33 be situated, and the record of such notice and of such 34 proof of service shall be evidence of the due service 35 thereof.

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R. S., 735, L. 1849, ch. 352, §§ 1, 2. (Post, p. 2973.)

§ 61. Permanent appropriation for repairs.- Whenever 2 in the judgment of the superintendent of public works 3 any of the earth structures of the canals of the state 4 should be raised, widened, strengthened or otherwise 5 improved, he may enter upon and permanently appro6 priate to the use of the state so much of any lands 7 adjacent to the canals as may be necessary to provide 8 earth and gravel for such purposes.

9 Claims for damages by reason of any such appropria10 tion may be adjusted and paid by the superintendent, if 11 the amount thereof can be agreed upon with the owners 12 of the lands appropriated, but such amount shall not be 13 paid out of the treasury unless the canal board shall 14 approve thereof.

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§ 62. Owner of lands entitled to damages. The fee2 simple of all real property permanently appropriated 3 for the use of the canals of the state shall be vested in the 4 people of this state. The owners or persons interested 5 in any real property so permanently appropriated shall 6 be entitled to be allowed and paid the damages result7 ing or accruing to them in consequence of such appro8 priation, after deducting therefrom the benefits received 9 by or resulting to them in consequence of the construc10 tion and maintenance of the canal for the use of which 11 the appropriation is made.

R. S., 735, L. 1849, ch. 352, §§ 1, 2. (Post, p. 2973.)

1 § 63. Damages resulting from the erection of dams or the 2 temporary occupation of lands. The owner of any lands 3 overflowed by the erection of any dam by the superin4 tendent of public works on any river or stream con5 nected with such public works, or of any lands, waters 6 or streams which such superintendent shall have occu7 pied for temporary purposes in the construction or

8 improvement of any canal or other work connected 9 therewith, or on which the superintendent shall have 10 entered for the purpose of obtaining materials for the 11 construction or improvement of such canal or other 12 works, shall have allowed and paid to them such just 13 and equitable damages as they may have sustained by 14 reason of the erection of any such dam, or any such 15 occupation or entry upon any such lands, waters or 16 streams, and the superintendent of public works may 17 agree with such owner upon the amount of such 18 damages subject to the approval of the canal board.

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$ 64. Temporary appropriation for repairs.- Whenever 2 the navigation of any canal shall be interrupted or 3 endangered, the superintendent of public works shall 4 without delay repair the injury causing or threatening 5 such interruption, and for that purpose he shall have 6 power by himself or by his agents to enter upon and 7 use any contiguous lands, and to procure therefrom all 8 such materials as in his judgment may be necessary or 9 proper to be used in making such repairs, and to agree 10 with the owners of the property so appropriated upon 11 the amount of damage to be paid him therefor, subject 12 to the approval of the canal board.

1

R. S., 718, § 23. (Post, p. 2951.)

§ 65. Claims for damages. There shall be allowed and 2 paid to every person sustaining damage from the canals 3 of the state or from their use or management, or result4 ing and arising from the neglect and conduct of any 5 officer of the state having charge thereof, or resulting or 6 arising from any accident, or other matter or thing con7 nected with the canals, the amount of such damages to 8 be ascertained and determined by the proper action or 9 proceedings in the court of claims; but no judgment 10 shall be awarded by such court for any such damages 11 in any case unless the facts proved therein shall make 12 out a case which would create a legal liability against

13 the state were the same established in evidence in a 14 court of justice against an individual or corporation.

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R. S., 736, L. 1870, ch. 321, § 1. (Post, p. 2974.)

§ 66. Alteration of roads. Whenever for the purpose 2 of constructing a canal or for making any extraordinary 3 repairs or improvements, it shall be deemed necessary 4 by the superintendent or assistant superintendent 5 having charge of the work to discontinue or alter any 6 portion of a public road on account of its interference 7 with the proper location or construction of such work, 8 he shall make or direct to be made such discontinuance 9 or alteration, and file in the town clerk's office of the 10 town in which it may be situated, an accurate descrip11 tion of all parts of any public road so discontinued and 12 laid out anew, and from the time of filing, such discon13 tinuance and alteration shall be deemed to have been 14 made. The superintendent or his assistant shall not 15 obstruct the passage of any portion of a public road so 16 discontinued or altered, until he shall have opened and 17 worked, so as to render passable, such part of such road 18 as shall have been laid out anew by him. The certificate 19 in writing of any justice of the peace in the county 20 where such road shall be situated, that the part so laid 21 out anew has been so opened and worked, shall be suffi22 cient evidence thereof. Every alteration heretofore 23 made by any engineer in any public road on either of 24 the canals shall, from the time of such alteration, be 25 deemed valid in law.

