The New York herald., 1871-11-14
TEE RIVERSIDE PARK.
Legal Controversy Over the Awards
and Assessments.
Appeal from the Confirmation
Of the Report.
Argument Before the Supreme
Court, General Term.

In the Supreme Court General Term. Judges In.
graham and Card0zo on the BENCH the subject OF
the Riverside Park was up for argument yesterday
on the appeals from the confirmation of the report
OF the Commissioners Of Estimate and Assessment
The history of the case in connection with prelim-
mary proceedings in the courts, has been too fire.
quently ana fully given In the HERALD to require
recapitulatlon. One thing seems very certain and
that is that If the matter Is kept much longer In
the courts the project win never get beyond its
present incepuye progress-a mere park OIL paper.
First came lengthy argument on behalf Of
PRIVATE PROPERTY OWNERS
by Mr.. Anderson. He urged in general terms that
there is errcr in assessing lots on north side OF
Seventy-frst street for benefit In larger sum than
Is assessed upon the lots on the s0uthery side OF
same street, that lands covered by water cannot be
assessed Tor benefit under the act, and that such
property is incapable OF receiving benefit from the
Improvement and therefore Is not assessable. He
also enlarged at length upon tho act OF the Legsla
ture providing for the Park, and claimed that the
same is unconstitutional. When he had finished
MIR. OGorman, Counsel to the Corporation, replied In
THE INTEREST OF THE CITY.
He contended first that the act is not obnoxious
to any constitutional objection; and, secondly that
It is expressly provided in the constitution Of the
State that the damsges consequent upon the taking
OF private property for public use may be assessed
by commissioners, not less than three In number,
appointed by q court of record AS TO alleged error
In assessing for benefit the lands under water ne
urged that the land under water is valuable, and
that Its value IS capable OF being enhanced by any
of the causes that contribute TO the prosperity OF
statute empowers the Commissioners to assess the
property which they deem TO be benefited to the
tent TO which they deem such property 20 be bene.
nted. They determine the amount OF the benefit
accrl.1ng TO each parcel OF land assessed by
alteration Of its proximity to the proposed Park and
Boulevard, and all the other circumstances which
tend TO confer advantage The assessment levied by
the Commissioners embodles and expresses their
assessed from the Improvement. The Judgment Of
the commissioners is conclusive as to the fact
and amount OF benefit; unless some erroneous
case no error OF principle can be dscerned. The
Commissioners IN the exercise OF their discretion,
objectors think is not benefited. They have as.
sesscd property on the northerly side OF Seventy
sae Of the sme On 70 line e
same persons But these facts, he insisted, 90 not
present any question OF principle the assessments
Commissioners, exercised In view OF all the facts
upon which their Judgment is based. and with
that judgment the Court VIII not interfere.
RAILROAD INTERESTS.
At the close OF Mr.. O'Gorman's argument ex-Julge
Strong presented the case of the New York Central
aud Hudson River Railroad Company, which Is
among The appellants. He insisted that there was
no BY law 9 take o and the
lures OF this railroad company for the purposes OF
the park in question He insisted that II the Legls-
lature mas power TO d1vest the title OF a railroad
company to its roadway and fixtures, after the rail-
road has been constructed and Is In opera
other public use, the power is limited to the direct
action OF the Legislature ITSELF declaring the appro
p1aon OF tne parucular premises s ana cannot he
wolves In its exercise an interference with the fran
chse Of the railroad company more or less material
according to the circumstances. and may extend to
the entire partial destruction OF the franchise,
AID that In this the taking or the portion OF
the roadway IN question would substantially deprive
the company OF It's franchise to that extent ana
otherwise greatly impair It's value. Such power
ne claimed exists In the LEGISLATURE only In
cases where, In the grant OF the franchise power
served power is OF q wholly legislative character
further, If the power could be delegated it could
not be given to the Commissioners OF the Central
%o y sas o aRa Re se
9ei YcrP nc Of ns city 9 New
orders OF confirmation should be modified by the
entry OF an order correcting the same ny inserting
in each the following clause, excepting and eX-
cludlng from such confirmation all awards aud as
sessments Tor and upon the roadway OF the railroad
company, and as to all such awards and assess
ents the report Of said commissioners is disproved
MR. o'eoRMAY's REPLY.
TO the above argument Mr. OGorman made an cx-
tended reply. He contendcd that although the lands
acquired ny the railroad company Tor the purposes OF
their road by the exercise OF the power or eminent
railroad, yet the LEGISLATURE has power to direct
the APPROPRIATION OF the same lands 10 another pub
lie use. The power or eminent domain Is o sove-
reign power, and being sovereign power 1t ever
exists In the people. II cannot be limited, abrogated,
spen, or exhausted. II the proposition OF
the gentleman preceding him was true, he claimed
that IT follows that when land has once been taken
for public use the power OF tile people is spent,
and those lands are forever beyoEd the reach OF the
sovereign power, whatever be the pubic necessity.
The lands Of the railroad company were acquired
by exercise OF the power OF eminent domain for
public use ana surely then, the people
controlling all public uses by sovereign power
may direct change OF the use TO another
public use. II could not be urged, he contended
that the obligation OF a contract IL impaired bv
taxing the land Of the railroad company, or that
vested rights are disregarded. COMPENSATION Is
made TO the company for all the damage sustained
by dvertng the land 10 use as park or boulevard.
Mr.. Strong made a brief re Ioinder, after which
the Court adjourned to this morning to hear con-
tinualion OF the argument on behalf Of 9th er
appellants