The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-26

Dpeue0, VlQmeS
with single house between them.
Try this question Of utility by another standard:
Suppose the ground proposed to be taken for this
street belonged to any private citizen, Mr.. Boorman
Would any one then think the public interests could
be subserved by taking it for the street? Then, Of
course its full value Of 100000 for building lots
would be placed upon it, And would any one, in such
much benefited as to warrant the payment Of such
sum of money? No, sir. It would then be seen
that the opening of the street could not benefit the
public and the price to be paid would be too great
to forward the interest OF the lot specuiators Mr..
Boorman would then object to the taking OF the
lots, upon the ground that it would be taking his
private property for private uses, and the scheme
would be frustrated.
The plain truth Of the matter is simply this: The
persons who claim to open the street think, what
their counsel expresses, that they can take this
churchyard for nothing; that it will not cost cent
by way of assessment, and the opening OF the street
will be very handsome speculation. 1t will open
avenue their lots; give the lots desirable fronts
to make them saleable; and that this great object
can be accomplished for just nothing. The specu-
lation is certain the loss, they think, cannot be a
these lots, that the church stood there? Has the
church deceived them by closing avenue to their
property? That is not pretended all they ask is,
that the church win give away its lands; or, rather
cate the grounds Of this church-that lots, which
have been purchased at low prices, may, in Mr..
Boorman' words, "be materially enhanced In value"
In other words, you are asked to dig up the bones
bold, bad project for which no excuse, no apology
can be offered.
Believe me, sir, popular sentiment is opposed to
the opening of this street. A more unpopular mea-
sure could not be suggested. Submit the question
to the people, and ninetenths of the whole popula-
ton would vote against it. This, Of itself, Is suf-
cient to show that the public interests do not demand
it. am Of those who believe that the instincts
II IL, 70 IN rsU1t that kho
unbiased expression of the press is in regard to it,
And when speak Of the press, allow me to remind
you that our newspapers present true mirror OF
popular sentiment. The history of the world, for a
day, is contained in each issue. speak not now of
cards inserted in the newspapers by the parties in
teresed in this measure, but of editorial articles,
written in newspapers above the faint of suspicion
newspapers which the parties to the controversy
cannot influence much less control, and whose edi-
tors are men too pure to listen to anything but the
dictates of duty. Such for example, as the Com
nrcial advertiser, and the other papers which have
contained editorials on this question. An attempt
has been made to impart sectarian character to
this controversy, but it is signaly out of place.
1t is not war of sects. The unanimous
expression of whatever sect is against the
measure = Catholics, Methodsts, Presbyterians,
Episcopal churches alike protest against it.
Hear what the editor of the Ffeemans Journal says
on the subect:-"But on the score of human de-
cency we protest against needless, and, as far as
rage upon the mortal remains of multitudes of the
honest and respectable dead of this city in its
lier times"-( Freeman's Journal, of I'D February,
1854) And the Citizen, with the warmth and
Irshmen-men illustrious for selfsacrifcing devo-
tion almost unknown to any other single race
thus utters the sentiment of it's large circle OF read
ers -"This attempt to violate the resting place Of
zen, 26th February, 1s54.) have selected these
two newspapers, because no man who has any
knowledge Of the gentlemen by whom they are con-
Quoted will venture to suggest that they could be
influenced by any other motive in penning such ar
tices than to express honest indignation at the
threatened preparation of such an outrage against
the deepseated conviction Of all classes of whatever
lineage, race, or sect.
compliance with the rules Of law in regard to de-
voting property to the use of street. 1t is not
application to take private property for public uses;
to do which it is only necessary to show that public
totally different aspect. Instead of being an appl-
cation to take private property for public uses 1t is
an attempt to take property already dedicated to
public uses for the purpose OF subjecting that public
Speculation. In other words, to take property al
ready soemnly appropriated to the Of the public,
and devote it to the purpose OF enhancing the value
city and them he into Sb SU aoa
the application of few individuals. If, however,
this cemetly is to be regarded as private property,
then it is equally Objectionable; for then it seeks to
the The by
ing the appropriation of private property to public
use, implicitly declares that, for any other use,
private property shall not be taken from one and APP
ton of natural right. If it is not in violation of the
letter of the constitution it is of its spirit and
not be supported" Opinion of the Supreme
Court in the matter OF Albany street, IL Wend.
1909
Tho r;gbt IF eminent domain whatever IL nav he
and shall not stop to define t-has application
to such this for there is no great state or
public necessity requiring it, no public convenience
to be subserved by It; and the existence of either
strated to exist to Justify its seizure in pursuance OF
the right of eminent domain. american Print
Works agt. Lawrence, Oh. j. Greene's Opinion p.
270.)
III. 1t would be violation of the policy Of the
law to open the street. (See Beatty v. Kerrs,
Peters, Rep. $780, Term Rep. 723.l In the case of
Hunter agt. the Trustees of Sandy Hill, reported in
the 9Th vol. Hills Reports, p. 407, Judge Beardsey
said:-
dedication, as the term is used in reference to
this subject the act of devoting or giving property
for some proper object, and in such manner as to
conclude the owner. The law which governs such
cases is anomalous. Under it rights parted with
and acquired in modes andb means unusual and Pc
cular Ordinarily, some conveyance or written in
strument is required to transmit right to real pro-
perty but the law applicable to dedication is differ
by act in pals as well as by deed. 1t is not at all
that the owner should part with the title
which he has; for dedication has respect to the pos
session. and not to the permanent estate. Its effect
is not to deprive party Of title to his lands but to
estop him. while the dedication continues in force,
from asserting that right of exclusive possession
and enjoyment which the owner Of property ordi-
na,ily has Cincinnati against Lessee Of White, 6
Pet Rep. 43l, 43s.) The principle upon which the
estoppel rests is that it would be dishonest, immoral
or indecent and, in some instance even sacrill-
gious to reclaim at pleasure property which has been
solemny devoted to the of the public or in fur
therance Of some charitable or pious object. The
law therefore, will not permit any one thus to break
tions thus excited, and upon which reliance has
been placed. The principle is one of sound NOR
ais and of most obvious equity and is in the strict
est sense part of the law OF the land. 1t Is known
n all courts and nay as well be enforced at law as
n equity.
:" The land in question was dedicated as grave
yard and the ashes Of the dead shall be allowed to
I'll I.k..l. -