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R. S., 717, art. 2, §§ 19, 20, 21, 22. (Post, p. 2950.)

§ 67. Farm and road bridges.-The superintendent of 2 public works is authorized and required to construct 3 and hereafter maintain at the public expense road and 4 street bridges over the Erie, Oswego, Cayuga and Seneca 5 canals and the Cayuga inlet, in all places where such 6 bridges have been constructed prior to the 20th day of 7 April, 1839, if, in his opinion, the public convenience 8 requires that they should be continued, whether there

9 tofore maintained at the expense of the state or of the 10 towns, villages and cities where they are situate.

11 The superintendent is authorized to construct farm 12 bridges over such canals and inlet when the same, in his 13 opinion, are reasonably required, having reference to 14 the accommodation of the owners of the land and a due 15 regard to economy to the state and the convenience of 16 navigation. But this provision shall not be construed to 17 abridge the power of the superintendent in relation to 18 streets, roads and bridges as prescribed by law upon the 19 date above specified.

20 When a farm bridge is constructed in lieu of one 21 theretofore maintained by the owner of the land and dam22 ages shall be claimed by such owner for the appropriation 23 of lands or other injury done in the enlargement of the 24 canals, the benefit derived by the owner by being relieved 25 from the expense of maintaining the farm bridge over 26 the canal shall be set off against any damage so claimed. R. S., 773, L. 1839, ch. 207, §§ 1, 2, 3. (Post, p. 3022.)

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§ 68. Commutation for bridges.- The superintendent 2 of public works is authorized in all cases, where in his 3 opinion the same can be done consistent with the public 4 interests, to commute with owners and claimants of 5 bridges over any canal, by paying such owner or claimant 6 such sum in lieu of a bridge as may be agreed upon 7 between the claimant and the superintendent. In all 8 cases where in the opinion of the superintendent a bridge. 9 over a canal ought not to be rebuilt, and the sum to be 10 paid by commutation shall not be agreed upon, the 11 bridge shall not be built, but the damages sustained by 12 such owner by being deprived of such bridge, and which 13 the state under all the circumstances ought of right to 14 pay, shall be ascertained in the same manner as damages 15 for the appropriation of real property for the use of the 16 canals, and paid by the superintendent. If the damages 17 shall be claimed for the deprivation of the bridge which 18 the claimant had before constructed or maintained, the 19 circumstance of his being equitably bound to contribute

20 towards the construction and maintenance of an enlarged 21 bridge a sum equal to the expense of the maintenance 22 of a bridge proportionate to the size of the original 23 canal shall be taken into consideration and a proper 24 amount on that account shall be set off against any 25 damage to which the claimant might otherwise be 26 entitled.

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R. S., 773, L. 1839, ch. 207, §§ 4, 5, 6. (Post, pp. 3022-3.)

$69. Private road in lieu of bridge.- When the super2 intendent of public works shall be of opinion that the 3 state may be reasonably required to erect a farm bridge 4 over any canal for the accommodation of the owner of 5 the adjacent lands, and he can not commute for such 6 bridge with such owner on satisfactory terms, and the 7 superintendent shall determine that a private road 8 through adjoining lands will sufficiently accommodate 9 the owner, he is authorized to apply to the commis10 sioner of highways of the town in which such lands lie, 11 to lay out a private road for the accommodation of the 12 owner, pursuant to the provisions of law relating to the 13 laying out of private roads, and such damage as may be 14 assessed to the owner of the lands through which such 15 road is laid out shall be paid by the superintendent, 16 when it can be done with a due regard to economy to 17 the state.

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R. S., 774, L. 1840, ch. 372. (Post, p. 3023.)

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§ 70. Certificate of title required before payment of 2 damages. Neither the comptroller or the commis3 sioners of the canal fund shall pay any damages awarded, 4 or the amount of any commutations agreed on for the 5 appropriation of land or water, or for the erection of a 6 farm bridge until a satisfactory abstract of title and 7 certificate of search as to incumbrances is furnished, 8 showing the person demanding such damages or commu9 tations to be legally entitled thereto, which abstract 10 and search shall be filed in the office of the comptroller. R. S., 741, L. 1854, ch. 332, § 5. (Post, p. 2981.)