New-York tribune., 1882-02-14
NO ELEVATED ROAD IN BROOKLYN.
TIE GENERAL TERM REFUSES TO CoNFIRM TIL
REPORT OF THE SUPREME COURT COMMISSION


REPORT OF THE SUPREME COURT COMMISSION
IN Favor OF THE CULVER SCHEME.
The General Term of the Supreme Court III
Brooklyn composed of Judges Barnard, Gilbert and
Dykman handed down yesterday decision refusing 10
confirm report of the commission in favor of grant
ing right to the East River Bridge and Coney Island
Steam Transit Company to construct an elevated road IN
brooklyn The route laid out for this corporation, OF
which Andrew X Culver is president. extended from
Full on Ferry and the Brooklyn terminus Of the East
River Bridge principally through Pearl and Wiloughhy-
and Hudson. Fla bush, Fifth aud SevenihaVes 10
the city line Gray esend-aye near TwenticthSt 1he
route laid out by commissioners appointed oy Mayor
Howell In lieu of the consent Of the properly owners
on the line Of the road commission OF the supreme
Court was secured, which after hearing arguments and
testimony decided for the company. The Board OF Al
derInen Of 1881 confirmed the route Of the company.
In refusing to confirm the report OF the commission
each Of he General Term Judges gives separate opih
ion all n the view that there should be no
rpd transit without compensation property owners
chef Justice Barnard says that ii must be assumed that
in some cases much damage viii he suffered by abuttng
owners and that many persons believe they will he u
ned by the road while by the act under which The road
is to be- built there is provision for compensation No
magnitude Of public benefit from the road will compen
injustice done by partial disturbance ia the
vaIne Of any property without compensation. The
amount awarded should be first paid to
The owners as required when railroads are
built under the general act. There should be no taking
frf and uavmcn af crward as each owner shall h. able
force TIE nent against the opposition Oi te
JnGse Gilbert treats ar length of the damage to prop
erfy ret TAX N NV the ra lrnad company which may be
injured hy he road. He says: have Il" hcSilalYn IN
declaring my opinion ha 20 mans property Should DE
up ration Elevated ralrOld, excerpt upon thc con
diion that compensation for al damages sustained by
hlu thereby should be made Ample ot trou"h against
direct inyasions OF the rgs OF brlyate prep P Ty o Is
aforde by the fundamental law u canno, .r Iaken
for pubic without compensation. Bnt properly
pOraiion do, not take in "a tecnmC;, sense may Ds
uiurlOusly att ced by the railroad The exclusion Of
gh the dnus of oppressive UdOTs, smoke d steam,
h disturbance creaied ny the ratilAg 81 the cars ara
the Obstr 81 ioG OF lc atmosphere, tchd 10 impair me
value Of property. hr iact is md sputabe tna III many
ins ances cl Vat"d railroads op r. cd by steam power
have jun d p Op ry which has not been taken or ~
thereon Th tyd nee he Or us ,hows that smil cou
sequences will follow the construction aud OPERATION OF
ing injuries uhdes rVDg of compensation is pr
fec,Iy PIP trent, any amonnt pnnlo bentht ne
dee ned Just cJmpcnSa ION therefor Ana yet IL i sl
90, ID question Whr thcF owners Of properly l9uil
ousy Affected but not uy taken by railroad cor
referred to- That question hOud b set II rest before
railroad corporations are permitted TO nict f4r'her N
iuies upon IrVate proper y. Their nght 20 construct
waited railroads streets should be made dependent
upon then providing suitable ana su'HcHh' indemnify
aJutug against any damages Inch they may
hen l,roy,son should be- ina iG by law for such
ind nuity In other mOle Unll such indemnify IL
"A suItaue form shall nave been provided, 'he report
OIgct not to be cunhrm-d.'
Judge Dykmau laaes ground that the construction
Of railroad without compensation II cOhHsc"toh oi
property, and publ siy for hls ~ TINS ease -
The need Ot protoc ing private property Is as
great as the need OF cleNal q roads HIS corp laIn7
includn. the ,levated railroads. nave Cady sufficient
control without the aid vi TIC courts to ugutcn
OT extend Their grasp.
II is asserted tna uy arecent decsin OF the Court Of
App,as 40 APP al from tula determination Of the Gen
eIal possible, Is based upon matters Ol ul-
cret on aud noj upOl legal points TINS ends all Tie
for the pr sent to place elevated roads III the
CHEF sree of Brookl,n lie onI two proposed meta
Is OF RAPID transit in Brooklyn being pushed ac
lively Csde from tne run Elevated Road which II be
ug cOnsti iucted in SIDE ntrcets for ground
IOtds-One under Washington ana FultJn-ss. and Fiat
bush-ave from the bliHge To Fltbush and tue other
under under private property between
hird and ruurhVes., from SOuth Ferry ~ FClt iiIn
Both incluae TIE depression below the surface oi
fine Long lslad i.alt toad in Atlant The scheme
iur "a road to the foot o tlat tnOrOugfdre SAID by
some to include tunnel under the East River 10 tho
Battery.