Charles Barney v. City of New York
Decision Date | 21 March 1904 |
Docket Number | No. 159,159 |
Citation | 48 L.Ed. 737,193 U.S. 430,24 S.Ct. 502 |
Parties | CHARLES T. BARNEY, Appt. , v. CITY OF NEW YORK, The Board of Rapid Transit Railroad Commissioners for the City of New York, et al |
Court | U.S. Supreme Court |
This was a bill to enjoin the city of New York, the board of rapid transit commissioners for New York, John B. McDonald, and the administratrix of Shaler, deceased, from proceeding with the construction of the rapid transit railroad tunnel under Park avenue, New York, adjacent to the premises of Charles T. Barney, 'until the easements appurtenant thereto shall have been acquired according to law and due compensation made therefor to complainant;' and from constructing such railroad otherwise than in accordance with the routes and general plan adopted and approved by the local authorities and by the owners of abutting property, or the appellate division of the supreme court, in lieu thereof.
From the bill it appeared that the rapid transit board had, on behalf of the city, devised routes and general plans, and entered into a contract for the construction of a rapid transit railroad with McDonald, of whom Ira A. Shaler was a sub-contractor, under the rapid transit acts of the state .
Park avenue was one of the streets under which the railroad was authorized to be built, and the routes and general plan of the road were prescribed by the board by resolutions of January 14 and February 4, 1897, which received the assent of the local authorities and of the appellate division of the supreme court in lieu of the consent of the abutting property owners.
Complainant alleged that he 'consented to the construction of the said rapid transit railroad in accordance with the said routes and general plan of construction, and did not oppose the proceedings hereinafter mentioned, which the said board of rapid transit railroad commissioners instituted for the purpose of obtaining the determination of three commissioners appointed by the said appellate division that such rapid transit railroad ought to be constructed and operated; nor did your orator oppose the confirmation of said determination by the said appellate division.'
But complainant averred that the portion of the railroad under Park avenue and in front of his premises was being built 27 feet nearer to his premises than was authorized by the routes and general plan; and that the work was
Complainant further averred
On the bill and affidavits, complainant moved for an injunction pendente lite, and defendants resisted the motion, submitting, in pursuance of stipulation, affidavits filed in their behalf in the case of Huntington v. New York, the same defendants, since brought here, numbered at this term 173, and argued with this case. The opinion in that case (118 Fed. 683) was adopted in this, and the court, of its own motion, under § 5 of the act of March 3, 1875, chap 137 [18 Stat. at L. 472, U. S. Comp. Stat. 1901, p. 511], entered a decree dismissing the bill for want of jurisdiction, and certified that question to this court:
Messrs. Maxwell Evarts and Arthur H. Masten for appellant.
[Argument of Counsel from pages 433-435 intentionally omitted] Messrs. Edward M. Shepard, Pratt A. Brown, and De Lancey Nicoll for appellees.
[Argument of Counsel from pages 435-436 intentionally omitted] Statement by Mr. Chief Justice Fuller:
The jurisdiction of the circuit court was invoked upon the ground that, by the tunnel construction sought to be enjoined, complainant was deprived of his property without due process of law, in violation of the 14th Amendment. But that amendment prohibits deprivation by a state, and here the bill alleged that what was done was without authority and illegal.
The city acts through the rapid transit board, which possesses the powers specifically vested. It is empowered to prescribe the routes and general plan of any proposed rapid transit railroad within the city, and every such plan must 'contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue, or other public place is to be encroached upon and the property abutting thereon affected.' Consents of the municipal authorities and the abutting property owners to construction on the routes and plans adopted must be obtained, and any change in the detailed plans and specifications must accord with the general plan of construction, and, if not, like consents must be obtained to such change.
The bill asserted that the easterly tunnel section under Park avenue was not within the routes and general plan consented to, and that the construction was unauthorized. And this is the view taken by the supreme court of New York. Barney v. Rapid Transit R. Co. 38 Misc. 549, 77 N. Y. Supp. 1083; Barney v. New York, 39 Misc. 719, 80 N. Y. Supp. 972, 83 App. Div. 237, 82 N. Y. Supp. 124.
Thus, the bill on its face proceeded on the theory that the construction of the easterly tunnel section was not only not authorized, but was forbidden by the legislation, and hence was not action by the state of New York within the intent and meaning of the 14th Amendment, and the circuit court was right in dismissing it for want of...
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