New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-08-19
THE USE OF BATTERY PARK
IT CAN EASILY BE DENIED THE ELEVATED
RAILROAD COMPANY.
COUNSEL CLARK SAYS THE POWER
OF GUSHING THE COMPANY RESTS
WITH THE PARK BOARD.

OF GUSHING THE COMPANY RESTS
WITH THE PARK BOARD.
CORPORATION Counsel Clark sent opinion to the
Board of Aldermen yesterday making the important
decision that the power Of ousting the Manhattan
RAILWAY Company from Battery Park rested solely
with the Park Board. Mr.. Carks opinion was
given in reply 10 recent resolution OF the Auer'en
asking 10 be Informed at their meeting OK August 20
swhether there be any legal authorization OF ''e iO
occupancy of portion Of Battery ParR oy inc eeN"o
railway structure, and what steps ought 10 oo '"e
to have such occupancy Terminated ana saiu n"''eiS
Park restored TO the to which was SET apart I'LL"
established"
Mr.. Clark observes that the questions presented
have been already several times ulccuy paSSou
upon by his predecessor in Office, william g whitney,
and also by Judge George p. Andrews "heh OouhSoi
TO the Corporation. Mr.. Whitneys conclusions ap-
pear in three letters dated respectively Oe'e"pei -
1875, January "a 1876, and March 90 1870. bricn.
statoa M whitney decided that the Park Depart
ment had mower to issue to the elevated railway a
revocable license to occupy certain portion Oh ID"
terry Park with their structure
The Park Department acted upon this opinion ana
tened N the elevated railway company permission
for the occupation of portion OF Battery PARK vi
JpIv a. 1879. second license was issued by inc De
or,ro,t NJ Public Parks TO the elevated railway py
which tho latter was allowed TO occupy furtner
portion Of the park
Mr. Clark adds "There can be no doubt ihat 'io Do
rartnent of Public PARKS was given by virtue OF sec
zion of chapter 900 of the laws Of 1874 all the power
and authority previously possessed by the Mayor Alder
men and Commonalty Of the City of New-forh Ill
ncspect to the public parks in the city, and this power
has been continued not only by the charter OF
1873 but also in substance by section ooo o1 inc
Consolidation Act claws of 1882, chapter 4lo).
9The structure Of the elevated road has Deeh
erected in Battery Park on strip OF lanu oo'"ee"
NorE md
with certain exceptions not necessary here 10 De COIL
sdered passed to the corporation under the Dongah
charter Under that charter the city acquired an
absolute ownership in fee simple OF the strip' hoo
coupled with any limitation or trust ana unefeioro
not subject to the restrictions imposed upon Vo use
of land acquired either by eminent DOMAIN vi e''i''
from the State.' - a.,
After showing that il is the difference between the
character of this ownership and that of the ownership
of land in other parks which renders lnappIcapie W
the determination of this question DECISIONS Vi "o
court relating to the right of railways 70 occupy Por
tOns of public parks and places, MT ClaiK refers "
the fact that when he entered upon the ouues VI
Counsel 10 the Corporation he found pending an action
brought by the Manhattan Railway Company against
,Ie park Commissioners to enjoin the latter from
emovine the structures of the company from BATTERY
Park Judge Andrews, the Corporation Couheel "hei
tsis action was begun, wrote letter dated July H.
1889. "This letter. Mr.. Clark says, Estates July
.
of Judce Andrewss letter 1t necessarily results that
g., bis oninion the elevated railway had legal right
nv virue of the license of the Department of Public
parks to the occupation of the portion OF Battery
Park now under discussion; indeed, this egai rishC
must have been apparent to the court or IL wouu o'
have granted the injunction pendente lite restraining
tbe park Commissioners from removing the railway
structure one Of my first official acts was 10 secure
such modification of this injunction that the farh
"Reminiscences are now at perfect liberty to give
NEW and valid notice which would terminate he
occupation of the Battery Park by the elevated rail-
way should they deem such course ADVISABLE Aor
the public interests"
In closing his letter. Mr.. Clark summed up as
follows:
From the foregoing considerations il is my opinion
that should concur in the conclusions reached by
Mr. Whitney and advise you that tho elevated railway
has right TO occupy the portion OF Battery farh
herein above referred to until removed thereirom by
the Department of Public Parks under the power OF
revocation contained in the licenses ssueu " ue ia
way company by that department"
The CORPORATION Counsels opinion was listened 10
aentiyely by the Aldermen and at its close the 1o
lowing resolution after brief discussion, was offered
by Mr.. Flynn:
Whereas The Counsel the Corporation has decided that
the permit given by the Park Board to the Mahhs''ah
Railway Company 10 occupy portion of Battery Park can
only be revoked by Of said Board, therefore be 1t
Resolved That It is the sense Of the Common Council
that said permit be revoked ana we hereoy urge sau
Park Board TO revoke said permit at the earliest possible
moment
The resolution passed with but one dissenting vote
which was given by Alderman George b. Morris, OF che
XIth District.
When the purport of the Corporation Counsel's de-
cision and the subsequent action of the Board OF AL
dermen were communicated to President Gallup OF
the Park Department he smilingly said "That's very
interesting news" L.,
When will the Park Board act on this resolution
Of the Aldermen ~ Mr. Gallup asked.
We have been informed that the Committee OF
One Hundred appointed at the Battery Park mass
meeting desires to be heard before come to a de-
clsion We will not take any action until we have
heard from the committee, and are ready and
willing TO give them hearing the date they may
set hope, however, that they will not come during
this very hot weather"
In reply to question as to how the Park Commits
sioners stand this question, Mr. Gallup said that
they had not discussed Ii as yet in any shape.
How much delay Is there likely TO be after you
have heard from the Committee of One Hundred1'
Il do not see why there should be any delay TO speak
Of his