New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-10-18

|
iie nse Without compensation Thus understood, w
To- criticism and furnishes no support the claim now
made that the owner whose lands were taken and are
ngbe street forever has no standing Court TO insist
that the trr shall be kept aud that the streets snail not
THIS precise question was before tho Supreme Court OF
the United states IN he case o. fs n yoppa
tie Court says Attempt ia also made 10 Justify the
acts OF the Respondents tthc railroad COMPANY as g,u
tees Of the State upon the ground That the cOpalnt
In defeating the premises to the public rs street
lcYee ana landing. parted With all his title TO tne same
nnd thai the entire title rested In fec Ia the ate re
spOndents rely FOR that purpose upon the sloSe Oh th
that PROVISION as assumed BY the respondents, cor
" is defence TO the suit bee lss 49, neVtho
trust inpiedy il not expressig designated by the act
OF tho party making the dedcation. They could not
nor could the ate convey to the respondents any renC
disregard the trust t. appropriate the premises TO
any purpose Which would render vaueesS the adjoining
| real estate OF the complainant"
TIE CONSENT OF THE OWNER OR COMPENSATION
| NECESSARY.
That this trust created by the act OF sl3was intended
TO be for the benefit OF the abutng owner as well as Tor
hopubc cannot doubt City property haslitte or no
value disconnected from the streets upon which 1t abus
The opening of city street makes the property AUDITING
thereon available for purposes OF trade and commerce.
aud greatly enhances its value The act OF proceeds
upon the assumption Of this well known fact and the
damages sustained by OF the taking assessed
in Of the trust assumed by the public that such
lands were to be kept as open public streets forever
| Toe public did to take the lands
in fee simple absolute, but took and paid for lesser
tate and pursuance of the theory OF the statute that
the abuting owner had special interest In the street,
cost Of the lands Immediately assessed back
npon the admitting property All the owner has ever re-
ceyed lands taken under this act is the benefit
eccrung TO his abung property By reason OF me trust
for which tho lands held. Having surrendered his
land in consideration OF the trust assumed by the public
II the trust can now be abr0gated aud the streets sur
rendered the and purposes of railroad corpora
tOn IL follows by authorities that private property may
be taken for public against the consent OF the owner
and without compensation.
We nave examined the other cited by tho learned
counsel for the respondent, and in Of them do we
find authority for the claim here made The case OF the
transportation company agt Chicago t09 u =. r. $50
necessarily done in the extension Of CITY street The
interruption was temporary ceasing with the compile
ton Of the work. This decided upon the elemen
ary principle that the public have right TO make such
use OF the land taken for street as may be deemed
for its proper construction repair mantle
nance. Within tnis power included the rgHt Tx the
grade OF the street. and to change such grade from time
whether tho grade DO elevated depressed ii is stu
pn5c street. to which the public have tho right OF free
access, subject to such police regulations as may be
adopted by the public authority having charge and
Inc argument has been pressed upon our attention
with great ability that as railroads, like streets, arc in
tended to facilitate trade ana commerce, and lands
taken for either taken for public the Legislature
may III Its discretion appropriate the public srees OF
cities to the railroad corporations and this with
out reference to the form OF their structure
the extent OF the injury wrought upon property abut
ting thereon. THIS Is startling proposition and one
Wei calculated to ill the owners OF suca property with
alarm 1t cannot be that the vast property abutng on
the streets OF our great cities Is held by 50
feeble This court has repeatedly held that
such rule has 10 application where the abuttng own
ers own tue fee OF the OF the street and We are Of
opinion that in where the public has taken the fee
but in trust to be used ~ public street. no structure
upon the street can be authorized il inconsistent
with the continued use OF the same as an open public
street.
Tho obligation preserve 1t open stree. in
the written In ple statute under which the
lands taken, and which not be violated by the
exercise OF any legislative discretion. What
ever force tho argument may have
applied to railroads built upoi the surface
of the street without change Of grade, and where the
road is constructed that the public Is not excluded
from any part OF the street thereof has no force wnen
applied 70 structure Ike that authorized in the present
case The answer to the argument is that the lands
taken for particular puoc use cannot be Appropriated
the authority attempted to be conferred by the
Legislature upon the defendant TO cake exclusive posses
sion OF portions OF tue public street aud to erect series
OF iron columns on either side thereof upon which gu
perslrcture is to be erected spanning the street. and
ng the roadway at fifteen feet above the surface thus
excluding light aud air from the adjoining premises. Is
attempt To apprO rate the street 10 u.s. entirely In
the land in question: violates the covenant OF the city
lands acquires under the Act Of 1913 violates ns trust
for WHOM slch Lands are hed for public use.
The arguin snt drawn from the great ben 1t which
these roads conferred upon tho City OF New York
9 4aSs 9 M oe IL No ne roads lave
IN" City OF Now-York and have greatly
promoted the convenience OF its citizens; but
the burden Of so great public Improvement cannot
ightfully upon few OF its ctlzens b. appropri
alIng their property the public without cOmpen
saon Tue inhibition found IN the Constitution against
the right OF the sovereign 20 appropriate private prop
erty to pubic without making compensation there
Intended all cZcHs alike against being
compelled to contribute uhellaly 20 te phDHe Drle
We are OF opinion tat the law under which the defend
ant rs ncorpOra 81 authorizes tn acquire such prop
ery rs may he necessary for its uses and purposes upon
making compensation therefor Tnis was substantially
determined IN the matter Of the New-fork Elevated
Road 20 y. \. X.
THE CONCLUSIONS BRIEFLY STATED.
We Lave reached in this the following cOnclu-
sions:
Firs-That the plaintiff, by force OF the gran OF tho
city 10 his granOrs, right privilege IN tr0ntst
which entities hiu to nave the same KEPT cpeI aud con
tnucd pubic street lCr Cue dement, oG ns abuttng
Stcgnd-Irat this right or privilege constitutes an
easement in the bed OF the street winch attaches to
the ubu,ting property OF the plaintiff ana constitutes
private property within the meaning Oh the constitution
Mica he be deprived without compensation.
Tdtrd-Ihnt 5uCn structure aS the Court found the
defendant was about Fronts, and which 1t
has erected is inconsistent with the use Of Front
- a public street.
Folril--Ihat the plaintiffs property has been taken
and appropra ted by the defendant for public USE with
out com pensatOn being made therefor.
Fifth-lhat the defendants acts are unlawful and as
tho structure Is permanent In It's character, and, II
tinuug injury upon the plaintiff he has the right TO
restrain erection and continuance Of the road Dy in
junction.
Sirt-Tnat the statutes under which the defendant is
organized authorize 1t To acquire such property
De necessary for It's construction aud operation by tie
exercise OF the night oil eminent domain.
Sercuit-n view OF the serious consequences to the
defendant tnink no Injunction prohibiting the CON
OF road IN EUOntSt., should be
issued until defendant has had reasonable time after
this decision to acquircthe plaintiffs property by agree
lnont BY proceedings to condemn the same.
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ALTERED ACCOUNT BOOKS IN NEUARK.
AT a meeting of the Newark Common Council last
evening Mayor Lang sent in message with the
Of Isa,. A I.vyi mt