MATTER OF CITY OF NEW YORK (HARLEM RIV. DRIVE)

• Decision Date: 26 January 1953
• Citation: 204 Misc. 565
• Parties: In the Matter of The City of New York, Relative to Acquiring Title to Real Property Required for Harlem River Drive from West 155th Street to Eighth Avenue, in the Borough of Manhattan.
• Court: New York Supreme Court

204 Misc. 565

In the Matter of The City of New York, Relative to Acquiring Title to Real Property Required for Harlem River Drive from West 155th Street to Eighth Avenue, in the Borough of Manhattan.

January 26, 1953.

Julius B. Sucher and Theodore S. Hochstim for Superintendent of Insurance, claimant.

T. N. Pfeiffer and J. R. Ballin for Jay Coogan and others, claimants.

Denis M. Hurley, Corporation Counsel (Samuel K. Handel of counsel), for City of New York.

EDER, J.

The instant proceeding involves a controversy as to title between the Superintendent of Insurance as liquidator of the New York Title and Mortgage Company and Jay Coogan with respect to damage parcels 2, 3, 4 and 5, and a similar conflict exists as to damage parcel 6 between the superintendent and Jay Coogan, Gardiner Coogan, W. Gordon Coogan and Sarah Jessie Coogan, as heirs and descendants of Harriet G. Coogan, who died intestate, on December 18, 1947.

The claims of Jay Coogan originally included damage parcels 2, 3, 4 and 5 but at the trial herein the parties agreed to eliminate damage parcels 4 and 5 title to which is claimed by the city.

Damage parcel 4 is the bed of Exterior Street. Damage parcel 5 relates to a gore of land inshore and outshore the bulkhead line. Claim to this parcel was made by Jay Coogan, the Superintendent of Insurance and the city. The superintendent concedes ownership of this parcel is in the city and withdraws his claim thereto. Such a concession is not made by Jay Coogan.

Damage parcel 6 relates to the bulkhead rights. As to this parcel the four Coogan claimants and the Superintendent of Insurance have filed claims.

In view of the foregoing the determination to be made here is confined to damage parcels 2, 3 and 6 on the issue of title thereto between the Superintendent of Insurance and the Coogans.

As to any issue of title as to damage parcels 4 and 5, to which the city claims title, determination thereof will be made at the time of fixation of the award.

In this proceeding the court has considered the testimony given on examinations before trial heretofore had, which has been offered and received in evidence, and also the agreed statement of facts made by respective counsel in open court.

In 1919, Mrs. Harriet G. Coogan owned all the property here in concern, viz., damage parcels 2, 3, 4, 5 and 6, inclusive. On December 15, 1919, the Eighth Avenue Railroad Company, a domestic corporation, operating a street railroad in this city, presented its petition to this court pursuant to the appropriate provisions of the Railroad Law for a judgment decreeing that the public use required the condemnation of the property owned by Mrs. Coogan. The petition concluded with the prayer that it be adjudged that the railroad company was entitled to take and hold such property for the public use specified therein upon making compensation therefor and that commissioners of appraisal be appointed to ascertain the compensation to be made to Mrs. Coogan, as owner, for the property so taken, and for such further and other order in the premises as might be just.

Mrs. Coogan made answer to the petition and opposed the requested and desired condemnation. She pleaded as a separate defense that her property was not needed or required for the alleged public use; that if the property then possessed by the railroad company was properly applied and utilized it was adequate to meet the then present and future requirements of the railroad company and that no necessity existed for the railroad company acquiring her property or for an order for its condemnation, and prayed that the said petition be dismissed.

After due consideration, the court, on October 1, 1920, made an order adjudging that condemnation of said property was required by the company for the better management, maintenance and operation of its said railroad, and was necessary for the public use, and that the company was entitled to take and hold said property for the specified public use upon making compensation therefor.

Commissioners of appraisal were appointed by the court to ascertain and appraise the compensation to be made to Mrs. Coogan for the real property, rights, interests, uses or easements owned by her, to be taken for said public use. The commissioners took testimony with respect thereto and filed their report and opinion on May 17, 1921, and thereafter a final order of condemnation was made by this court on June 27, 1921, wherein the report of the commissioners as to the compensation to be made was confirmed.

