App. Div.] Third Department, November, 1911. than by direct claim. In response to this it may be well to note that no bad faith has been found by the trial court either on the part of the claimant or the State Engineer; nor is any bad faith claimed on the part of either by the Attorney-General in his brief; nor is there the slightest evidence of bad faith in the record before us. The claimant's land has been taken without its consent, and all forms have been followed necessary to vest the title absolutely in the State. The course of the claimant in refusing to take orders after the formal appropriation by the State is claimed to evince an undue eagerness upon its part to sell its land to the State. If we consider a moment, however, it is apparent that the claimant could do nothing else. The title to its land had been taken by following the mode prescribed by the statute, which is made by the statute conclusive evidence of title in the State. With title divested and a lawsuit upon its hands for compensation, the credit of the company was necessarily largely impaired. As will hereafter appear, it was no defense to the claimant that the State Engineer exercised bad judgment, provided only he had the power to appropriate this land. In this situation I submit that the claimant pursued the only course that was open to it and proceeded to close up its business, recognizing the title in the State. Again, the fact that claim was made for $1,000,000 of damage, and the proof only showed $700,000, is claimed to be evidence of bad faith. If a lawyer were bound to make proof of all the damage claimed in his complaint, and in default of which he were adjudged to have acted in bad faith in thus drawing that complaint, very few lawyers would escape disbarment. The intimation that the plaintiff would prefer large damages from the State has very little weight with those who know of the scrupulous jealousy with which the Court of Claims guards the State treasury. If any claimant ever filed a claim before the Court of Claims with any hope of getting more than he was entitled to, he was invariably doomed to grave disappointment. In this case, if the Court of Claims were directed to give to this company the loss which it had suffered by the appropriation of this property, there is not the slightest danger that the State would be subjected to any excessive damages. Nor is there the slightest evidence of the bad faith of the State Third Department, November, 1911. [Vol. 147. Engineer. According to the plans of the canal under which the contract was made, that wall needed strengthening. At least three or four feet were necessary upon which the strengthening wall should be placed. Considerably more than that amount was necessary for the doing of the work. To condemn those three or four feet would involve the tearing down of the claimant's mill, or at least so much of a destruction that the damage to the claimant would be almost as much as the taking of all of claimant's property. After the wall had been strengthened and the work had been done, what remained of the land could have been sold by the State, if the Legislature had seen fit to so authorize, at a price which would minimize, if it would not entirely overbalance, the amount of damage which the State would have to pay for the whole mill. And this can now be done. There is no constitutional prohibition which will prevent the Legislature directing the sale of this property, and the price which it should bring upon a public sale would be some evidence of its value upon the trial of this claim for damages, and would go to repay the State for the compensation which it should pay to claimant. This land would not become a part of the forest preserve, and would not become so far a part of the Oswego canal as would bring it within the provision of section 8 of article 7 of the State Constitution. That provision has been construed as meaning that "Neither the canals as highways of commerce, nor other property owned by the State connected with the canals and actually essential to their operation and maintenance, shall be sold or leased." (Sweet v. City of Syracuse, 129 N. Y. 317.) It might well have been held that the State Engineer was wiser than was the Canal Board in afterwards changing the alignment of the canal so as to render unnecessary the taking of any of this property. Moreover, this land might be used in various ways in connection with the use of the canal and in connection with the construction thereof, as will be hereafter considered. All these matters were discussed between the State Engineer and his deputy, and the State Engineer exercised his best judgment in making this appropriation. Whatever might have been the effect of collusion between the claimant and the State Engineer, it seems to me clear that App. Div.] Third Department, November, 1911. any bad faith on the part of the State Engineer alone is wholly immaterial to this controversy. I have not overlooked the authority of People v. Fisher (190 N. Y. 468, 477). But that was a case where the person whose property was claimed to have been appropriated was contending that there was no lawful appropriation of the fee. In resisting the right of the State to appropriate, the owner might well claim that the judgment of the State Engineer should be exercised in good faith before it should authorize the taking of her property in invitum. Where, however, the owner of the estate does not resist the appropriation by the State, but simply claims damages for that appropriation, the State is estopped from denying the good faith of its constitutional officer in making that appropriation. Otherwise the owner of property would be at the mercy of the State, or rather of the State Engineer, who could allege his own bad faith in case, by a change of plans, the property should afterwards become unnecessary for the purposes