is taken from him through the exertion of the high powers of the state, and the spirit of the constitution clearly requires that he shall not be thus compelled to part with what belongs to him without the payment, not alone of the abstract value of the property, but of all the necessary expenses incurred in fixing that value." Matter of City of New York, supra. However, as costs or allowances for expenses in legal proceedings depend on statute, none can be allowed an owner of property condemned in the absence of statutory provisions therefor. In re Rapid Transit R. Co., (1909) 197 N. Y. 81, 90 N. E. 456, 18 Ann. Cas. 366, 36 L. R. A. (N. S.) 647, modifying 128 App. Div. 103, 112 N. Y. S. 619; In re Brooklyn, (1895) 148 N. Y. 107, 42 N. E. 413, affirming 88 Hun 176, 34 N. Y. S. 991.

87. Eminent domain.
Private roads.

Drainage of agricultural lands.
Excess condemnation in cities,

When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by the Supreme Court with or without a jury, but not with a referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.

The Legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending or relocating parks, public places, highways or streets; provided, however, that the additional land and property so authorized to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased.

Const. 1846, Art. I, § 7; amended, Const. 1894, Art. I, § 7; amended, 1913.

Validity under Federal Constitution.-Section 1 of the 14th amendment to the Federal Constitution prohibiting any state from depriving any person of life, liberty, or property without due process of law does not require as an element of due process in condemnation proceedings that the damages to be allowed for the property taken be assessed by a judicial proceeding. The modes of appraisal here prescribed are not therefore violative of that amendment. In re Ryers, (1878) 72 N. Y. 1, 28 Am. Rep. 88, affirming 10 Hun 93. Scope. This section applies only to cases wherein property is taken from its owner in invitum. The legislature may specify such modes as it lists for ascertaining the compensation to be allowed for property taken under a statute contemplating appropriations only with the consent of owners. Matter of Lent, (1900) 47 App. Div. 349, 62 N. Y. S. 227. The section is likewise limited in its force to the assessment of the damages resulting from the appropriation of property and does not require that special assessments levied to meet those damages be made by one of the tribunals named. People v. Brooklyn, (1851) 4 N. Y. 419, 55 Am. Dec. 266, reversing 9 Barb. 535. Nor need the award allowed be distributed among the respective claimants thereof by such a tribunal. New York Cent., etc., R. Co. v. Mathews, (1911) 144 App. Div. 732, 129 N. Y. S. 828.

Appropriation by state.-According to the terms of this section compensation need not be assessed by any of the tribunals by it recognized where property is taken directly by the state. Litchfield v. Bond, (1905) 105 App. Div. 229, 93 N. Y. S. 1016, reversed on other grounds, 186 N. Y. 66, 78 N. E. 719. Thus, the requirements of this section do not extend to land appropriated by the state for canal purposes. Waterloo, etc., Manuf'g Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, reversing 58 Hun 50, 11 N. Y. S. 829. Mode of assessment questioned by taker.- The provisions of this section specifying the modes of determining the compensations for private property taken for public use, but not by the state, are designed for the sole benefit of owners. A party who has invoked the aid of a statute to acquire title to private property by condemnation cannot therefore at a later stage in the proceedings object to its constitutionality because the mode of assessing damages prescribed therein did not conform to the requirements of this section Matter of Hand Street, (1889) 55 Hun 132, 8 N. Y. S. 610; Knapp v. Newtown, (1874) 1 Hun 268.

Subversion of owner's rights by party to proceeding. The right of an owner to have his compensation determined by one of the tribunals here enumerated is absolute. It can be subverted no more by the party making the appropriation than by legislative enactment. Thus a corporation cannot by continuing a trespass amounting to an appropriation of property and by refusing to acquire title thereto compel the owner to bring a suit for damages, past and future. On the contrary, a court will restrain the continuance of the trespass at the solicitation of the owner. Ascher v. South Shore Traction Co., (1911) 144 App. Div. 234, 128 N. Y. 8. 1044.

Subversion by court.- A court cannot compel an abutter who owns the fee in a street to accept damages assessed by it in lieu of the injunction sought by him to restrain the construction of a railroad in the street, since that would in effect deprive him of his right to have his compensation determined by one of the modes here prescribed. Peck v. Schenectady Ry. Co., (1901) 67 App. Div. 359, 73 N. Y. S. 794, affirmed 170 N. Y. 298, 63 N. E. 357. An order of a court suspending an injunction to restrain a nuisance and requiring that the party maintaining the nuisance pay over to the one whose

property rights are invaded thereby a certain sum in damages is, however, no violation of this section, in so much as the court may fix the terms on which it will suspend an injunction and as the property owner need not accept those damages but may demand their assessment in the manner here specified. Sponenburg v. Gloversville, (1904) 96 App. Div. 157, 89 N. Y. S. 19. Subversion by legislature.-Though it is doubtless true that " an assessment may be made in the first instance in any manner that the legislature sees fit to direct, provided that an unqualified and unfettered right of appeal is given whereby the damages may be ascertained in the manner required by the Constitution," the right of appeal in such a case must be absolute and unhampered by any conditions which the landowner may not be able to meet. A statute (ch. 59, Laws 1878) providing for an assessment in the first instance by a tribunal other than that provided by the constitution and conditioning the right to appeal from that tribunal on the giving of a bond in the penalty of two hundred and fifty dollars for the payment of fees and costs in the proceeding, provided the original award is not increased twenty dollars to each party, imposes an unreasonable restriction on the right of appeal and is hence invalid. People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325. The legislature may, however, cure irregularities in an award resulting from the failure of a body duly appointed in compliance with this section to observe certain statutory formalities when its action in nowise violated this or any other constitutional provision. The award in such an instance is in no sense made by the legislature. People v. McDonald, (1877) 69 N. Y. 362, modifying 4 Hun 187.

