68 N.Y. 167, In re City of Buffalo

Citation68 N.Y. 167
Party NameIN THE MATTER OF THE APPLICATION OF THE CITY OF BUFFALO FOR THE APPOINTMENT OF COMMISSIONERS TO APPRAISE CERTAIN LANDS.
Case DateJanuary 16, 1877
CourtNew York Court of Appeals

Page 167

68 N.Y. 167

IN THE MATTER OF THE APPLICATION OF THE CITY OF BUFFALO FOR THE APPOINTMENT OF COMMISSIONERS TO APPRAISE CERTAIN LANDS.

New York Court of Appeal

January 16, 1877

Argued Dec. 19, 1876.

Page 168

[Copyrighted Material Omitted]

Page 169

COUNSEL

E. C. Sprague for the appellants. The General Term erred in refusing to consider whether or not the common council had power to condemn the lands in question. (Laws 1870, chap. 519, tit. 8; Han. F. Ins. Co. v. Tomlinson, 58 N.Y. 215; N.Y. C. and H. R. R. R. Co. v. Cunningham, 13 Alb. L. J., 145; In re R. and S. R. R. Co. v. Davis, 43 N.Y. 137, 147.) The city had no power to take the lands of the railroad companies in the manner proposed. ( Heath v. Barmore, 50 N.Y. 302; Bklyn. Pk. Comrs. v. Armstrong, 45 Id., 234; Inhabitants of Springfield v. Conn. R. R. Co., 4 Cush., 63; M. and H. R. R. R. Co. v. Artcher, 6 Paige, 83; In re B. and A. R. R. Co., 53 N.Y. 574, 579; Kyle v. Aub. R. R. Co., 2 Barb. Ch., 489, 497; In re U. C. and S. V. R. R. Co., 56 Barb., 456; Hill v. M. V. R. R. Co., 3 Seld., 152; Alb. N. R. R. Co. v. Brownell, 24 N.Y. 345; Babcock v. City of Buffalo, 56 Id., 268; Lodies' Case, 2 Salk., 458; King v. Pappinau, 1 Str., 686; 2 Roll. Abr., 84; Washb. on Easements, 582, 583; Rogers v. Barker, 31 Barb., 451; Clark v. Mayor of Syracuse, 13 Id., 32; Boom v. City of Utica, 2 Id., 104; Ely v. Suprs. Nia. Co., 36 N.Y. 300; Mayor of Hudson v. Thorne, 7 Paige, 261; Colchester v. Brook, 53 E. C. L. R., 339; Denies v. Petley, 69 Id., 275; De Bow v. People, 1 Den., 9; 1 Dil. on Corp. [ 2d ed.], 173, § § 55, 174, 175.) The action of the city is irregular for the reason that it does not appear that the entire land is to be taken for any public use for which the city charter authorizes lands to be taken. (2 Dil. on Mun. Corp. [ 2d ed.], 556, 557, § § 457, 458; Dunn v. Charleston, Harper [S. C. L. R.], 189; People v. Corp. of Albany, 11 Wend., 539; Embury v. Conner, 3 N.Y. , 511; Baltimore v. Clunet, 23 Md., 449.)

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Frank R. Perkins for the respondent. The city had authority to take the lands for the purpose set forth in the petition. (2 Laws 1870, p. 1199, tit. 8, § 1; 2 Dil. on Corp., 566, § § 460, 465, 566; People v. Smith, 21 N.Y. 597; Peck v. Mallums, 10 Id., 509; 1 Redf. on R. R. Laws, 256; Rogers v. Bradshaw, 20 J. R., 735; Laws 1858, chap. 62, p. 86; People v. Kerr, 27 N.Y. 188; Boston-water Power Co. v. B. and W. R. R. Co., 23 Pick., 360; In re Fowler, 53 N.Y. 60.)

FOLGER, J.

This case has already been before us. It then appeared from the certificate of the learned judges at General Term, that that learned court had not passed upon the important questions of law and of fact presented. The judgment of the General Term was then put solely upon the ground, that the Special Term had no power to inquire into aught but the mere regularity of the municipal proceedings, and as to who should be commissioners. Therein, as we conceived, the General Term was in error. It was the sole error which the record then presented. It was all that this court could then properly review or determine. We could not say, but that when the General Term should exercise the power which it had, but under a mistaken notion did not then use, it would determine the facts and properly declare the law applicable to them. In the discharge of its whole duty, this court corrected the sole error then presented, and the case was sent back for a consideration by that learned court of the facts and the legal questions arising.