of the canal. The only question in this case upon which the right of the plaintiff must, it seems to me, depend, is whether the State Engineer and Superintendent of Public Works had authority for any purpose to appropriate this land. The authority of the State Engineer to appropriate this land is found in section 4 of chapter 147 of the Laws of 1903 (as amd. by Laws of 1906, chap. 365). That statute provides: "The State Engineer may enter upon, take possession of and use lands, structures and waters, the appropriation of which for the use of the improved canals and for the purposes of the work and improvement authorized by this act, shall in his judgment be necessary." Under this statute the State Engineer represents the sovereignty of the State. His appropriation, if made for the purposes authorized in the statute, is just as effective as would be the appropriation by specific act of the Legislature itself. He is a constitutional officer and within the limits of the instructions given him by the Legislature acts under constitutional as well as statutory authority. While the determination as to whether the purpose for which this land had been appropriated is a public purpose is a matter subject to review by the court, his determination of what land is necessary for that purpose is the determi Third Department, November, 1911. [Vol. 147. nation of the sovereign State and is not subject to review by the courts. His reasons for making the appropriation are not the subject of judicial inquiry. In People v. Fisher (116 App. Div. 677) in the prevailing opinion it is said: "It is the general rule that the necessity for exercising the right of eminent domain is a question of a political rather than of a judicial nature; that its determination rests with the Legislature, and the courts have no power to review it, and that the Legislature may delegate the power to public officers, whose determination is likewise conclusive upon the courts. (Matter of Fowler, 53 N. Y. 60; People v. Smith, 21 id. 595.) And so whether it will take the title in fee or simply acquire an easement is likewise a question of that character. As was said by Judge ANDREWS in Sweet v. B., N. Y. & P. R. Co. (79 N. Y. 293, 300): When the statute authorizes the taking of a fee, it cannot be held invalid, or that an easement only was acquired by proceedings thereunder, on the ground that in the judgment of the court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That is a legislative and not a judicial question."" In Matter of Fowler (53 N. Y. 60) it was held: "As the Legislature may delegate the exercise of the right of eminent domain to municipalities, to boards of officers and to public agents, the necessity of an appropriation of lands by those upon whom this right is conferred cannot be inquired into by the courts. If the use to which the lands are to be put is public, the Legislature, or the instrumentality which it employs, is the sole judge of the necessity, unless there is a provision otherwise in the enactment." In Shoemaker v. United States (147 U. S. 282, 298), SHIRAS, J., speaking for the court, said: "The adjudicated cases likewise establish the proposition that while the courts have power to determine whether the use for which private property is authorized by the Legislature to be taken, is in fact a public use, yet if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made." In Lynch v. Forbes (161 Mass. 308, 309) the opinion reads: "The plaintiff contends App. Div.] Third Department, November, 1911. in both cases that the taking was unlawful, and at the trial of the case in trespass he offered to show that prior to the taking in question, the town had taken all the land that it needed, and that this was not suitable and was not necessary, useful or proper for any of the purposes named in the acts under which it was taken. * * In the absence of any provision in the Statutes submitting the matter to a court or jury, the decision of the question lies with the body or individuals to whom the State has delegated the authority to take. They have the same power as the State, acting through any regularly constituted authority, would have." (Citing cases.) In City of Boston v. Talbot (206 Mass. 82) the State was building a subway. It condemned not only the land required for the tunnel itself but also adjacent land, which would probably be injured, and did this in order to economize the expense of damage claims. The validity of the condemnation was sustained. That case is very analogous to the case at bar and the opinions of the learned justices writing therein go very far toward establishing the right of the State Engineer to condemn the whole of this property, even though it be conceded that part only was necessary for the purposes of the construction of the canal. It sanctions the condemnation of the whole property as economically made, as the taking of part would of necessity destroy the structures and the part not needed could be sold or leased or used for other purposes by the State. In the view I take of this case, however, it is not necessary here to go to that extent. The authorities cited would seem to be sufficient to show that the question of the lack of necessity of these lands for the purposes of the canal upon which the judgment of the court below is based is a matter for the State itself alone to determine and is not subject to review by the court. This rule of law has thus been held under the authorities cited as against the protest of the landowner that his constitutional right has been invaded by the taking of his property. If under his protest authority therefor can be found a fortiori where the State has assumed to appropriate the land and the property owner without questioning the right of appropriation is seeking to recover damages therefor, it does not lie with the State to say that although the |