McCoy v. Jordan

• Decision Date: 15 July 1925
• Citation: 148 N.E. 793,241 N.Y. 71
• Parties: McCOY v. JORDAN et al.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 71

148 N.E. 793

McCOY

v.JORDAN et al.

Court of Appeals of New York.

July 15, 1925.

Mandamus by Frank N. McCoy, Jr., against Edmund Jordan and others. From an order of the Appellate Division (212 App. Div. 534, 209 N. Y. S. 109), affirming an order of the Special Term, which granted petitioner's motion for a peremptory mandamus requiring the defendants to remove all curb gasoline pumps from streets of Peekskill, the defendants appeal.

Orders reversed, and writ denied.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Robert F. Barrett Corporation Counsel, of Peekskill (Daniel J. Kenefick, of Buffalo, of counsel), for appellants.

Myle J. Holley, of New York City, for respondent.

LEHMAN, J.

Pursuant to an ordinance passed by the village of Peekskill, the village authorities have permitted the erection of several gasoline pumps upon the sidewalks of public streets or highways, at or near the curb line. A peremptory mandamus order has been issued to compel the removal of these pumps on the ground that they constitute unlawful encroachments or obstructions in the highways.

Licenses have been issued by the village authorities for the erection of these pumps. The village ordinance, passed on April 27, 1920, provides for such licenses. Similar pumps, erected upon the sidewalks close to the curbstones of streets in Buffalo, have been held to constitute an unlawful encroachment upon the city streets, though authorized under the terms of a municipal ordinance. Matter of Kahabka v. Schwab, 205 App. Div. 368, 371, 199 N. Y. S. 551, affirmed, without opinion, 236 N. Y. 595, 142 N. E. 298. The question presented in that case was whether the municipal authorities of the city of Buffalo had power to authorize the erection of such incumbrances or obstructions, and the opinion of the Appellate Division points out that:

‘Neither in the provisions of the charter nor any other statute to which our attention has been called have we found authority to authorize the city to divert the public streets to such private use.’

We did not pass upon the question of whether the Legislature had the power to grant such authority if it saw fit. We decided that the Legislature did not attempt to grant the authority. The charter of the village of Peekskill does authorize the board of trustees of the village under specified circumstances ‘to also issue permits for placing tanks and containers for storage of gasoline, kerosene, or other oils, within the bounds of a public highway and beneath the surface thereof, and to permit arrangements for drawing therefrom upon the curb line of such street,’ and the legality of the incumbrance of which the relator complains depends upon the construction and effect of this provision of the village charter.

[1] Streets and highways are established for the benefit of the public, and it is too well established to require any citation of authority that a municipal corporation or local governing body may not, at least in the absence of legislative authority, permit an incumbrance thereon which, but for such permission, would constitute a nuisance. Such legislative authority should be express or clearly implied. It is claimed that the authority to ‘permit arrangements' upon the curb line of a highway for drawing gasoline from a tank within the bounds of the highway should not be construed as authorizing permission for the erection of a pump. We think that the Legislature clearly intended to confer authority to give such permission. While perhaps it would be practical to draw gasoline from tanks in some other manner, which, it may be argued, would interfere less with the enjoyment of the entire street by the public, yet the Legislature has chosen to leave the choice of ‘arrangements' for such purpose to the discretion of the village authorities. In expressly conferring upon the village officers the authority to grant such permission, the Legislature must have contemplated that some ‘arrangement’ might be permitted which without such permission would not be lawful. The use of such pumps for this purpose was not unusual, and we cannot say that if the Legislature had power to grant the village officers the authority conferred by the statute, the permission to construct a fixed pump as a reasonable ‘arrangement’ for drawing gasoline from underground tanks exceeded the authority given. The highways affected by the statute are in a village and not in a great city. The authority conferred is coupled with the right to prohibit such constructions at any point or place where the village board ‘may beem the location thereof as unnecessary, and to cause the removal thereof at the expense of the adjoining property owner, when said board shall deem it necessary and proper.’ These circumstances may enter into our consideration of the proper construction of the authority which the Legislature attempted to grant and of the power of the Legislature to confer such authority.

[2] We have in many cases pointed out that a local governing body, even though it owns the fee of the streets or highways, may permit occupation of a part thereof only be express authority derived from the Legislature.

‘The title to the streets and highways, whether in the people or a municipality, or in fee or in easement, is held for the public use. The fee of the streets acquired by the city of New York is held by it in trust for the use of all the people of the state and not as corporate or municipal property. The power of the Legislature in respect to them is qualified by the Constitution alone. * * * The Legislature may, unless forbidden by the Constitution, delegate to a municipality, or an agent for such purpose, the power to authorize it [an encroachment], but the delegation must be in clear and unmistakable language.’ People ex rel. City of New York v. N. Y. Rys. Co., 217 N. Y. 310, 315,112 N. E. 49, 51.

Of course the powers of the Legislature in this respect may be qualified and limited, not only by express prohibitions contained in the Constitution directly referring to the streets and highways, but also by the general constitutional limitations that the Legislature may not deprive the individual of his property without compensation, nor may it authorize the private appropriation of property held in trust for the public, in a manner which would unreasonably interfere with its use by the public. In the case of Bradley v. Degnon Contracting Co., 224 N. Y. 60, 120 N. E. 89, we recognized both the extent and the limitations of the legislative control of...