William H. Houston et al., Respondents, v. George C. Wheeler et al, Appellants; George C. Wheeler et al., Appellants, v. William H. Houston et al., Respondents

William H. Houston et al., Respondents, v. George C. Wheeler et al, Appellants. George C. Wheeler et al., Appellants, v. William H. Houston et al., Respondents. (Argued February 14, 1873; decided February 25, 1873.) The assent of a party to a statute affecting his property is a waiver of his right to question the constitutionality of the act. Such assent need not be in writing, but may be evinced by acting under it, and seeking and accepting benefits thereby conferred upon him. Under the provisions of the act of 1826 in relation to draining “ drowned lands” in the county of Orange (chap. 216, Laws of 1826), which authorized commissioners to construct a ditch or canal “ of such depth and size as might be found necessary and useful” for leading off the waters of the Wallkill river, the commissioners were not limited to their first determination as to the size and width of the canal so constructed, but they were empowered to continue widening and deepening until the object of the statute was accomplished. When the proper and necessary width was reached, a further extension might have been stayed by any one interested; but no one has the right, by any obstruction placed in the canal, to prevent its accomplishing continuously the end for which it was made. The action first entitled was brought to restrain defendants from placing any obstruction in a ditch or canal dug to carry off the waters of the Wallkill river. The action secondly entitled was brought by the defendants in the first to restrain plaintiffs therein from removing a dam constructed by the former in said canal. The two actions were tried together. The following facts appeared • Near the head waters of the Wallkill river there is a large tract of low and swampy land, commonly called the “ drowned lands,” lying partly in New Jersey and partly in Orange county, in this State. In 1804 and 1807 acts were passed by the legislature of this State authorizing the deepening of the channel of the Wallkill for the purpose of draining said lands, and appointing commissioners for that purpose. (Laws of April 9, 1804, page 499, Webster’s ed., vol. 3; Laws of 1807, page 27.) On April 15th, 1826 (Sess. Laws of 1826, chap. 216, page 247), the legislature passed a law authorizing the commissioners, under the act of 1807, in further prosecution of the work of draining, to construct a ditch or canal, commencing at a certain point in the Wallkill and terminating at a certain other point in said Wallkill, further down toward the mouth of said river, “ of such depth and size as may be found necessary or useful for leading or conducting off the waters of the said River Wallkill, and for that purpose to use and occupy ” the necessary lands, etc. The act provided for making compensation to the persons whose lands should be taken for the said canal. The act also forbid the placing of obstructions of a certain description in the said canal under certain penalties. Under said act the commissioners constructed the canal through certain lands, parts of which are now owned by the appellants, all which at the time of the construction of said canal were owned by one George D. Wickham. The said George D. Wickham was one of the commissioners, and also the proprietor of a portion of said drowned lands. He consented to and directed the digging of the canal through his land, and had the principal management and direction of the Work, and devised the plans therefor, and in consideration of the benefits derived by him he relinquished verbally all claims for compensation for the lands taken for said canal, and all claims for damages arising therefrom. The work of constructing the canal was completed about the year 1835. The canal was then made twelve feet wide and four feet deep. By the action of the water upon its sides and bottom it has become, and now is, very much wider and deeper where it crosses the lands of the appellants, so that the waters of the Wallkill mainly flow through the canal. In the summer of 1869 the appellants erected a dam in said canal where it passed through their lands. The respondents, who are the present commissioners, tore down and destroyed the dam, and threatened to destroy the same as often as it should be rebuilt or repaired. The court below found that it was not the intention of the commissioners to leave the canal of the size at which it was made, but that they relied on the water to make the canal deeper and wider. Also that Wickham gave and surrendered all the land taken for the original digging of the canal. u Likewise all the land that might thereafter be taken, occupied or washed away by the extension, widening and deepening of said canal by means of the washing and wearing of the waters flowing or to flow through the same.” “ That said Wickham consented and agreed that the waters of the Wallkill river might and should at all times thereafter be diverted from their original channel through the lands aforesaid without check or hindrance;” and that appellants took their lands charged with the right of the commissioners to have said Waters pass and flow over the same unobstructed. And, as a conclusion of law in the first action, the court found that plaintiffs were entitled to a perpetual injunction, restraining defendants from putting or having any obstruction in said canal. In the second action, judgment was directed for defendants. Held, that the assent of Wickham to the statutes, as evinced by his acts under them, was a waiver of any right to question their constitutionality; that the power given to the commissioners by the statute did not limit them to their first determination as to the depth and width of the ditch, but they were authorized to continue to enlarge it by their own acts or the operation of the water until the necessary size to accomplish the object desired was reached as soon as this was accomplished; that its further extension might be stayed by any party interested; but that no one had the right to place obstructions in the ditch or retard the flow .of the: waters to prevent the accomplishment continuously of the. end so desired, and that the-judgments therefore were correct,. Amasa, J. Parlcer for the appellants. Samuel Hand for the respondents. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance of judgments, All concur. Judgments affirmed.