Grade crossing commissioners.- Compensation for an appropriation cannot be left to the final and exclusive determination of such a board as grade crossing commissioners. Myer v. Adam, (1901) 63 App. Div. 540, 71 N. Y. S. 707, affirmed 169 N. Y. 605, 62 N. E. 1098; Matter of Grade Crossing Com❜rs, (1896) 6 App. Div. 327, 40 N. Y. 8. 520.

Park commissioners appointed under the "Park Act" (ch. 193, Laws of 1888) constitute a constitutional tribunal competent within this section to assess damages for lands appropriated by virtue of that act. Matter of Rochester, (1897) 24 App. Div. 383, 48 N. Y. S. 764.

Necessity of notice.— Due process of law does not require notice to the owners of property appropriated of the formation of the tribunal to assess damages. People v. Adirondack R. Co., 160 N. Y. 225, 54 N. E. 689, reversing 39 App. Div. 34, 56 N. Y. S. 869, and affirmed in 176 U. S. 335, 20 S. Ct. 460, 44 U. S. (L. ed.) 492; In re Middletown, (1880) 82 N. Y. 196; In re New York El. R. Co., (1877) 70 N. Y. 327, affirming 7 Hun 239; Long Island R. Co. v. Bennett, (1877) 10 Hun 91. See art. 1, § 6. Notice of the proceedings to assess compensation must be given them, however, and they must be given a hearing as to the amount to be allowed. People v. Adirondack R. Co., (1899) 160 N. Y. 225, 54 N. E. 689, reversing 39 App. Div. 34, 56 N. Y. S. 869, and affirmed in 176 U. S. 335, 20 S. Ct. 460, 44 U. S. (L. ed.) 492; In re Middletown, (1880) 82 N. Y. 196; In re New York El. R. Co., (1877) 70 N. Y. 327, affirming 7 Hun 239. The notice need not be personal, but is sufficient if of such nature that it will probably apprise the owners of the proceedings. Schneider v. Rochester, (1895) 90 Hun 171, 35 N. Y. 8. 786, appeal dismissed 155 N. Y. 619, 50 N. E. 291. Thus, notice by publication satisfies the requirement of due process of law in this respect. In re New York, (1884) 99 N. Y. 569, 2 N. E. 642, affirming 34 Hun 441. An assessment purely tentative in nature may be made, too, without notice to owners if full opportunity to be heard before the rendition of a final award is secured them. In re New York (1884) 99 N. Y. 569, 2 N. E. 642, affirming 34 Hun 441.

Nature of jury.- The jury here referred to is not the common-law jury preserved by article 1, section 1, for at the time of the Constitutional Convention there was a known legislative usage in respect to this subject, according to which the term 'jury' did not necessarily import a tribunal

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consisting of twelve men acting only upon a unanimous determination, but on the contrary was used to describe a body of jurors of different numbers and deciding by majorities or otherwise as the legislature in each instance directed," and according to the well-recognized canons of constitutional construction the convention ought to be deemed to have used that term in the sense in which it was then known to the law. Wherefore, chapter 31, Laws of 1847, amending chapter 216, Laws of 1846, is constitutional, though it provides for the appraisement of damages by a majority of the jurors appointed thereunder. Cruger v. Hudson River Co., (1854) 12 N. Y. 190. The authority of that holding was questioned in Menges v. Albany, 56 N. Y. 374, but the case was referred to with approval in People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325. Qualifications of jurors.-The word " 'jury" in this connection means a jury of men selected from a court jury list and possessing such qualifications as the existing law prescribes for jurors serving in the courts. People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325; Cruger v. Hudson River R. Co., 12 N. Y. 190. Wherefore, an act (ch. 291, Laws of 1870, as amended by ch. 59, Laws of 1878, and ch. 694, Laws of 1892) authorizing the board of trustees of a village to appropriate land for the opening of new streets is unconstitutional in that it provides for the assessment of damages for the land taken by a jury composed of men not possessing the qualifications of court jurors and not drawn from the court jury list. People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325.

