contractor than as a quasi public agency. The grant of the power of eminent domain carries with it a public duty as well as a governmental power, and it seems quite extraordinary that a corporation can seek to exercise such power to accomplish a result which it is bound by private contract to abandon the moment the result is attained. This is not a case where the petitioning corporation simply intends to condemn for the benefit of a lessee, which possesses similar public powers and duties, as was the case in Kip v. New York & Harlem R. R. Co., 67 N. Y. 227; nor is it a case in which the petitioning corporation seeks to condemn land which it will need for its own corporate purposes in the near future, or which it may need, with the purpose of using its own system as a connecting link with other systems, and so increasing its own public usefulness, as was the case in Matter of Staten Island Rapid Transit Co., ut supra.

There is authority in this state that a railroad corporation which has leased its system for the full term of its corporate life may nevertheless exercise its power of eminent domain for a public use to be maintained by its lessee, but the reason for such holding, as given by the court which made it, is as follows: (a) That the statute which granted power to a railroad corporation to condemn lands for railroad purposes likewise authorized such corporation to condemn lands for the benefit of a lessee railroad corporation; (b) "and in the further consideration that by its lease the lessor company in no respect escapes from or lessens its corporate duty to the state, but is continuing the performance of that duty through the agency of its lessee, and may at any time, through the failure of the latter to perform its covenant obligations or by its absolute loss of corporate life and existence, become repossessed of its line and property and bound to operate it for itself, and that to the proper performance of its duty by itself or through its lessee the acquisition of lands or terminal facilities may be necessary and essential." Matter of Petition of N. Y., L. & W. R. R. Co., 99 N. Y. 12, 22, 1 N. E. 27, 31. Here, however, the petitioner is seeking to condemn land simply to perform a contract which it has with a purely private corporation, in order to enable that corporation to perform, in turn, a contract which the latter has made with a municipal corporation, the town of Hempstead, which last corporation has no power of eminent domain in the premises, and no statutory duty to maintain the proposed canal after it gets it by cession from the petitioner. The "canal" no doubt would be a public highway in a broad sense of the word, but it is not such a highway as comes within the provisions of the town law or the highway law.

While I feel that the result sought by the petitioner would be greatly to the public benefit in the locality affected, I am constrained to the opinion that the method by which the attainment of such result is sought has no warrant in law.

RICH, J. (dissenting). The constitutionality of the act, based upon the objection that it permits the taking of land by condemnation for private purposes, is not presented by the appellants, and there is no serious contention that the proposed canal or waterway is not to

be constructed for public use. The incorporating statute declares that lands required for the construction of the waterways "shall be deemed to be required for public use," which is sufficient to establish its public character. In addition, the contract under which the waterway is being constructed by the respondent obligates the petitioner upon its completion to immediately convey, transfer, and surrender it, with all of its appurtenances, to the town of Hempstead, "the same to be thereafter held and used by said town of Hempstead, and its inhabitants and the public generally, forever, according to the true intent and meaning of said town contract." The town contract provides that, upon the completion of the said waterways, they shall become the property of said town and subject to its municipal jurisdiction, the same as other town property, and declares its purpose to be to provide a continuous waterway from Jones inlet to East Rockaway inlet. It follows that, after the waterway is completed and transferred to the town, the petitioner cannot erect warehouses upon its banks, establish tolls for its use, or exercise the powers given by the incorporating statute, for the reason that such rights do not apply to a waterway owned by the town of Hempstead in which the petitioner will have no interest or control after such transfer. Nor can the town avail itself of the powers limited by the statute to the petitioner. The construction of this waterway was part of a proposition submitted to the electors of the town of Hempstead and adopted before the contracts were made. It was intended to be a public water highway. This being established, I think the case is brought within the rule declared in Matter of Burns, 155 N. Y. 23-27, 49 N. E. 246, that, the Legislature having determined the necessity for the exercise of the right of eminent domain, the validity of the act is not open to question on the ground that the use is not public. In Matter of William A. Fowler, 53 N. Y. 60, it was held that the necessity of the appropriation of land by those upon whom the Legislature has conferred the right of eminent domain cannot be inquired into by the courts; that is, the use to which the lands are to be put is public. The Legislature is the sole judge of the necessity unless it is otherwise provided in the act. This case has been cited and the rule reasserted many times, the latest by the Court of Appeals in Matter of Delavan Avenue, 167 N. Y. 259, 60 N. E. 589, and in People v. Fisher, 116 App. Div. 686, 101 N. Y. Supp. 1047. There is a manifest difference in the rules applicable to a corporation created under a general act, which claims to possess the power of eminent domain because of its character, and nature of the improvement it desires to make, under some other general act, and a corporation as to which the Legislature has determined the public character of the improvement to be made, and given the power of eminent domain for the purpose of acquiring land required for the authorized improvement. The act is not subject to the criticism that its purposes are not expressed in its title, which is, "An act to incorporate the Tidal Waterway Company and to define its rights, powers and privileges." This language is a notification to all persons interested that they may find in its provisions all

