In re Bd. of Rapid Transit R. Com'rs of New York

• Decision Date: 17 December 1909
• Citation: 90 N.E. 456,197 N.Y. 81
• Parties: In re BOARD OF RAPID TRANSIT R. COM'RS OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 81

90 N.E. 456

In re BOARD OF RAPID TRANSIT R. COM'RS OF CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 17, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the application of the Board of Rapid Transit Railroad Commissioners of the City of New York, for the purpose of acquiring a perpetual underground road, easement, and right of way under Joralemon street, in the borough of Brooklyn, city of New York. From an order of the Appellate Division (128 App. Div. 103,112 N. Y. Supp. 619), reversing in part and affirming in part an order made at Special Term confirming the report of the commissioners of appraisal appointed in proceedings brought under the rapid transit act, the city of New York and the Board of Rapid Transit Railroad Commissioners appeal, and the Appellate Division certify questions. Reversed in part, and affirmed in part, and questions answered.

This proceeding was commenced on the 22d of January, 1903, by the board of rapid transit railroad commissioners of the city of New York to procure the appointment of commissioners of appraisal, pursuant to the rapid transit act, so called, passed in 1891, and the various acts amending and supplementing the same. Laws 1891, c. 4; Laws 1892, cc. 102, 556; Laws 1894, cc. 528; 752; Laws 1895, c. 519; Laws 1896, c. 729; Laws 1900, c. 616; Laws 1901, c. 587; Laws 1902, cc. 533, 542, 544, 584; Laws 1909, c. 498. The commissioners, who were appointed accordingly, took their respective oaths of office on the 25th of January, 1903, and, after many sessions during which much evidence was taken, made their ‘first separate report’ on the 22d of December, 1905, whereby they made the following awards:

(1) To Wilhelmus Mynderse, as the owner of premises fronting on Joralemon street in the borough of Brooklyn, including the fee to the center of that part of the street directly in front thereof, the sum of $15,000, ‘as compensation for the portion of his land which has been taken in Joralemon street in this proceeding, including the injury to his property upon the premises above described, adjoining, which would necessarily arise from the proper construction, maintenance, and operation of a tunnel under the surface of Joralemon street, in the manner as set forth in the plans and specifications and contract, above referred to.’

(2) To George B. Abbott, as the owner of premises fronting on Joralemon street, including the fee to the center of that part of the street directly in front thereof, the sum of $6,000, as compensation for the portion of his land taken and the injury to his adjoining property, on the basis mentioned in the award to Mr. Mynderse.

(3) To John Notman, as the owner of land fronting on Joralemon street, but not including any part of the street in front thereof, as the same belonged to unknown owners, who were awarded a nominal amount, ‘the sum of $12,000, as damages caused by the taking of the easement of support’ appurtenant to his premises abutting on said street. ‘This easement,’ as the commissioners stated, ‘is a valuable adjunct to his property, and we consider that, under the provisions of the statute under which this proceeding is taken, is one for which he is entitled to compensation.’

On the 31st of May, 1906, the report of the commissioners was in all things confirmed by an order of the Special Term, which denied, for the want of power, a motion made in behalf of said owners to be allowed counsel fees, taxable costs, and disbursements, and also denied, upon the same ground, a motion made in behalf of the commissioners of appraisal for an extra allowance to themselves. Messrs. Mynderse and Abbott appealed to the Appellate Division from that part of the order which affected their respective premises, upon the ground that their awards were inadequate, and also from that part which denied their application for counsel fees, costs, and disbursements. Mr. Notman appealed only from so much of the order as denied his application for counsel fees, etc. The board of rapid transit commissioners, in behalf of the city of New York, appealed from all of said order, except the part relating to allowances, upon the ground that the city is not liable to any abutting owner to any extent whatever. The commissioners of appraisal appealed from that part of the order which denied their application for an extra allowance.

