Year: 1876

THE ELEVATED RAILWAY AND THE PUBLIC


PARKs-AN OPINION FROM CORPORATION


COUNSEL WHITNEY


meeting of tho Commissioners OF the Sinking Fund
was held yesterday afternoon in the Mayors Office
Mayor wckham, Comptroller Green, Alderman John
Reilly, Recorder Hlckett, and City Chamberlain Tap
pan were present The City Chamberlain presented a
report in which it set forth that SGT s6a 4os Al
in stocks and bonds OF the city OF New York remained
in the sinking fund December I, 1876 for redemp-
tion OF the city debt


THE ELEVATED RAILWAY AND BATTERY PARK.


communication received from Corporation
Counsel Whitney In answer to the following inquiries
submitted by the Commissioners OF the Sinking
Fand.-First, whether the Department OF Parks
nave such control OF public parks to change
tEeir statutory usesY Second, whether the ap-
preparation OF city property for belongs
exclusively TO the Commissioners of the sinking Funds
Third. whether the pillars OF the Elevated Railway
have been illegally erected the pubic park known as
and called the Battery? In the communication occurs
the foowng:-"l In answer to the !lrst inquiry
would say that IN my opinion the Department OF Parks
have no aGhortyI change the uses TO which PARKS
shall be put wherever either specifically impliedy
Tho uses limited by law, and, as matter oil law,
think that wherever property has acquired by tho
city by an exercise It's part o the right OF eminent
domain conferred for the purpose by the State, that
the title to the property is held by the city upon pub
lie trusts Tor definition OF which reference must bo
made In each the purposes Tor which acqusl
ton has been authorized. In answer TO the second
qairy whether the Appropriation OF the city property
belong exclusively
the Commissioners OF the sinking Fund,
should say, mat in my opinion. neither the
Commissioners OF the sinking Funu nor the Park De-
partmcnt have any authority 10 divert property held
upon publc trust from the use &c which u has been
virtually dedicated under tho aw. In answer 10 the
third inquiry whether the pillars ol the Elevated Rail
way have teen Illegally erected IN tho public pnrk
known as and called tho Battery would say that IN
December ast the question was brought 10 my atten
non by the Park department stating that the New
York Elevated Railway Company under ITS charter
ana the privileges that had been conferred upoa them
by the commissioners OF Rapid Transit, appointed
under chapter COG OF the Laws 81 1876 ella med the
right TO construct IT'S railroad across tho north
eastery corner OF tho Battery. AT that time
informed that tho Elevated Railway claimed the
thority TO the Battery under tho provision i'll
the Rapid Transit act winch declared that IN all
cases the streets ucs, places and lands
designated by the said Commissioners aud the right
OF way through the same Tor tho purpose oil railway
or railways hercu us authorized aud provided, shall
be considered aud rs hereby declared 10 be public
USE consistent with the uses tor which the roads,
streets, avenues anu public places are publicly held
But no such corporation shalt have tho
right TO acquire the use or occupancy OF
the puo0c parks or squares N such county
nucs except such may have been designated for tho
routes route Of such railway and except such tenn
porary privileges as tho proper au horites may grant
such corporations facilitate such construction
Upon investigating the iitlo 10 the ands commonly
known as the Battery found that II would be un-
necessary for me either TO pass upon The authority OF
tho railway company, acquired under the Rapid Tran
SIT act, or the question whether the Park Department
could divert property acquired and neld for the pIr
pose o the park Tor any such purpose as that c0ntem
plated by this railroad company"


The communication concludes us lollows:"It is per-
haps proper to say that the question to tho
right Of the Elevated Railway and OF the Park Depart
ments, referred TO IN the preamble communicated 10
me, now before tho Superior Court after having
been claboracly argued by most eminent counsel on
both sides decision will, doubtless, soon be made
upon the subject y