to construct and maintain a "waterway," which involves, almost necessarily, the right to acquire the land needed for its bed by either purchase or the exercise of the right of eminent domain. The name of a corporation may materially affect the question as to whether a special franchise granted by the act can be sustained. Economic P. & C. Company v. City of Buffalo, 195 N. Y. 297, 88 N. E. 393. In that case Judge Chase says:

"When the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title."

The incorporation of a company and the defining of its rights and powers are in reason and law but the consummation of single purpose. City of Elmira v. Seymour, 111 App. Div. 199, 97 N. Y. Supp. 623; Van Brunt v. Town of Flatbush, 128 N. Y. 50, 27 N. E. 973. The object of the provision of the Constitution upon which this objection is based is to prevent the public from being misled. Matter of Mayor, etc., of City of New York, 99 N. Y. 570, 2 N. E. 642. Nothing short of clear proof that the title is misleading will justify a finding that a legislative act is unconstitutional because of a failure to express its purposes in the title. In Matter of Mayor, 99 N. Y. 577, 2 N. E. 643, Judge Finch said:

"The most valuable test of such a title, and the one which we have usually employed, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the evil at which the constitutional prohibition was aimed. Matter of Lands in Flatbush, 60 N. Y. 398; Matter of Paul, 94 N. Y. 497. Where one reading a proposed bill with the title in his mind comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law. But where, as in the present case, no such evil lurks in the title, and the provisions criticised may be easily and reasonably grouped within the scope and range of the general subject expressed, we ought not to destroy the legislation assailed upon some nice and rigid criticism of forms of expression."

It is impossible to spell out trickery or deception from the language used in the title of the act under consideration, and the name of the corporation alone indicates that the right of eminent domain is necessary to effect its purposes, which right is properly included in the "rights, powers and privileges" to which attention is directed by the title. I do not regard the cases of Coxe v. State, 144 N. Y. 396, 39 N. E. 400; Matter of Eureka Basin, etc., Company, 96 N. Y. 42, or Economic P. & C. Co. v. City of Buffalo, 195 N. Y. 286, 88 N. E. 389, as authorities to the contrary. In the first case the title was "An act to authorize the drainage of marsh lands." In addition to the powers usually granted for such purposes, the act conferred upon the corporation the power to levy and collect assessments, and to drain and reclaim tide water marsh lands. Such powers and rights were not inferable from the title, which did not refer to the creation, powers, or rights of any corporation. Of this the court said:

"It is quite clear that no citizen or member of the Legislature would expect to find such an extraordinary grant from the state of lands under water in the body of a bill with such a title."

The question as to the unconstitutionality of the act because of its purposes not being expressed in its title was not considered in Matter of Eureka Basin, etc., Co., supra. In the Economic Power Company Case the title of the act was, "An act to incorporate the Economic Power and Construction Company." Extensive and extraordinary powers were granted under that title which the court held overcame every thought of the same being an incident to the incorporation of a power and construction company. I think that the contentions based upon the unconstitutionality of the act incorporating the respondent are without merit.

