Holden v. City of New York
| Decision Date | 30 December 1959 |
| Parties | , 164 N.E.2d 728 James HOLDEN et al., Appellants, v. CITY OF NEW YORK, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Landowners, who were successors in ownership of a large tract of land, a portion of which was acquired by the City of New York for the Catskill Aqueduct pursuant to the Water Supply Act, brought action against the City of New York for declaration that landowners had right to install utility services such as water pipes and cables containing electric wires and telephone wires under surface of ground constituting a right of way subject to which the City of New York had acquired fee title to certain land in the Catskill Aqueduct condemnation proceeding.
The Supreme Court, Westchester County, Elbert T. Gallagher, J., after a non-jury trial, rendered judgment for the landowners, and the City of New York appealed.
The Appellate Division reversed the judgment, dismissed the complaint, and held that evidence failed to establish any right to install pipes or cables.
The landowners appealed to the Court of Appeals. The City of New York contended in the Court of Appeals that the Water Supply Act delegated to authorities of the City of New York the sole power to determine the nature of the real property interest to be acquired for water supply purposes, and that map filed in the Catskill Aqueduct condemnation proceeding together with the petition for appointment of commissioners of appraisal therein clearly showed the intent of the City of New York to acquire fee title subject only to right to pass and repass over the surface of the ground on the right of way, and that therefore the Appellate Division properly ruled that evidence failed to establish that landowners had right to install pipes or cables beneath the surface of the land subject to the right of way.
Holden Brothers, White Plains, for appellants.
Charles H. Tenney, Corp. Counsel, New York City (Seymour B. Quel, New York City, Samuel Mandell, Brooklyn, John Suglia, and William A. Marks, New York City, of counsel), for respondent.
Judgment affirmed, with costs, in the following memorandum: The reservation of a mere 'right of way' under the decisions included only the right of passage over the surface of the land (Thompson v. Orange & Rockland El. Co., 254 N.Y. 366, 173 N.E. 224; Osborne v. Auburn Tel. Co., 189 N.Y. 393, 82 N.E. 428; Eels v. American Tel. & Tel. Co., 143 N.Y. 133, 38 N.E. 202, 25 L.R.A. 640; Ferguson v. Producers...
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...by the phrase "right-of-way over the lands of, plaintiffs rely on New York Court of Appeals precedent in Holden v. City of New York, 7 N.Y.2d 840 [1959], For their part, defendants rely on the absence of the words "ingress and egress" from the deed to support their argument, together with t......
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