Dr.\inage in New York. 281 



owners of the land through which the works pass or by general contract; and in 

 case of inability to agree upon the amount of compensation and damages, for tlie 

 determination thereof by the commissioners and an assessment upon the lands 

 benefited. The commissioners are to take into account any benefits accrued and 

 may deduct the amount of the benefit from the amount of the damage. The dam- 

 ages and expenses are to be assessed in proportion to the benefits received. Pro- 

 vision is made for appeal to the Court from the decision of the commissioners in 

 reference to the assessment, and in case it is confirmed, provision is made for an 

 application by the conmiissioners for judgment against any person not having paid 

 the assessment and such judgments shall be docketed and become a lien upon 

 lands, enforceable as provided in such cases by the Code of Civil Procedure. 

 The methods of procedure are prescribed in connection with the various sections. 



In the decision in the Court of Appeals (163 N. Y. 133) five of the judges con- 

 curred in the opinion that the law is unconstitutional in that it provides for 

 assessment against the owner of land taken by eminent domain. ''Strictly con- 

 strued, the amendment only authorizes laws which will enable an agricultural 

 landowner, desirous of draining his lands, to exercise the right of eminent 

 domain, and thereunder to appropriate another's lands for the purpose, under such 

 restrictions as shall be deemed proper to be made and upon his making due com- 

 pensation. Xo right is conferred or implied to assess a portion of the cost and 

 expense upon the other landowners." Judge Gray further held that the amend- 

 ment to the State Constitution is void, under the Federal Constitution, because 

 since it docs not, in terms, declare its object to be a public one, it is construed 

 to refer to agricultural drainage as a private benefit, and the right of eminent 

 domain cannot be invoked in such cases. On the first ground the New York 

 Courts are at variance with the Courts of most other states in the application of 

 the principles of eminent domain, smce they have not permitted an assessment to 

 be made against the owner whose lands are taken for a pubHc purpose even 

 though he may derive benefit from the improvement. It is manifestly unfair to 

 oblige the petitioner to bear all the costs of an improvement from which his 

 objecting neighbor may derive large benefit. 



The critical point in the second declaration and which was concurred in by 

 only one judge is, that drainage for agricultural purposes in this state is not con- 

 strued under cither the constitution or the decisions and discussions relating 

 thereto, to be a public benefit. Since the amendment thereby fails, the law based 

 upon it must also fail. Drainage for sanitary purposes has been recognized as a 

 public benefit, thereby permitting procedure by right of eminent domain. The 

 concensus of opinion in the state is just coming to the point where it will recog- 

 nize agricultural drainage as a public benefit, as is done in many states and as is 

 generally true in reference to irrigation in the western states. As is indicated by 

 the decision, the question may be raised whether it was not the intention to so 

 recognize agricultural drainage in the passage of the constitutional amendment 

 and the enactment of the drainage law of 1895. I" an opinion dissenting from 

 the last declaration. Judge Haight concurred with Judge Parker in saying that, 



"While I agree with Judge Gray, that the statute under consideration is 

 violative of the State Constitution and therefore concur with him in the 

 result, I am at the same time confident that it was the design of the recent 

 amendment to Section 7 of Article i of the Constitution, to authorize legis- 

 lation providing for a workable scheme by which to secure the drainage of 

 tracts of land, whether large or small, in order to provide for their proper 

 Utilization thus establishing it to be a part of the fundamental law of the 



