New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1915-07-04
Attitude of Owners on
Condemnation Law
Fully Expressed.
PROTECTION AGAINST
GRADE DAMAGES
Costliness of Numerous Conn.,
missions Emphasized for
Guidance of Delegates.

man AldTsndll VI bHS NOhhiA'NNNN VI
Bill of Rights of the Constitutional
Convention.
II was stated that the purposes OF the
amendment to Article I. Section g.
which says that compensation for TAX
ing private property shall be paid be-
fore such taking, injury or destruction,
was to limit the powers OF municipal
corporations, railroad corporations, ete''
so that compensation must be MADE lot
private property injured or destroyed
as well as for private property taken:
The explanatory notes further said
in part as follows-the language used
is the same as in the constitutions OF
Pennsylvania and Alabama:
The reason for the insertion OF the
clause is this. In many cases OF mu-
nicipal and other Improvements the
grade of the street is changed, or ease
ments are destroyed without any ply
steal or legal taking of property. In
this state there is no right TO damages
for a change of grade at common law,
or under the constitution (Radclif's
Executors V. the Mayor, 1 y. Y, 1851;
but the Legislature has from time to
time, by certain statutes. provided for
COHUeHSdllOH
cases in certain localities. For ex-
ample, in the City of New York owners
of vacant lands in the 23d and oath
Wards of the Borough of The Bronx
could recover the damages 20 their
property by the change of grade OF
certain streets; but such damages were
recoverable in no other part of the city.
The greater New York charter con-
tains provisions for change of grade
damages to buildings in specified cases;
but new situations are constantly aris-
ing not covered by the charter, such
as changes of grade or loss or impair
ment of easements by reason Of sub
ways, transverse roads, bridge APP
prOaches, grade crossing Examinations,
etc. Where damages occur in such
cases the individuals affected have
sought relief from the Legislature by
special acts-without success in the
majority of cases. The situation in tho
City of New York now is that there is
no right TO damages, even where build
lngs erected to an established grade
are injured, unless the Board of Esti-
mate and Apportionment sees fit TO de-
cree that the whole or a portion of the
expense of regulating and grading be
assessed upon property within local
area.
To extend the definition Of the words
private property" so as 10 include any
right which a private person could de-
fend against injury by any other per-
son. This definition, of course, would
be limited to eminent domain and pub
lie improvements IL would not apply
TO any exercise of the police, war or
taxing powers of the state. The limita-
tion is effected by the words "in this
article and by other parts of the con-
text.
This extension of the definition is
necessary because of the decision Of
our Court of Appeals in Sauer V. City
81 $751; Ne" York. $50 NJ w. '7' 20S T. s.
In this case the Court Of Appeals
held that easements of light, air and
access in a public street were private
property, so that the owner could de-
fend against interference with them by
a private corporation such as an ele-
waited railroad, but that they were not
private property within the meaning Of
this part Of the constitution. and that
the owner could not defend against any
impairment or destruction of such
easements by the public for a public
use. In the Sauer case the city con-
structed a viaduct street elevated fifty
five feet above the natural surface Of
155th Street, Manhattan, and extending
from 81. Nicholas Terrace 10 the Gem
trail Bridge over the Harlem River The
viaduct occupied virtually the entire
street width. Sauer had a number Of
buildings on his property. His light
and air were almost entirely cut of,
but he received no damages for the
reason above given, and this case is the
law of the state to-day
AS to proposed amendments to Article
l, Section 7, the explanatory papers
accompanying the amendments read in
part:
"The objects are to do away entirely
with the present provisions authorizing
jury trials in condemnation proceed
ings The issues involved in these pro-
ceedlngs are so complicated and follow
such technical rules that no jury could
do justice to both parties. Indeed. this
method has been deemed so impractical
bic that the Legislature has authorized
its use only in a small class of cases
affecting rural communities.
THE 1914 amendment of this section.
authorizing trials before the Supreme
Court with or without a jury, has been
given effect by legislation at the last
session which provides that the Board
Of Estimate shall elect whether cases
shall be tried before the Supreme
Court or before commissioners. II il
decides on the Supreme Court, the
cases are to be tried at Special Term
thereof.
THE power 10 determine claims run
ming into thousands upon thousands OF
! l. IL
hands Of a single judge, particularly
not in the hands Of one not necessarily
possessing any special knowledge OF
real estate appraising or of this spe-
cial branch of the law. Neither should
these complicated cases be tried in
terms of the Supreme Court, already
crowded with general litigation. The
average street opening case comprises
200 separate parcels. each requiring
separate trial on the issues of damage,
and sometimes on questions Of title.
ITO do away entirely with the pres
ent system of trying cases before
condemnation commission. The abuses
of this system u is, perhaps, unneces-
sary 20 fully enumerate. In many pro-
ceedings commissioners are appointed
who are either incompetent or who are
subservient 10 the wishes Of one party
or the other In very few cases have
specially qualified and independent
commissioners been appointed And the
consequence of this character o. COM
mission has been protracted hearings,
excessive fees, costly errors and grave
injustices 20 property owners, both 20
those who are damaged and 10 those
who are subject 70 assessment
"For these evils 10 - proposed 70
substitute single method in place OF
the three alternative methods which
now exist. BY this method three
Judges, and not single Judge, will
hear and determine issues, and no new