II. AWARD BY COMMISSIONERS.

Power of commissioners.— This section does not prohibit the legislature from vesting in the commissioners other functions than that of assessing the damages to be allowed for the appropriations made. Thus, it may lawfully empower them to fix the extent of an appropriation. In re Middletown, (1880) 82 N. Y. 196. But the sole power directly conferred on a commissioner by this section is to assess damages, and any further powers must be expressly given by the legislature. Accordingly, it has been held that in the absence of statutory authority commissioners appointed under section 159 of the Village Law (Laws of 1897, ch. 414) to determine the compensation to which a person is entitled who claims damages to his land resulting from a change of grade, have no power to entertain a motion to dismiss the proceeding upon the ground of a failure to serve the notice within the statutory time from the change of grade, and the power to determine the regularity of the proceeding cannot be vested in the commissioner by the stipulation of the parties. Matter of Caffrey, (1900) 52 App. Div. 264, 65 N. Y. S. 470.

Appointment of commissioners.- The requirement that the commissioner be appointed by a court of record is absolute. Persons not so appointed are not competent to act as a commission to assess damages. People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325. The legislature is bound by this requirement; and an act providing for the determination of compensation by commissioners named therein is unconstitutional. People v. Nearing, (1863) 27 N. Y. 306. See also Knapp v. Newton, 1 Hun 268. The appointment, too, must be by the court in fact as well as form; and its action in making the appointment must be a free and independent exercise of its judicial discretion. Cruger v. Hudson River R. Co., (1854) 12 N. Y. 190. Consequently chapter 77, Laws of 1870, prescribing that, for the purpose of ascertaining the compensation to be paid by said city to the owners of lands taken for streets, etc., the common council shall nominate twelve freeholders whose names, on separate ballots, are to be taken before a judge or recorder and to be placed in a box, from whence are to be drawn three who shall be appointed commissioners if unchallenged for cause, is void, since it withdraws the appointment from the court and leaves

to it only the powers to determine the validity of challenges made. Menges v. Albany, 56 N. Y. 374. Chapter 68, Laws of 1844, containing similar provisions, is likewise void. Hilton v. Bender, (1877) 69 N. Y. 75, reversing 2 Hun 1. The mode and manner of the exercise of the power here vested in courts of record, however, lies within the control of the legislature; and it may prescribe that commissioners be appointed by the Supreme Court in certain cases on the application of the board of supervisors. In re Church, (1883) 92 N. Y. 1, affirming 28 Hun 476.

Meaning of court of record. It has been suggested that there is a clear distinction between a court and an individual clothed by virtue of judicial office with the power to hold court, other formalities and officials acting with that individual being required to constitute a court; and that a statute leaving the appointment under this section to a county judge or justice of the Supreme Court individually, rather than to the courts over which they preside, would, therefore, be unconstitutional. Matter of Lent, (1900) 47 App. Div. 349, 62 N. Y. S. 227. See also People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325.

Number of commissioners.—A body of less than three commissioners is not competent to assess damages in condemnation proceedings; and where one of three commissioners originally appointed has become disqualified the other two cannot continue to perform the functions of the commission. Matter of Gilroy, (1896) 11 App. Div. 65, 42 N. Y. S. 640.

The concurrence of all the commissioners in an award is not essential. If all are notified a majority may act. Thus, the court has upheld a statute (ch. 522, Laws of 1884) requiring the appointment of three commissioners in certain condemnation proceedings, but authorizing two to act where the third, having opportunity, declines to take part, is unable to be present, or differs with his associates. In re New York, (1889) 99 N. Y. 569, 2 N. E. 642,

affirming 34 Hun 441.

III, REVIEW OF AWARD.

Right of appeal.- No right exists to appeal from an award rendered in accordance with the provisions of this section; and due process of law is not denied by statutes making such awards final. In re De Camp, (1897) 151 N. Y. 557, 45 N. E. 1039, reversing 77 Hun 478, 29 N. Y. S. 99; People v. Haverstraw, (1896) 151 N. Y. 75, 45 N. E. 384, reversing 80 Hun 385, 30 N. Y. S. 325; In re Prospect Park, etc., R. Co., 85 N. Y. 489, affirming 24 Hun 199; In re State Reservation Com'rs, (1885) 37 Hun 537, appeal dismissed 102 N. Y. 734, 7 N. E. 916.

Legislative power to order review.- An owner whose property has been appropriated has no vested right in an award until its final confirmation. A statute is not unconstitutional, therefore, in giving the authorities of a municipality the power to reject an award made by a commission and to refer the appraisal in question to the same or a new and distinct commission. Schneider v. Rochester, 90 Hun 171, 35 N. Y. S. 786, appeal dismissed 155 N. Y. 619, 50 N. E. 291.

Alteration by tribunal not mentioned in section.- No authority other than one of the tribunals here mentioned can either increase or diminish an award made by such a tribunal. To allow such alteration would in effect nullify the provisions of this section. In re Middletown, (1880) 82 N. Y. 196; Matter of Hand Street, (1889) 55 Hun 132, 8 N. Y. S. 610. See also People v. Thayer, (1895) 88 Hun 136, 34 N. Y. S. 592. Thus, in the Matter of Middletown, supra, the court said: "It is claimed, also, that the provision of section 4 of the act of 1866 providing that on appeal from the award of the commissioners the court may increase or diminish the amount of com pensation is unconstitutional. That must be admitted. The constitution provides (art. 1, § 7) that the compensation to be paid when private prop erty is taken for public use shall be ascertained by a jury or by commissioners