The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-25

their Gocks pastured in the public grounds. These
all public grounds at that time, and have ever
since remained So and of course there would be roads
OF some kind from the lower part OF the city
TO these pasture grounds. Probably that was the
only species OF road that then existed. Not long
subsequent TO this period there must have been
public highway from that place, at least to the public
grounds, because the great artery of communication
was through the Bowery, extending along the public
grounds, and over part OF them, through what at
that time was called Chatham road, then occupied as
vineyard, and so extending up Chatham street,
through the Bowery, and thence by devious course
to Kngsbridge, at the upper end of the island.
That was the only ingress from the country to the
city OF New York until the Revol tionary war
Broadway stopped altogether at about the hospital
and was not continued until somewhere about the
Revolution and according to suppression not until
shortly afterwards. Well, then if the Court please
all that these gentlemen say as to their title to this
road is in their complaint that the publc-that they
were the owners of it to the middle of the street.
They state expressly their ownership in fee of the
lands fronting upon the street but when they
TO speak OF the land within the street then they
only speak of their belief and they show upon
what that belief is founded, both in their complaint
as understand it, and certainly in their argument,
by contendng that, upon the faith of certain deci-
sons made in the courts OF this State, lot bounded
upon the public highway IS carried to the middle OF
the street. But how far that idea has foundation
in the strict rules of common law might be
questionable, but it is not either our purpose
nor of any use to US in this argument to
agitate the question. These, however, are the
sole foundations upon which they rest their claim to
that ownership and that title. Now, on the part of
the defendants, in the first place they appeal to the
charter Of Dongan, an extract OF which have read
to the Court and to the charter Of MOntgomerie,
which is confirmation of all the rights, &c. which
were granted by the previous charter Now, then,
if it be true that under the Dutch laws, which pre-
vailed unquestionaby at the time that part of Broad
way was created this legal estate in Broadway, as
well as in all the other streets that had been laid
hvvr- fhnru, laid ont dad
in the Governor, and were transferred by that
charter to the corporation, upon the trust that !
have mentioned, how was it as to the parts of
Broadway beyond that? Now, upon that point We
pretty strong language, and the first is patent,
granted in 100, or l70l or 1902 by the then Cover
nor of the province Of New York. to Trinity Church.
which commenced below Wall street, and extended
to about hundred feet to the south, and the build
ing recently built upon the corner Of Thames street
was at distance OF about four hundred feet that is,
bounded upon the Broadway, showing that Broad
way existed at that time. At that day the inter-
yening property, from the church ground to the
house that have spoken of, was the public burying
ground Of the city, and bounded also upon Broadway
and in 1903 that public buryng ground was trans
ferred to Trinity Church by the corporation, as a
part of the burying ground. Now, it never has been
commended, think nor never could be commended,
that the government, when they made those grants,
If they possessed even any property in Broadway,
passed that property to the church buryng ground
Broadway was then public street. Well, them be-
yond that there occurs space from Thames street
up to Dey street as to which there is no record that
have seen anywhere, indicating how that property
passed from the government to the prOpretors but
from Fulton street, all the way up as high as was
then called the Meadow, composed what was called
the Kings or Dukes Farm and was, also, by Corn
berry, in the reign of Queen Anne, conveyed to
Trinity Church. first by lease and afterwards BY what
we have supposed to have been deed and that grant,
whatever it be- bounds the property npon the public
III, Hal.
grant, andl the Meadow. Now, beyond all doubt,
Broadway was taken from grounds belonging TO the
corporation OF the city, and the opening, beyond all
question, was by cessiOn of the owners First, it
could come into existence in no other way; and,
secondly because there existed act of the Legisa
ture think it was at the time that there could be
exist public street within the city of New York
unless by the actual consent Of the corporation This
was in pursuance Of the policy that has ruled in the
councils OF the city of New York and of the State,
from the time Of its foundation to the present day,
that the legal estate in the streets must be vested in
the corporation in order to enable them to carry into
effect and execute the trust residing in them. And
this brings to that part Of the case to call to the
notice of the Court what follows in the original char
ter. After the grant, to which have directed the
attention of the Court of the legal estate in the streets
that then existed Governor Dongan representatives
go on to confer upon the corporation powers as to
future streets, and which, it seems to me- are very
emphatic; and, if ! mistake not, the law arising
upon them, and interpreting them is that it gave to
the corporation whatever streets were laid out the
streets themselves, and nobody could have an in
terest in them, let them be laid out by whom
they would but the corporaton-that is, mean, a
public trust. 1t may be, and do net stop here to
inquire, though presently shall avert to that more
partcularly-it may be that there may exist, in
some OF the streets which have not been conceded
in ancient times, possibility Of revertor, in case,
by any unforeseen and certainly unexpected calamity
or event this great metropolis should cease to he
city, and again be converted into pasture grounds.
10 only 4trnA
prietor, in the view take, can ever assert right
OF any sort in these streets. The charter says
" with full power license and authority to the said
Mayor Aldermen, and Commonalty, and their sue
cessors for ever to establish, appoint, order, and
direct the establishing making, laying out, ordering,
maintaining and repairing all the streets, lanes,
alleys, highways, water courses ferries and bridges,
IN and through the said city OF New York and Man.
venient for the inhabitants Of the said city and Man
haitian Island aforesaid and for all travellers and
passengers there And, the Court will see this is
full power unqualified in the city government-the
the Common Council to lay out, establish order, and
direct all streets in all future time. Now, Mont
gomerie, in his charter, follows up that idea.
In the interval between 1856, when the first
charter was granted, and 1880, when the
charter OF Montgomerie was granted, nearly
half century had elapsed; and during that time
probably Broadway-and indeed, we know, from
reference to the history Of the times and maps Of
the cy-had then extended itself as far as to about
the hospital, and that building itself grew up and
was established within about twenty-five years subse
quent think. to that period. At this time the power
given by the Montgomere charter is this, and it be-
gins upon page 49, section l6:-"And we do further
for US heirs and SUCCESSORS give grant ratify and
confirm, unto the said Mayor Aldermen, and Com
monaty OF the city Of New York, andther
forever Now call your attention to the fact, to
what body were these powers given-"To the May
or, Aldermen, and Commonalty Of the city Of New
York and their successors forever that the Common
Council Of said city &c. Now, who compose the
Common Council! Why, the Mayor, Aldermen and
Assistant Aldermen, al sitting in one body, the
Mayor having other distinct or distinctive priyi-
lege or existence in that corporation than simply
being the presiding officer and that is not given him
exprey by this charter for he is only there consid
cred as one OF the Common Council, and as a matter
of course not always presiding But it was the Com.
mon Council. There was nothing like the distinc-
tine ion that you find in some Of the private corpora
tons II two or three distinct heads organs, the
destruction Of one Of which would destroy the whole
body This does not cutter into the charter at all;
and the death Of the Mayor would no more terminate