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

those private rights for passage over the grounds
which were converted into streets and that an act
existed which he refers TO- under which the right Of
soil for the purpose of streets could be obtained upon
making proper compensation; and he gives various
instances by which it appears, from the records
existing OF those times, where application made
for, and compensation given to- individuals for those
purposes. Surprising, therefore, the grounds to
make the streets to be acquired by the corporation
and the streets established, either by cessons of the
individuals, or by purchase, or, if you please by the
operation OF dedication," that rs, the owner OF
the property forming the street and opening it in
any Of these ways, it seems to me that the title
TO the property necessarily vested in the COR
poration of the city-the legal estate-for all the
purposes Of the trust for which this street was Open
ed and created What is the meaning, and what is
the legal sense, of power to order establish and
directf' My associate counsel has referred to the
constitution of the United States for explanation
of the term establish and for explanation of the
term regulate which is equivalent to order and
appoint-in both it being interpreted to mean
that the whole subject, the whole power it, and
the right and interest in it, is vested in the body who
has this power. To be sure, paramount law steps
in there according to modern conceptions of the
very highest obligations, and no doubt respected in
that day, that private property could not be taken
without compensation to the parties injured; and
hence we are to conclude and infer, that wherever
streets laid out and placed thus under the con-
troll and in the power of the corporation that that
previous condition complied with, and that all
those streets, wherever compensation was required
and wherever the owners did not voluntarily and
gratutousy concede the ground necessary for the
street to the public that they received proper equ
valent for the property taken for that purpose This
might leave it is true in the original owners this posi-
becontingent rightth have spoken ofthis residu
airy interest-which in late case, the SupremeCourt
and believe the Court of Errors, have both decided
to be merely nominal, with still rcvertng interest
that if the street ceased altogether to be street
that then the ground itself might revert to the org
nal owners 1t has been commended that party
that
right; but that is all the right he reserves; for he
serves no power during the time that the street
tinues-no interest, no right and no control over It,
1t would be incompatible with the " dedication
the Court what would be the condition Of this great
city, if every individual was vested with the power
Of bringing actions Of trespass and ejectment for
every interruption or obstruction placed IN the city
opposite to his dwelling? The right to institute such
actions was never contended for; but, the contra
ry all distractions to the Streets and all ntrusions
upon them, have always been redressed, prevented,
and punished, by actions in the name ofthe Corpora
ton or departments to which that particular subject
was referred; and upon the same idea that these
streets vested in the public the act of 93 Of the
State was passed, comforting upon the Corporation
all the right that the State might have as being the
great public, in any part of the streets of the
city Of New York; and when the public
the Legislature-came to devise system for laying
out all that part of the city into streets and avenues
which then only existed in fields, the same policy
was pursued: ana 4 system was ESTABLISHED III tnc
first place for the laying out of the streets, and that
was accomplished under the act of 1907; and subse-
quenty to that act the general law establishing the
mode and system for opening the streets thus estab-
lished by the previous act and in both those acts,
having distinctly in view the placing Of streets thus
to be formed and laid out in the corporation, the ow
ners were to be paid for the land taken to form those
streets themselves contributing, however their just
proportion by means Of assessment. And that, sir,
think, puts entire end to all questions about the
title to the streets in all that part of Broadway which
lies to the north, / think, Of Fourth street. The
whole of Broadway, to the north of Fourth street,
with the exception of that part OF it between Fourth
and, think about Eighth street, formerly Arch
street, has been opened by the system to which |
have referred and the title of course vested in the
corporation. All of Broadway that has been opened
beyond Arch street, between the present Eighth and
Fourth streets must have been opened under the
arrangement Between Fourth and Eighth streets,
Broadway has existed as an open street, the ground
through which it then having been seized to the
then owners believe, without the least doubt to the
corporation the purpose Well If the Court please,
in corroboraton Of those views to the ownership
the vestng the residence of the legal title to the
grounds within this street, let us look to the uses
that have been made of it from time immemorial.
Has any owner Of any lot fronting upon Broadway
or, ! may say, upon any other street in this city,
ever pretended to claim or exert any ownership or
any exercise of any act Of superior title to the
grounds within Broadway, or within any street OF
this city, Such thing is unheard Of For who
have exercised these powers? The Common Council
of the city Of New York. from the foundation of the
city to the present hour Anterior the adoption of
the recent systems in this city for supplying it with
water and for cxtingsbng fires, it was the habitual
practice of the Common Council to establish in all
parts Oh the city, and in Broadway among the rest,
wherever they deemed it necessary or convenient,
wells and pumps. You found pump at every third
or fourth corner. Who put those pumps there!
The corporation. Some of them were public
pumps which the citizens had no right to APP
proach for the purpose of taking the water
because they were the public pumps for the use OF
the fire department of that day. Some of them were
established for the use and convenience of the citi-
Hens and, in many instances the Court will find If
they think it necessary, by looking at the records of
the city, the applications Of neighborhoods to the
Common Council TO establish pump at such place
for their convenience directly in the street. and gene
rally near the side walk but in point Of fact upon
portion of what was then the curb way. The pump
in front of the old City Hall it will be remembered,
was famous for its fine water, and stood there
haitian Company undertook to supply this city
with pure and wholesome water. Not only did
the corporation do this, but for the use OF the
fire department they erected engine houses, built
upon the very streets, for the accommodation OF
the engines used in extnguishng fires To be sure,
they placed them in such positions in those streets
that they did not into rfere with the public traveller
They did not place them in the centre or in an ncon
yenient place but still they were within the bounds
OF the streets and the streets used for that pur
pose Again. the system OF vaults for the use OF pri-
vate houses had its origin in those days, though
not to the extent that has since come into USE
and every Of those vaults according to the doctrine
upon the other side would be an encroachment upon
the private property of the individual and in every
instance in which an individual applied for vault,
he applied to power that had right to license it,
and he himself would have had full power to have
gone and undermined the street and created vault
on his own account. IL is said that he could not
break the pavement, because the public have the use
OF the surface and the regulation of the surface OF
the street, but the owner, il he were the owner OF the
street, having obtained permission to remove the
pavement, would possess the right to everything
underneath, and could make vault upon his own
ground, without any license or permission from the
corporation. Would that be tolerated? What sort
Of system should we have in this ty if every person
could go and make vault as deep as be pleased,
or wide as he pleased, extending to the centre OF
the street, Where would be the gaspipes to be laid
down. Where would be your pipes for Croton water
in all directions Of the city? Why, all would he
broken up by this assertion of private right TO all
parts Of the street. from the centre OF the earb to
the surface save only the surface itself still