In re Mayor

• Decision Date: 04 October 1892
• Citation: 135 N.Y. 253,31 N.E. 1043
• Parties: In re MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 253

31 N.E. 1043

In re MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, first department.

Applications by the mayor, etc., of New York, to acquire title to and possession of certain wharf properties, easements, lands under water, etc., in North river, between Thirty-Fourth and Thirty-Fifth streets, and Twelfth and Thirteenth avenues; also between Thirty-Fifth and Thirty-Sixth streets and same avenues; also between Forty-First and Forty-Second streets and same avenues. From orders of the general term, (18 N. Y. Supp. 536, 939,) affirming orders of the special term granting the applications, and appointing commissioners to assess the value of the property, the landowners appeal. Affirmed.

Anderson & Howland, (Henry H. Anderson, of counsel,) for appellants.

E. J. Freedman and Charles Blandy, (William H. Clark, of counsel,) for respondent.

PECKHAM, J.

In the above title are comprised three separate and distinct proceedings on the part of the city authorities to acquire title to the lands particularly described in the several petitions. The land described in the first petition is situated between Thirty-Fourth and Thirty-Fifth streets, and belongs to the New York Central & Hudson River Railroad Company, although the legal title thereto is vested in the individuals Cornelius and William K. Vanderbilt. It is used by the company for the purposes of its business. The fee of the land described in the second petition, and which lies between Thirty-Fifth and Thirty-Sixth streets, belongs to the estate of the late Marshall O. Roberts, and the property has been leased by the executors of his will to the New York Central & Hudson River Railroad Company for purposes connected with the business of that corporation. The land described in the third petition, and lying between Forty-First and Forty-Second streets, belongs to the Consolidated Gas Company of the city of New York, and is in use by that corporation for its own purposes. The proceedings to acquire the various interests connected with these lands were inaugurated by the city authorities in the due prosecution of the general plan duly adopted by the proper city officers, pursuant to the various statutes relating to the construction, possession, ownership, and maintenance by the city of piers and bulkheads in the North and East rivers. The application for the appointment of commissioners to appraise the value of the property to be taken was opposed in each instance by those owning or interested in the property. At special term the application was in each case granted, and the general term, upon appeal, affirmed the order appointing the commissioners. An appeal has been taken from each order to this court.

The parties who oppose these proceedings do so upon three principal grounds: (1) They maintain that the act which permits the city to appropriate any of the wharves, piers, etc., to the sole use of special kinds of commerce or of steamboats, and also to lease the piers or property, does thereby, in effect, provide for a private use of such property, and they say that property which is intended for private use cannot be acquired against the will of its owner by the exercise of the power of eminent domain, either by the state itself, or, as in this instance, by its agent or substitute, the city of New York. (2) They claim that the property, or some part of it, is already devoted to public use by the railroad and the gas companies, and cannot be condemned to any other public use under a general act of the legislature. (3) They also urge that the statute contemplates a real and actual, although ineffectual, attempt to agree upon a price to be paid for the land, as a condition precedent to the right of the city to exercise the power of eminent domain, and in each of these proceedings it is contended that no real, bona fide attempt to agree upon such price was ever in fact made.

The first ground taken by the owners, if tenable, is conclusive in their favor. It strikes at the foundation of the whole proceeding, and no step can be taken which will avoid the objection. Private property cannot be taken for private use against the will of its owner, even upon full compensation being made. The objection raises a most important question. If the privilege of leasing to a particular steamship line, to the exclusion of all others, certain parts of the water front upon which a bulkhead and a pier have been erected, make the use of the pier a private use, one owner of wharfage rights may refuse to sell, and thus absolutely prevent the building of a pier in that locality by the city, and thus, also, obstruct to that extent the development of the general plan for docks and piers adopted by the officers of the city under authority of the legislature. The learned counsel for the owners cites many cases to show that the use to which the property is to be applied must be a public use. The question whether or not it be such a use is a judicial one. There is, as I think, unquestionably a distinction between the use which is public and an interest which is public; and where there is simply a public interest, as distinguished from a public use, the right of eminent domain cannot be exercised. The interest may be of a public nature when the use may tend incidentally to benefit the public in some collateral way. In such case the right to take property in invitum does not exist.

Speaking in general terms, I should say that the public must, under proper police regulations, have the right to resort to the land or property for the use for which it was acquired, independently of the mere will or caprice of any private person or corporation in whom the title to the property would vest upon condemnation. Otherwise the use could not be public. Cases might be cited which declare such principles. The case of In re Eureka Basin, etc., 96 N. Y. 42, supports this general doctrine. In that case the use to which the company intended to put the land that it desired to acquire was held not to be a public use, and, among others, one reason for so holding was the fact that, when acquired, no one would have the right to resort to it upon any terms whatever against the arbitrary will of the company. It was also held that the company itself was not proceeding in good faith. So, also, in regard to highways. It has been truly said it is not the amount of travel upon a highway which distinguishes it as a public, instead of a private, road. A private road might have the larger amount. It is the right to travel upon it by all the world, and not the exercise of the right, which makes it a public highway. A public highway to which the public had not the right of access would be an impossible creation; and so a public use might generally be defined as the use which each individual might of right demand upon the same general terms, and for the same general purposes, as any other individual.

These general definitions, however, do not always cover the case. The statement that the land must be intended for such use, that all the public may resort to it upon the same terms, was correct, undoubtedly, in those cases in which the rule itself has been thus formulated. It does not, however, accurately describe, for instance, the public use of the land which has been taken for railroad purposes. The public has a right of access to the various stations of the company, which right is necessary to enable the public to avail itself of the right of transportation. But it has no legal right to use the bed of the road for any purpose whatever. There is a right to demand crossings of the road under certain circumstances, but there is no general right of the public to use the land of the railroad company. In the case of such a corporation, the right is transformed into a right on the part of all the public to demand, at any station of the company, transportation over its road upon the legal terms of compensation for person and property. It is this right on the part of the public which makes the use of the land by the company, upon which to lay its rails and plant its depots and freight houses, a public use. Other illustrations might be given to show, what is plain enough without them, that property may, under certain circumstances, be devoted to a special and particular public use, and yet the entire public be permitted to use it, or have access to it, only in a very restricted manner. These observations bear, I think, upon the act which the defendants assail. If the pier or dock is leased to a lessee, the public necessarily is itself, to the extent of the possession of the lessee, excluded from the possession of it. At the outset it is, however, to be observed that the act of 1871, as...