In re Bensel

• Decision Date: 18 February 1916
• Citation: 230 F. 932
• Parties: In re BENSEL et al., Board of Water Supply. v. SAGE. CITY OF NEW YORK
• Court: U.S. District Court — Southern District of New York

230 F. 932

In re BENSEL et al., Board of Water Supply.

CITY OF NEW YORK v. SAGE.

United States District Court, S.D. New York.

February 18, 1916

Edward A. Alexander, of New York City, for claimant.

Archibald R. Watson, Corp. Counsel, of New York City, opposed.

LEARNED HAND, District Judge.

I can see no reason to suppose that there was any practical way of uniting this land with adjoining lands into a reservoir site except by the right of eminent domain. The possibility which Mr. Justice Holmes has in mind is that the land might have an added value due to its availability for such a union through the usual course of the market, just as a corner lot has added value in the city of New York if available for an apartment house. Nobody can suppose that a reservoir site can result in that way, or without the right of eminent domain as a necessary condition. If so, no part of the availability value is to be included. 'The city is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable or have been attempted except by the intervention of eminent domain. ' Even though there was a possible prospect of other cities competing for the land, they would have each proceeded by eminent domain; indeed, that possibility was expressly suggested by Judge Coxe in the Circuit Court of Appeals. 206 F. 369, 124 C.C.A. 251. When the Supreme Court (239 U.S. 57, 36 Sup.Ct. 25, 60 L.Ed .) considered the matter, they certainly had in mind no such possibility.

It is not contended, I believe, that anywhere in the record is there any evidence that, except by eminent domain, a union of lots for a reservoir was feasible. Obviously, the suggestion, if made, would be fantastic. Therefore the opinion of that court requires an award of the amount already fixed as a fair value of land and buildings; i.e., $7,624.45.

The point that the Supreme Court had no power to do anything but reverse the award and require a new trial depends upon the Constitution of the state of New York, which requires the award to be made by a jury or by commissioners. If the award had been of a bulk sum, then it is probably true that no other recourse would have been open, but to have the commissioners make a new award. However, the commissioners wished to avoid this, so they expressly divided their award into two parts, and now it has been decided that one part should not have been included in the total. When an order is entered upon the opinion of the Supreme Court, it will enforce their award quite as much as if they had said nothing of the other...