Co., 160 N. Y. 225, 238,54 N. E. 689), and has a right to insist upon payment (Jackson v. State of N. Y., 213 N. Y. 34, 35, 36,106 N. E. 758, L. R. A. 1915D, 492, Ann. Cas. 1916C, 779).Service of the notice of appropriation, under the provisions of the statute, is ‘the vital act appropriating the lands for which the state must pay.’Ontario Knitting Co. v. State of N. Y., 205 N. Y. 409, 417,98 N. E. 909.‘As to the quantity of estate acquired by the state[for the use of the state canals] I entertain no doubt that it is a fee simple.’Rexford v. Knight, 11 N. Y. 308, 314.

The state now contends that the title to land appropriated under the Barge Canal Terminal Law vests in the state only when the compensation to be paid therefor is fixed or when the statute of limitations has run against a claim for such compensation, and that the state may abandon the appropriation at any time before title vests.The substance of this contention is that there has been no permanent appropriation of claimants' lands, and therefore the claimants have no vested right to compensation except as damages for...