In Matter of Clark v. Water Commissioners (148 N.Y. 1) it is held that a proceeding instituted for the recovery of the value of private property taken for a public use was not a liability created by a statute which empowered the municipality to take the land, although it provided the procedure by which compensation was to be obtained, but that it was a liability created by the Constitution, and hence did not come within the six-year Statute of Limitation imposed by subdivision 3 of section 382 of the Code of Civil Procedure.Summary of this case from Schmidt v. Merchants Despatch Trans. Co.
Argued December 6, 1895
Decided December 19, 1895
Andrew J. Nellis for appellant. E. Countryman for respondent.
We think the General Term erred in holding that the Statute of Limitations constituted any bar to this proceeding. It is objected to a recovery that the proceeding is one to recover upon a liability created by statute, and that it is also one to recover damages for an injury to property. The claim is made under subdivisions 2 and 3 of section 382 of the Code of Civil Procedure, by which the petitioner's cause of action, if of the nature above described, would be barred after six years had elapsed from the time the proceeding might have been commenced. It will be seen that the 2nd and 3rd subdivisions of the above section 382 refer in terms to an action, but by section 414 it is provided that "the provisions of this chapter apply and constitute the only rules of limitation applicable to a civil action or special proceeding, except in one of the following cases." The exception does not apply to this case. And by section 415 the periods of limitation are to be computed from the time of the accruing of the right to relief by action, special proceeding, defense or otherwise, to the time when the claim for relief is actually interposed by the party as a plaintiff or defendant in a particular action or special proceeding. Section 382 may be read, therefore, as to its subdivisions 2 and 3 as if it included a special proceeding as well as an action to recover upon a claim as therein stated.
We are of the opinion that this proceeding comes under neither subdivision of the section above quoted. It is in no sense a proceeding to recover upon a liability created by statute. The liability in this case is a liability to make compensation to the owner of lands and property taken by the water commissioners under the provisions of the statutes above quoted. The liability to pay for property taken is not created by either statute. It is a constitutional liability instead of a mere statutory one. The Constitution prohibits the taking of private property for public use, without due compensation being made therefor. The legislature in giving to the city of Amsterdam or its agents in its behalf the right to take property for public use, and in providing the proper proceeding to be followed in the taking of such property was creating no statutory liability whatever. It was simply delegating the power to take the land and providing the procedure by which the land might be taken and the constitutional liability to make due compensation might be carried out and enforced. Such a liability, we think, does not come within the second subdivision of section 382. The statute did not itself create the liability, although the compensation was to be collected by means of the procedure provided for by it.
Nor is it a proceeding to recover damages for an injury to property, as provided for in subdivision 3 of this section. It is not a proceeding to recover damages for anything. The water commissioners have not injured the plaintiff's property and he seeks to recover no damages for any injury to it within the meaning of the limitation statute. What he seeks is compensation in the shape of payment for the value of the property appropriated and taken by the city of Amsterdam, through its authorized officials, and the resulting depreciation in value of the remaining property. It all comes under the head of liability to make compensation for property taken. By statute they had a right to take such property upon payment being made, and when payment is made the title would pass, and although the water commissioners had a right to initiate the proceedings themselves, yet not having done so the owner himself could, under the same statute, inaugurate them. They are proceedings in either instance to provide for compensation and obtain payment for property taken, not to recover damages simply for property injured. The section of the statute under discussion does not, therefore, apply to this case.
The only other section which might be applicable is section 388, which provides that an action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. The answer to that provision lies in the fact that the proceedings here were commenced before the expiration of the ten years provided for therein.
Again, the counsel for the respondents here contends the order of the General Term is not appealable to this court. If the General Term had affirmed the Special Term and the city of Amsterdam desired to review here the amount of the appraisal, the court could not hear the appeal. But the order of the General Term reversing and dismissing the whole proceeding and leaving the applicant without any award whatever, is appealable to this court, and we have never held to the contrary.
We have looked through the record, and though possibly there may have been some evidence allowed which, upon a strict construction of the rules of evidence applicable to a jury trial at common law ought not to have been admitted, yet we are quite clear in the view that the admission of such evidence ought not to effect a reversal of the award. It may be too that the commissioners were quite liberal in their allowance to the petitioner, but with that we cannot interfere.
We think upon the whole that substantial justice was done in this case by the Special Term, and the order of the General Term should be reversed and that of the Special Term affirmed, with costs to the appellant in all courts.