The case now comes up again. And we may now proceed upon the ground that the General Term has looked into the facts, and considered the questions of law involved. The opinion delivered is ample, explicit and quite satisfactory, in its declarations that the General Term has exercised its powers, and that the judgment of the Special Term has been reviewed upon the merits and the law. We may now look into the whole case.

The lands in question are held or occupied by the several railroad corporations, in different rights, for the public purposes

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which are served by their special instrumentality. It is true, that at the same time, and in greater degree perhaps, the private interests of the corporators, or of those who manage the corporations, are also advanced. But...

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99 practice notes
  • 41 P. 232 (Mont. 1895), 519, Butte, A. & P. Ry. Co. v. Montana U. Ry. Co.
    • United States
    • Montana Supreme Court of Montana
    • July 29, 1895
    ...as the authority extends, either in terms expressed by the law itself, or by implication clear and satisfactory. In re City of Buffalo, 68 N.Y. 167; Suth. St. Const. § 388; Mills, Em. Dom. § 46. In our opinion, the testimony in this case shows that the particular location of respondent's ra......
  • 1 Misc.3d 907(A), 2003-51553, Corrini v. Village of Scarsdale
    • United States
    • December 23, 2003
    ...Mail and Newspaper Transportation Co. v. Shea, 30 A.D. 266; quoting Railroad Co. V. Williamson, 91 N.Y.2d 552 and In re City of Buffalo, 68 N.Y. 167 [" 'The general principle that land once taken and appropriated as a public use, pursuant to law, under the right of eminent domain, cann......
  • 111 N.Y. 588, In re Metropolitan Transit Co.
    • United States
    • New York New York Court of Appeals
    • January 15, 1889
    ...the general laws of the state. ( Lahr v. Met. El. R. R. Co., 104 N.Y. 268; Mills on Eminent Domain [2d ed., 1888] § 46; In re Buffalo, 68 N.Y. 167-171; P. P. & C. I. R. R. Co. v. Williamson, 91 id. 552-561; Ex parte Manhattan Co., 22 Wend. 633; Mayor, etc., v. B., etc., R. R. Co., 97 N.......
  • 162 N.Y. 202, Lewis v. New York & Harlem Railroad Co.
    • United States
    • New York New York Court of Appeals
    • February 27, 1900
    ...etc., v. S. A. R. R. Co., 32 N.Y. 261; People v. O'Brien, 111 N.Y. 1; Mills on Em. Dom. [2d ed.] § § 46, 47; Matter of City of Buffalo, 68 N.Y. 167; People ex rel. v. N.Y. C. & H. R. R. R. Co., 156 N.Y. 570.) Any damage caused to the plaintiff's premises by the operation of trains on th......
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99 cases
  • 41 P. 232 (Mont. 1895), 519, Butte, A. & P. Ry. Co. v. Montana U. Ry. Co.
    • United States
    • Montana Supreme Court of Montana
    • July 29, 1895
    ...as the authority extends, either in terms expressed by the law itself, or by implication clear and satisfactory. In re City of Buffalo, 68 N.Y. 167; Suth. St. Const. § 388; Mills, Em. Dom. § 46. In our opinion, the testimony in this case shows that the particular location of respondent's ra......
  • 1 Misc.3d 907(A), 2003-51553, Corrini v. Village of Scarsdale
    • United States
    • December 23, 2003
    ...Mail and Newspaper Transportation Co. v. Shea, 30 A.D. 266; quoting Railroad Co. V. Williamson, 91 N.Y.2d 552 and In re City of Buffalo, 68 N.Y. 167 [" 'The general principle that land once taken and appropriated as a public use, pursuant to law, under the right of eminent domain, cann......
  • 111 N.Y. 588, In re Metropolitan Transit Co.
    • United States
    • New York New York Court of Appeals
    • January 15, 1889
    ...the general laws of the state. ( Lahr v. Met. El. R. R. Co., 104 N.Y. 268; Mills on Eminent Domain [2d ed., 1888] § 46; In re Buffalo, 68 N.Y. 167-171; P. P. & C. I. R. R. Co. v. Williamson, 91 id. 552-561; Ex parte Manhattan Co., 22 Wend. 633; Mayor, etc., v. B., etc., R. R. Co., 97 N.......
  • 162 N.Y. 202, Lewis v. New York & Harlem Railroad Co.
    • United States
    • New York New York Court of Appeals
    • February 27, 1900
    ...etc., v. S. A. R. R. Co., 32 N.Y. 261; People v. O'Brien, 111 N.Y. 1; Mills on Em. Dom. [2d ed.] § § 46, 47; Matter of City of Buffalo, 68 N.Y. 167; People ex rel. v. N.Y. C. & H. R. R. R. Co., 156 N.Y. 570.) Any damage caused to the plaintiff's premises by the operation of trains on th......
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