It is claimed by appellants that the necessity for taking the land was not established by the evidence. The answer to this is that the act provides that the corporation shall cause the necessary examination and surveys for its proposed waterways to be made, select the most advantageous route, and, when so determined and selected, acquire land by purchase or condemnation, and this amounts to a declaration by the Legislature that the land required for its construction was needed for public use. The company adopted surveys and maps showing the route selected, and, the Legislature having determined the public character of the improvement and given the specific right to condemn the land required, the exercise of such power cannot be inquired into by the courts (Matter of Fowler, supra), and the act is not open to question upon the ground that the use is not public (Matter of Burns, supra). Besides this, I think the evidence is sufficient to establish the necessity for taking the land for a public purpose. Its necessity cannot be successfully challenged because it is within the bed of the proposed waterway, and the land authorized to be acquired on each side of such bed, as shown by the surveys and maps. It is proven that the waterway is to be owned by the town for the use of its inhabitants and the public. If it were held that these words limited its use to the inhabitants of the town, as long as such use is in common and not for a particular individual or corporation, it is "public" within the meaning of that word as used in the Constitution, statutes, and by the courts. Pocantico Waterworks Co. v. Bird, 130 N. Y. 249, 259, 29 N. E. 246. It seems to me that the waterway is shown to be a public utility, usable by the public for public as well as private purposes. If it be true, as contended, that the main purpose of its construction is to afford ingress and egress by the public to the hotels and summer resorts erected and to be erected by the Beach Company, such purpose or user does not condemn the act for the right to exercise the power of eminent domain may be vested in a corporation which may be actuated solely by motives of private gain, if the use to be made thereof is for the benefit of the public. Pocantico Waterworks Co. v. Bird, supra; Economic P. & C. Co. v. Buffalo, supra, 195 N. Y. 295, 88 N. E. 389. Nor do I think the statute is to be considered in the light of what might be done under its provisions in determining the question of its constitutionality upon the case presented. The improvement presented is a completed one. The waterway when completed, with all of its appurtenances, is to be transferred

lic. It thereupon becomes a public utility and municipal property. Nothing more can be done, either by the respondent or the town, under the authority of the statute, and the question of what might be done under the statute if the respondent retained title to the improvement after it was completed is not properly before us. The contention that competent evidence bearing upon the question of the necessity of taking the land for a public purpose was improperly excluded is without merit. This question has been determined by the Legislature, and is not open to the consideration of the commissioners or of the court. Matter of Fowler, supra.

In view of my vote for affirmance, it may not be unwise to say of the contention that the award is so inadequate as to demand its reversal and a new appraisal that it is also without merit. It is argued. that the dividing line between the land sought to be taken and the remaining land of the appellants is to be a straight-banked perpendicular cut of a depth of at least 10 feet, and that no provision is made to prevent the water from undermining and cutting away the lands of the appellants. This assumption is unwarranted, because it is shown by the uncontradicted evidence of the engineer in charge that the canal is being constructed with sloping banks and a careful regard to maintaining them in their integrity; and in this connection it is admitted by witnesses called for the appellants that, if the canal is completed in this manner, its banks will be preserved and bulkheading rendered unnecessary. Of course, the duty rests upon the respondent of constructing the waterway in such a manner as not to damage appellants' remaining property, and, if this is not done, they have an enforceable remedy for further damages. Johnson v. State of New York, 62 Misc. Rep. 15, 116 N. Y. Supp. 253. The consequences feared by the appellants are contingent, speculative, and merely possible, and are not for this reason to be considered in ascertaining damages, which must be determined as of the time of the award. Strohm v. New York, L. E. & W. R. R. Co., 96 N. Y. 305; Coonley v. City of Albany, 57 Hun, 327, 10 N. Y. Supp. 512; Mott v. Lewis, 52 App. Div. 558, 65 N. Y. Supp. 31; Stowers v. Gilbert, 156 N. Y. 600, 51 N. E. 282; Matter of Brooklyn Union El. R. R. Co., 105 App. Div. 111, 93 N. Y. Supp. 924. Speculative damages cannot be allowed, and we cannot say that the award of the commissioners is not a fair and adequate compensation for the property tak

The question was for their decision. They viewed the land before and after receiving evidence, heard and considered the proofs of the parties, saw the witnesses and observed their manner of testifying, and we are not at liberty, in the absence of apparent injustice to the appellants, to set their award aside. Brooklyn El. R. Co. v. Lewis, 87 Hun, 88, 33 N. Y. Supp. 881; Buffalo L. & Ry. Co. v. Phelps, 52 Misc. Rep. 315, 102 N. Y. Supp. 214; Harlem River & P. R. R. Co. v. Reynolds, 50 App. Div. 575, 64 N. Y. Supp. 199; Matter of Brookfield (Sarles Claim) 78 App. Div. 520, 524, 79 N. Y. Supp. 1022, 81 N. Y. Supp. 10; Matter of City of New York (Croton River