75. Removal of encroachments.

76. Agreements for the purchase of water privileges.

77. Supplying deficiencies of waters.

78. Awards, how distributed in cases of liens or incumbrances.

870. Entry upon lands.-The superintendent of public works may enter on, take possession of and use any lands, structures and waters, the appropriation of which for the use of the canals and the works connected therewith, and for the execution and completion of any repairs or improvements directed by the canal board or legislature to be made, shall in his judgment be necessary. An accurate survey and map of all such lands shall be made by the state engineer and certified by him to be correct, and the superintendent of public works shall indorse thereon or annex thereto a certificate stating that the lands described therein have been appropriated for the use of the canals of the state, and such map, survey and certificate shall be filed in the office of the state engineer. The superintendent of public works shall thereupon serve upon the owner of any real property so appropriated a notice of the filing and the date of filing of such map and survey, and specifically describing that portion of such real property belonging to such owner, which has been so appropriated, and from the time of such service, the entry upon and appropriation by the state of the real property described in such notice, for the uses and purposes of the canals, shall be deemed complete, and such notice shall be conclusive evidence of such entry and appropriation and of the quantity and boundaries of the lands appropriated.

The superintendent may cause duplicates of such notice, with an affidavit of due service thereof on such owner, to be recorded in the books used for recording deeds in the office of the clerk of any county of the state where any of the property described therein may be situated, and the record of such notice and of such proof of service shall be evidence of the due service thereof.

§ 71. Permanent appropriation for repairs. Whenever in the judgment of the superintendent of public works any of the earth structures of the canals of the state should be raised, widened, strengthened or otherwise improved, he may enter upon and permanently appropriate to the use of the state so much of any lands adjacent to the canals as may be necessary to provide earth and gravel for such purposes.

Claims for damages by reason of any such appropriation may

troller, in such sum as the comptroller directs, for the true and faithful performance of his duties as such commissioner. No commissioner shall receive any moneys under the provisions of this article until such undertaking has been executed, and approved and filed in the office of the comptroller. The comptroller may require additional security at any time, and, if the same is not given when required, shall report the fact, with his reason for requiring additional security, to the governor.

§ 86. Powers of single commissioner; books and records.If there is but one commissioner in a county, or but one able or qualified to act, he shall have all the powers of two commissioners of the county until his associate has been appointed and qualified or has become able to act. If the two commissioners of the county disagree with reference to any matter requiring their action, either may apply to the supreme court for direction in the premises, on notice of eight days to his associate, and any order which the court may make on such application shall be observed and complied with by such commissioners. The book or books of mortgages executed to the commissioners when not in use by them shall remain in the clerk's office of the county, and in the city and county of New York in the office of the register. The commissioners shall keep a record of their proceedings in a book to be kept for that purpose, which, when not in use by them, shall be deposited in the clerk's or register's office of the county. During office hours any person may search and examine any book required to be kept by this article.

87. Supervision of existing loan office mortgages.--If such commissioners in each county shall have charge of the mortgages heretofore executed to them or their predecessors in office, on lands in such county, which mortgages shall continue with the same force and effect as if this chapter were not enacted. The rate of interest on such mortagages shall be five per centum per annum. Such commissioners shall collect and receive the interest arising on any such mortgage, and in case of failure to pay such interest when due, may foreclose such mortgage by such actions or proceedings as other mortgages may be foreclosed by their name as "the commissioners for loaning certain moneys of the United States of the county," of which they are respectively commissioners, and they shall be named and described by such name and style in all legal and other proceedings which may be had under the provisions of this act. Such commissioners shall

receive payment of the principal or any part thereof of any such mortgage on lands within their respective counties when tendered and shall satisfy and discharge the same by the execution and acknowledgment of a satisfaction piece in the usual form, which shall be recorded by the county clerk, who shall thereupon write upon the margin of such mortgage, in the book containing the same in his office, a statement to the effect that the same has been discharged and satisfied by such commissioners, giving the date thereof. Such commissioners may allow any such mortgage to remain as a continuing security if all interest due thereon has been paid, and they are satisfied, on due inquiry, that the same is a first lien on the premises described therein, and such premises are worth double the amount paid on the mortgage. If not so satisfied, they shall report the facts to the comptroller, and if directed so to do by him, they shall proceed to foreclose such mortgage and collect the principal and interest due thereon. On or before the first Tuesday in November in each year, the commissioners shall pay to the treasurer of the state the amount of moneys in their hands, received on account of the interest of the moneys in their charge, less the amount which they are entitled to retain for their compensation, costs, disbursements and expenses. Any moneys in the hands of the said commissioners as part of the principal of the said fund, they may, from time to time, loan out to the inhabitants of their respective counties on mortgage on improved lands in the same county. The said mortgage shall contain the usual covenants as to the payment of insurance, interest and taxes. The said commissioners, respectively, before they accept a mortgage on lands for any of said moneys, shall be satisfied that the borrower has a title in fee to such lands, and that the same are free and clear of all incumbrances and are worth double the amount of the sum loaned, exclusive of buildings and of the value of the rent in perpetuity, if any charged thereon; and whenever the said commissioners shall deem it necessary they shall, in addition to the examinations for that purpose hereinafter directed to be made, require the borrower to satisfy them by proper evidence that he possesses an estate in fee in such land free and clear of all incumbrances. The said commissioners shall loan the said moneys in sums not exceeding the sum of two thousand dollars, except in The City of New York, and in that city in sums not exceeding the sum of five thousand dollars; and in the several counties, except in The City