The said final order further directed that upon payment being made by the railroad company to Mrs. Coogan, the title to the said property, and all rights, interests, uses or easements in connection therewith, owned by her, should be deemed vested in the company for the public use set forth in the petition.

The petition set forth that the company was formed under the General Railroad Act, chapter 140 of the Laws of 1850, as amended by chapters 140 and 282 of the Laws of 1854, for the purpose of constructing, maintaining and operating a railroad for public use along certain designated street surface areas and that the railroad was duly constructed and completed by the company and for many years prior to its application for condemnation was maintained and operated by the company and its lessee.

The petition averred that the public use for which said property was required was occasioned by the need of a change in the motive power of transportation from the use of horses and horsecars to the use of underground electric power with electric cars, and the need of the use of the Coogan property for erecting and maintaining thereon a power plant for the manufacture of electricity for power and lighting, a machine shop and a carbarn for the housing, storage, maintenance and repair of cars, and the storage of machinery, materials and equipment for the better management, maintenance and operation of the railroad.

The petition further alleged that it was the company's intention in good faith to use the said property for the purpose of its railroad and to complete the work of improvement for which the property was sought to be condemned.

The said condemnation proceeding was instituted by the railroad company pursuant to the provisions of the Railroad Law in effect during the 1919 condemnation and which are embodied in subdivision 2 of section 8 and section 17 of the present Railroad Law.

Section 8 provides that in addition to the powers given by the General and Stock Corporation Laws, every railroad corporation shall have power to acquire real property for certain specified purposes, and by subdivision 2 thereof a railroad corporation is authorized: "To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad; and to acquire by condemnation such real estate and property as may be necessary for such construction, maintenance and accommodation in the manner provided by law, but the real property acquired by condemnation shall be held and used only for the purposes of the corporation during the continuance of the corporate existence." (Emphasis supplied.)

Section 17 provides for acquisition of title to real property and to additions, betterments and facilities thereof and requires that the acquisition shall be for a public use, and that it may be acquired by condemnation. So far as here relevant, it provides: "All real property required by any railroad corporation for the purpose of its incorporation or for any purpose stated in this chapter shall be deemed to be required for a public use, and may be acquired by such corporation."

It is thus quite clear from the language of these enactments that the acquisition of such real property by a railroad company, by condemnation, shall be an acquisition for a public use only and shall not be an acquisition in fee simple. Subdivision 2 of said section 8 clearly so discloses: "but the real property acquired by condemnation shall be held and used only for the purposes of the corporation during the continuance of the corporate existence."

And as section 17 pointedly states, all real property acquired by condemnation for the purpose of the railroad shall be deemed to be required for a public use.

Nowhere in these provisions is there anything to the effect that where title is sought to be acquired by condemnation the railroad company is authorized to obtain a title in fee simple, and otherwise than for a public use. Nothing therein indicates a legislative intent that the railroad company may, by condemnation, acquire a title in fee simple, for a private use.

Indeed, the petition of the railroad company for the condemnation of the property contains no allegation that it sought to acquire, by condemnation, a title in fee simple, and other than for a public use. Only in the prayer of the petition is there such a statement. Even the final order of condemnation contains no vesting of a title in fee simple or a title unconnected with a public use. The final order distinctly recites and declares that the title which is vested in the railroad company is "for the public use."

It is an established canon of the law of eminent domain that though the Legislature may determine the extent of the title to be acquired by a railroad corporation by condemnation, unless express authorization to take a fee is given, the railroad company acquires title only in the nature of an easement; that the provisions of such an act will be rigidly construed, and the quantum of the title to be taken will not be extended by implication (Crouch v. State of New York, 218 App. Div. 356; Hayner v. State of New York, 193 Misc. 74). These citations are comparable cases. In the Crouch case, the court said (p. 361): "The rule is that when private property is taken in the exercise of the right of eminent domain, particularly by a private corporation, the taking is limited to...