The Appellate Division, after reciting that Mynderse, Abbott, and Notman had died during the pendency of the appeal, and that their personal representatives had been duly substituted, reversed the order of the Special Term so far as it related to the awards made to Mynderse and Abbott, as well as that part which denied costs and allowances to the respective appellants, and affirmed the order so far as it related to the award made to Mr. Notman. The proceeding was sent back to the commissioners for further examination, with instructions in relation to the measure of damages and the reception and consideration of evidence bearing upon the claims of Mynderse and Abbott, in accordance with an opinion which is reported in 128 App. Div. 103,112 N. Y. Supp. 619. The city of New York and the board of rapid transit railroad commissioners appealed to the Court of Appeals, as a matter of right, from so much of the order of affirmance as related to the award made to Mr. Notman, and, permission having been given by the Appellate Division, they also appealed from that part of the order of affirmance relating to the awards made to Mynderse and Abbott.

The following questions were certified to this court:

‘(1) In the case of the construction, on behalf of a city, of a rapid transit railroad under the powers conferred by the rapid transit act (chapter 4, Laws 1891), and acts amendatory thereof, under the streets of said city, of which streets the fee ownership, subject to the public easement of street use, is in the abutting owners, is there any liability on the part of such city to said abutting owners for damages arising from the proper construction of said railroad?

‘(2) Under the state of facts set forth in question 1, does a city on whose behalf such rapid transit railroad is constructed become, for the purpose of such construction, a railroad corporation, having no more rights in the street under which said rapid transit railroad is being constructed than would belong to any other corporation, and no other or higher right to take private property than would belong to an ordinary railroad corporation?

‘(3) Does the construction of a rapid transit railroad under a street, under the state of facts set forth in question 1, constitute an added burden on the street for which the abutting owners owning the bed of the street, subject to the easement of street use, are entitled to compensation?

‘(4) Under the state of facts set forth in question 1, is a city on whose behalf a rapid transit railroad is being constructed under a street liable to an abutting owner owning the bed of the street subject to the easement of street use, for damages caused by the impairment of the support of his buildings on his abutting land, by reason of the proper construction of said railroad?

‘(5) If question 1 be answered in the affirmative, are the damages in a proceeding to acquire property or rights or easements therein, for the purpose of the construction of a rapid transit railroad in a city under the rapid transit act (chapter 4, Laws 1891) and acts amendatory thereof, to be determined as of the time of the vesting under said acts of title in said city to said property, rights, or easements?

‘(6) If question 1 be answered in the affirmative, are the abutting owners therein mentioned, under the state of facts therein set forth, entitled to have taken into consideration the damages resulting to them by the necessary construction of shafts in the street near to their premises, in so far as these would have a tendency to diminish the market value of the property by reason of the consequential damages?

‘(7) If question 1 be answered in the affirmative, are the damages in a proceeding to acquire property or rights or easements therein, for the purpose of the construction of a rapid transit railroad in a city under Laws 1891, c. 4, and acts amendatory thereof, measured and limited by the difference between the market value of the property unincumbered by the easements acquired and its market value subject to such easements?

‘(8) If questions 1, 5, and 6 should all be answered in the affirmative, have the commissioners of appraisal, in determining the market value of the abutting property, subject to the property rights or easements required in a proceeding as set forth in question 5, the right to take into consideration the facts and circumstances not apparent and foreseen at the date of the vesting of title to such property rights or easements, but subsequently developed by the actual construction and operation of the road, and which, if apparent or foreseen at the date of the vesting of title, would have had the effect of increasing or decreasing the market value of the premises, subject to such property rights or easements?

‘(9) Does the rapid transit act (Laws 1891, c. 4) and acts amendatory thereof empower the allowance and taxation to the abutting owners, in proceedings instituted by a city thereunder, of their disbursements, costs, counsel fees, and extra allowances therein against such city?’Francis K. Pendleton, Corp. Counsel (Joel J. Squier and Theodore Connoly, of counsel), for appellant City of New York.

Frederick B. Campbell and Charles W. West, for respondents.

Leroy T. Harkness, for intervener Public Service Commission.

VANN, J. (after stating the facts as above).

The rapid transit act authorizes the city, through its board of rapid transit commissioners, to acquire by contract or condemnation ‘any real estate and any rights, terms and interests therein, any and all rights, privileges, franchises and...