of New York, in sums not under two hundred dollars, and in that city not under five hundred dollars. The interest of the moneys to be loaned as aforesaid, shall be payable annually on the first Tuesday of October in each and every year, and the said moneys shall be loaned on a credit of not exceeding five years, subject, however, to the condition of being called in, the one half on a previous notice of one year, and the remainder on a previous notice of two years. (As amended by chap. 360 of 1898, § 2.)

§ 88. New accounts for parts of premises.-If the owner of mortgaged premises sell a part thereof, the commissioners, on application and with the consent of the mortgagor and such owner shall open an account against the purchaser for his proportionate share of the moneys unpaid on the mortgage, but not for a less sum than one hundred dollars nor unless the part of the mortgaged premises remaining unsold, exclusive of buildings and prior liens, is worth double the residue of the mortgage debt not included in the new account. On full payment of the amount for which a separate account is opened, the commissioners shall discharge the part for which such account was opened by the execution of a release in the usual form, which, when acknowledged, shall be recorded by the county clerk and a minute thereof made upon a margin of the mortgage. Such discharge shall not affect or impair the obligation or liability of the mortgagor.

$ 89. Power of commissioners to maintain actions.—The commissioners may, at any time, before the sale of the mortgaged premises, bring an action to restrain the commission of waste by any person upon the mortgaged premises, or to correct any mistake or omission in the description thereof, or to recover the amount due on a mortgage. At any time after default, and before sale, if any person cuts or removes or injures the timber, fences, buildings or other fixtures, belonging to such mortgaged premises, or threatens so to do they may maintain a like action for damages or an injunction. (As amended by chap. 360 of 1898, §3.)

$ 90. Foreclosure and redemption of loan office mortgages. If the interest due on any such mortgage shall not be paid on the first Tuesday of October of any year, or within twenty-three days thereafter, or the principal or any part thereof shall not be paid when due, the state shall be seized of an absolute estate in fee, in such lands, and the mortgagor, his heirs and assigns, shall be foreclosed and barred of all equity of redemp

tion of the mortgaged premises; but shall be entitled to retain possession thereof, until sale under foreclosure, as herein provided; and shall, at any time before the purchaser at such sale receives his evidences of title on the foreclosure, be entitled to redeem the same by paying to the commissioners the principal unpaid on the mortgage and the interest to the time of redemption, and all the costs and expenses of the foreclosure and sale. On such redemption, the title to the mortgaged premises shall revert to and be vested in the mortgagor, his heirs or assigns. If, before redemption, the purchaser pays to the commissioners, the purchase money, or part thereof, the amount so paid shall be repaid to him. The said commissioners shall, within eight days after the last Wednesday of their attendance as aforesaid, yearly and every year, cause an advertisement to be fixed up at not less than three of the public places of the county where the premises are situated, containing a description of the lands mentioned in the several mortgages foreclosed as aforesaid, and giving notice in such advertisement that on the first Tuesday in February then next, such lands will be sold at the court house of the respective counties where the said lands are situated, at public vendue, to the highest bidder; and the said commissioners shall also cause a copy of such advertisement to be published in at least one of the public newspapers printed in the county, if any such there be, and if there be no newspaper published in such county, then in the nearest paper to said county, successively once in each week, until the day of sale. They shall also serve such advertisement at least fourteen days prior to the time therein specified for the sale, upon the mortgagor, or his personal representatives, or upon his executors or administrators, if any shall have been, at the day of the date of such advertisement, duly appointed by the proceedings of any court, and upon such persons as shall by the records of the office of the county clerk of the county in which said premises or any part thereof are situated, appear to be grantees, lessees or mortgagees of the said premises or any part thereof, and whose conveyance, mortgage or other evidence of right or title shall be upon said records at the date of the first publication of the said advertisement, and upon all persons having a lien or incumbrance upon the said premises or upon any part thereof, by judgment or otherwise, subsequent to such mortgage, and which lien or incumbrance shall, on the day of the date of said advertisement, appear upon the records of the office