Clark v. Water Commissioners of Amsterdam
| Decision Date | 19 December 1895 |
| Citation | 148 N.Y. 1,42 N.E. 414 |
| Parties | CLARK v. WATER COMMISSIONERS OF AMSTERDAM. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Third department.
Proceeding by George Clark to recover compensation for the taking and appropriating of lands by the water commissioners of Amsterdam, N. Y. From a judgment of the general term (26 N. Y. Supp. 214) reversing an order of the special term modifying and affirming an award of commissioners of appraisal, Clark appeals. Reversed.
For the purpose of enabling the village of Amsterdam to provide the citizens thereof with a supply of water, the legislature passed an act (chapter 101 of the Laws of 1881) giving power to the water commissioners therein provided for to obtain by condemnation the necessary lands, tenements, rights, and property. That act was amended by chapter 197 of the Laws of 1882. By these acts the water commissioners were empowered, before taking possession of any property, to apply to the supreme court, upon notice, for the appointment of commissioners to determine the damages that might be sustained by any owner by reason of the proposed taking of his lands, tenements, hereditaments, rights, or property for the purpose mentioned in the acts referred to. And it was provided in amended section 5 of the act of 1882 that in case the water commissioners failed to make such application to the court ‘before taking and using such lands, tenements, hereditaments, rights or property,’ then, ‘at any time after the commissioners took possession or use of such lands,’ the owner might serve upon the commissioners, and all others interested in the question, 10 days' notice of his intention to apply to the court for the appointment of commissioners of assessment, and upon such application the court was empowered to proceed in the same manner as though the application had been made by the water commissioners. The commissioners of assessment were required to take the oath provided for by the constitution, and were directed to personally examine each parcel of land or other property to be taken or used, and estimate, and report to the court at any term thereof held in said district, the several sums which would be a just compensation to such owners or persons interested, respectively, for the appropriation for the purposes of the act of any property, rights, or privileges that might be so required, or for the title or use of any such property. The land of the applicant in this proceeding was taken and appropriated by the water commissioners under these acts in September, 1882, without any steps having been taken by them to have the amount of compensation due the owner for the taking of such property appraised according to the provisions of the act. The land thus appropriated has remained in the possession of the city of Amesterdam, through its water commissioners, from that time onward; and no proceeding was taken by any one looking towards exacting compensation for the property of the owner taken by the water commissioners until some time in March, 1892,-not quite 10 years from the time when the water commissioners originally took possession of that property. At this time (March, 1892) the owner commenced this proceeding under the acts mentioned, for the purpose of obtaining compensation for his property thus taken by the city for public purposes. Under those acts the owner, upon notice, made application to the court for the appointment of commissioners to appraise the amount of his compensation for property taken and appropriated; and upon a hearing of such application the water commissioners, as one ground of opposition, set up the statute of limitations in bar of any proceeding whatever. The opposition of the city was overruled, the commission was appointed, took evidence, and reported the amount of compensation due the owner for the taking of his property by the water commissioners, which report was affirmed at the special term, and the order entered thereon was reversed by the general term in the third department, and the proceeding dismissed, on the ground that the bar of the statute was a conclusive answer to the applicant's petition. The applicant has appealed to this court.
Andrew J. Nellis, for appellant.
E. Countryman, for respondent.
PECKHAM, J. (after stating the facts).
We think the general term erred in holding that the statute of limitations...
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