THE facts, which involve the validity of an award for property taken in condemnation proceedings, are stated in the opinion.

Mr. O. O. Cottle and Mr. Edmund P. Cottle for plaintiff in error.

Mr. Clark H. Hammond for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

This case originated in a proceeding begun by the city of Buffalo to appropriate the lands of the plaintiff in error under the waters of the Buffalo River between the Buffalo Creek Indian Reservation line, at or near the crossing of Hamburg street, and the easterly city line of the city of Buffalo. These lands are said to lie under the waters for about seven miles in the circuitous winding of the river, and to embrace about one hundred and forty

one acres.

Application was made to the Supreme Court of the State of New York, at Buffalo, for the appointment of commissioners to ascertain the compensation to be made the owner for the lands described. The plaintiff in error appeared, and three commissioners were appointed to ascertain the just compensation to be awarded to the owner. The commissioners were duly sworn, viewed the premises, and heard a considerable amount of testimony, both for the city and the plaintiff in error, and made a report awarding compensation for the lands taken in the sum of six cents. The plaintiff in error excepted to the award, but the same was confirmed in the Supreme Court of New York. Plaintiff in error moved to set aside the order confirming the report, which was done, and thereupon a new order of confirmation was entered setting out the proceedings in greater detail.

From the order of the Supreme Court confirming the

report of the commissioners appeal was taken, by the plaintiff in error, to the Appellate Division of the Supreme Court of New York, and that court held that the only question presented by the appeal was the adequacy of the award, and reached the conclusion that the evidence showed conclusively that the property was valuable; that while the exact value was difficult to determine, the evidence established that it was more than nominal. 116 App. Div. 555.

The Appellate Division reversed the order of the Supreme Court, and adjudged that new commissioners should be appointed, at Special Term, to determine the compensation to be paid the owners of the premises in question.

The Appellate Division granted leave to the city to appeal to the Court of Appeals of the State of New York, and certified to that court four questions for review, as follows:

"1. Is Charles E. Appleby, as surviving trustee of the Ogden Land Company, under the facts in this proceeding, entitled to an award of more than six cents damages, on the City of Buffalo acquiring the fee to the lands under the waters of the Buffalo River in eminent domain proceedings, taken pursuant to its revised city charter, for the purposes of a public highway?

"2. Were the appraisal commissioners authorized and empowered, under the facts in this proceeding, to fix the actual damages of Charles E. Appleby, as surviving trustee of the Ogden Land Company, on the city of Buffalo acquiring the fee to the lands under the waters of the Buffalo River, at six cents, and to award said sum as and for the just compensation to be made to the said Charles E. Appleby, as surviving trustee of the Ogden Land Company?

"3. Does the City of Buffalo in this proceeding show a necessity for acquiring the fee of said lands?

"4. Did any of the exceptions call for a reversal of the order confirming the appraisal commissioner's report?"

The Court of Appeals overruled a motion to dismiss the appeal. (This ruling is reported in 189 N. Y. 537.) It answered the four questions propounded by the Appellate Division in an opinion reported in 189 N. Y. 163, the questions being answered as follows: "The first question should be answered in the negative. The second question should be answered in the affirmative. The third question is immaterial and not answered. The fourth question should be answered in the negative.”

The Court of Appeals held, among other things, that the Buffalo River had been made a public highway by law; that for a large part of the distance through the city of Buffalo it is navigable to large boats from the lakes, and is a stream of much commercial importance. It held that the proceedings were under due authority of law as enacted in the charter of the city of Buffalo. In answering the questions the Court of Appeals said: "We have no great difficulty in answering these questions to the effect that the commissioners were authorized upon the evidence presented to them if they saw fit so to do to award only nominal damages for the land sought to be acquired by the City. In reaching this conclusion we have assumed as did the City in the institution of the proceedings that the respondent was vested with the fee of the river bed. Upon the other hand there does not appear to be any dispute that either by him or by the company whose rights he represents substantially all of the land abutting upon the river upon either side formerly owned by the Company has been conveyed away. This is a matter of importance as bearing upon the value of the bed of the stream, because if the bed and fee to the abutting lands were owned by the same party it very well might be that the possible connected use of the two

would be an element of much importance in passing upon the value of the bed.

"Many witnesses were sworn before the commissioners in regard to the value of this bed and the amount of the damages which should be awarded for taking it. Their evidence presented a well-defined question of fact, the testimony ranging all the way from a valuation at nominal figures to one of very substantial amount. In addition to hearing the testimony of these witnesses the commissioners were under obligations to and we must assume did view the premises to be taken. Various theories were doubtless presented to them, as they have been to us leading to the view that the land was of substantial value. These theories are more or less speculative.

"We think that the commissioners were so justified by the evidence in making the award which they did make that we cannot say, as a matter of law, that there was no evidence to sustain their conclusions."

The Court of Appeals further held that should the first and second questions be regarded as questions of fact not to be considered by it, and the third question be treated as immaterial, there would be left for consideration only the fourth question, and there being no exceptions calling for a reversal of the order confirming the commissioner's report the order of the Appellate Division would have be reversed.

The case is now brought here for a review of the judgment of the Court of Appeals, for this is the effect of the proceeding in error, although under the practice in New York the judgment of the Court of Appeals is remitted to the Supreme Court of New York, and the writ of error runs to that court.

The case has been elaborately argued, orally and in the voluminous brief of the plaintiff in error, and many alleged errors of procedure in rulings upon construction of state statutes, and questions of practice in the state courts

are pointed out. Indeed, the case has been argued, apparently, upon the theory that this court has the power, embraced in a general right to review, to correct errors in trials and procedure in the state courts.

This court has had frequent occasion to say that its right to review the judgment of the highest court of a State is specifically limited by the provisions of § 709 of the Revised Statutes of the United States. This right of review in cases such as the one at bar depends upon an alleged denial of some right, privilege or immunity specially set up and claimed under the Constitution, or authority of the United States, which it is alleged has been denied by the judgment of the state court. In such cases it is thoroughly well settled that the record of the state court must disclose that the right so set up and claimed was expressly denied, or that such was the necessary effect, in law, of the judgment. Sayward v. Denney, 158 U. S. 180, 183; Harding v. Illinois, 196 U. S. 78; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 97.

In the case at bar an elaborate assignment of error for the purpose of bringing the case to this court is found in the record, in which many rulings are referred to, which, it is alleged, resulted in deprivation of rights of Federal creation. But it is well settled that the assignments of error made for the purpose of bringing the case to this court cannot be looked to for the purpose of originating a right of review here. This must necessarily follow from the provisions of § 709, which permit a review in this court of rulings concerning claims of Federal right which were set up and denied in the state court. Neither the petition for writ of error in the state court after judgment, nor the assignments of error in this court, can supply deficiencies in the record of the state court, if such exist. Harding v. Illinois, 196 U. S. supra, and previous cases in this court therein cited.

The jurisdiction of the Court of Appeals of New York VOL. CCXXI-34