CANAL. An artificial cut or trench in the earth, for conducting and confining water to be used for transportation.
2. Public canals originate under and charters enacted to authorize their con struction and to protect and regulate their. use. They are in this country constructed and managed either by the state itself, act ing through the agency of commissioners, or by companies incorporated for the purpose. These commissioners and companies are armed with authority. to appropriate private property for the construction of their canals, in exercising which they are bound to a strict compliance with the statutes by which it is. conferred. Where private property is thus taken. it must be paid for in gold and silver, 8 Blackf. 246. Such payment need not precede or be cotemporaneous with the. tak ing, 20 Johns. N. Y. 735; 4 Zabr. N. J. 587; 8 Blackf. hid. 266 ; though, if postponed, the proprietor of the land taken is entitled to in-_ terest. 5 Den. N. Y. 401 ; 1 Md. Ch. Dec. 248. The. following cases relate to the rules to• be observed in estimating the amount of damage to be awarded for private property taken or injured' by the construction of canals., 7 Blackf. Ind. 209 ; 5 id. 384-543; 6 id. 483; 1 Watts & S. Penn. 346 ; 1 Penn. St.. 462; 15 Barb. N. Y. 457, 24 id. 362 ; 4 Wend. N. Y. 64,7; 1 Spenc. N. J. 249; 14 Conn. 146 ; 16 ad. 98; 1 Sneed, Tenn. 239; 1 Sumn. C. C. 46.
3. After the appropriation of land for a canal, duly made under statute authority,, though the title remains in the original owner until he is. paid he cannot sustain an action against the party taking the for any injury thereto. 19 Barb. N. Y. 263, 370 ; 4 Wend. N. Y. 647; 20 Johns. N. Y. 7351 7 Johns. Ch. N. Y. 314 ; 19 Penn. St.
456. But if there be .a deviation from the statute authority, the statute is no protection against suits by persons injured by such de viation. 4 Den. N. Y. 356 ; 26 Wend. N. Y. 485 • 1 Sunm. C. C. 46 ; 2 Dow. 519 ; Coop. Ch. 77. Appraisers appointed to assess dam ages for land taken have no authority to entertain claims not presented in the mode and within the time prescribed by statute.
9 Barb. N. Y. 496 ; 11 N. Y. 314. But though a special remedy for damages be given by a statute authorizing the construction of a canal, the party injured thereby is not barred of his common-law action. 24 Barb. N. Y. 159 ; 5 Cow. N. Y. 163 ; 16 Conn. 98. But see, to the contrary, 12 Mass. 466 ; 1 N. H. 339. The legislature have the exclusive power to determine when land may be taken for a canal or other public use, and the courts cannot review their determination in that re spect. 9 Barb. N. Y. 350 ., 8 Blackf. Ind. 266.
4. In navigating canals, it is the duty of the canal-boats to exercise due care in avoid ing collisions, and in affording each other mutual accommodation ; and for any injury resulting from the neglect of such care the proprietors of the boats are liable in damages. 19 Wend. N. Y. 399; 8 id. 469; 6 Cow. N. Y. 698; 1 Penn. St. 44. The proprietors of the canal will be liable for any injury to canal boats occasioned by a neglect on their part to keep the canal in proper repair and tree from obstructions. 7 Mass, 189; 7 Mete. Mass. 276; 13 Gratt. Va. 541; 8 Dan. Ky. 161; 7 Ind. 462 ; '20 Barb. N. Y. 620; 4 Kill. N. Y. 630. 11 Ad. & E. 223. In regard to the right of the proprietors of canals to tolls, the rule is that they are only entitled to take them as authorized by statute, and that any ambiguity in the terms of the statute must operate in favor of the public. 2 Barnew. & Ad. 7923 2 id. 58; 2 Mann. & G. 134; 9 How. 172 ; 6 Cow. N. Y. 567 ; 21 Penn. St. 131. For other cases relating to various points arising under statutes in regard to canals, see 8 Blackf. Ind. 352 ; 12 Mass. 403; 7 B. Monr. Ky. 160; 4 Zabr. N. J. 62, 555; 11 Penn. 202; 2 id. 217 ; 1 Binn. Penn. 70; 1 Gill, Md. 222; 6 Watts & S. Penn. 560 ; 17 Barb. N. Y. 193 ; 19 id. 657 ; 25 Wend. N. Y. 692. See RAILWAY.