Wellens v. Palisades Interstate Park Commission
| Decision Date | 09 December 1961 |
| Citation | 32 Misc.2d 101,222 N.Y.S.2d 94 |
| Parties | Ben WELLENS, Ned A. Besso, Paul Alfieri, and Samuel Eidelberg, Co-partners doing business under the firm name and style of Kathy Land Co., Plaintiffs, v. PALISADES INTERSTATE PARK COMMISSION, and the People of the State of New York, Defendants. |
| Court | New York Supreme Court |
Granik, Garson, Silverman & Nowicki, Spring Valley, for plaintiffs.
Louis J. Lefkowitz, Atty. Gen., for defendants.
This action, tried before the court without a jury, is brought by plaintiffs pursuant to Article 15 of the Real Property Law, or, in the alternative, for a declaratory judgment declaring their rights as alleged abutting owners to a certain road located in the Town of Clarkstown, Rockland County, known as West Clarkstown Road. Plaintiffs, owners of land having a 900-foot frontage abutting a 35-foot marginal area of land owned by defendant Palisades Interstate Park Commission, seek to compel the Commission to permit them to cross over this area from any portion of their land onto said West Clarkstown Road owned and constructed by the Commission and used as an access to and from the Palisades Interstate Parkway and also as a connecting road between two county highways.
Certain material facts are undisputed.
In 1937 defendant Palisades Interstate Parkway Commission was created by an interstate compact between New York and New Jersey, authorized first by the Legislature of New York and New Jersey, and then approved by Congressional resolution (New York Laws 1937, Ch. 170; New Jersey Law 1937, Ch. 148; Congressional Resolution of August 19, 1937, Ch. 706, 50 Stat. 719).
The purpose of the Compact was to provide for continued cooperation
'in the establishment and maintenance of an interstate park along the front of the Palisades in said states and in the mountainous lands in Rockland and Orange counties * * *'.
Among other things, the two States undertook the following obligations:
'The parties hereto do hereby agree to and pledge each to the other, faithful cooperation in the future planning, improvement, development, maintenance, government and management of the park, holding in high trust for the benefit of the public the special blessings and natural advantages thereof.' (Compact, Article I).
Conservation Law, section 748, provides for some of the duties of the Commission in the following terms:
'* * * it shall be the duty of the commission to preserve, care for, lay out, improve and protect the portions of said park in this state and to make rules for the use and government of the same, and of such parts of state, county and other public highways as lie along or within the boundaries of such portions of the park, and of all lands, parks and parkways in this state under the jurisdiction of the commission; * * * the commission shall have power also to lay out, construct and maintain roads, pathways, boulevards, ways and parkways upon, across and over the portions of said park in this state, or between and connecting any portion of said park in this state and any other portion thereof in this state or in the state of New Jersey, or between and connecting any such roads, pathways, boulevards, ways and parkways within said park with other public roads or parkways outside of and adjacent thereto, and for these park purposes to acquire by purchase, gift, devise or eminent domain any lands in this state and any rights, interests and easements therein * * *'.
Consistent with such duties so imposed the Legislature defined the term 'Park' in Conservation Law, section 762:
'The terms park or parks as used in this part of this article, unless specifically limited, shall be deemed to include all lands, parks and parkways in this state, entrances and approaches thereto, and all roads, pathways, boulevards, docks, piers and bridges in, leading to or connecting such lands, parks or parkways or parts thereof and such other rights and appurtenances as the commission shall utilize for the purposes of this part of this article, which now are or may hereafter be owned by the commission or under its jurisdiction and control'.
Under rule 1(a) of the Rules and Regulations of the Palisades Interstate Park Commission, which, in the absence of any issue, this court can take judicial notice (Civil Practice Act, section 344-a, subd. 4), the term 'Park' includes 'parkways, park roads, bridges, spurs, open spaces and boulevards, and also entrances and approaches thereto * * *' and the term 'parkway' includes the 'paved roadways, access drives * * * and other areas within the right-of-way of the parkway' (6 Codes Rules and Regulations of the State of New York 261.1; see People of State of New York v. Apostle, 13 Misc.2d 55, 214 N.Y.S.2d 101 [County Court, Rockland County, October 26, 1961, Henion, J., County Judge]).
In 1946 defendant, Commission began acquiring lands for the purpose of constructing the main line of the Palisades Interstate Parkway and for suitable access, service and marginal roads used in connection therewith and in keeping with its overall park purposes mandated by the Legislature. At that time William R. Katt and Bertha Katt, his wife, were the owners of approximately 18 acres of land located at the then southwest corner of Gerke Road and North Middletown Road. In 1947 they voluntarily sold therefrom to defendant Commission for the sum of $21,200.00 a 'triangular' parcel of 7.97 acres at said corner with the result that they retained to themselves an area of about 9.92 acres with a small amount of frontage on Gerke Road and a 16.58-foot wide means of access leading therefrom to the remaining portion of said Gerke Road at the northwest corner of their property. In 1955 these remaining 9.92 acres of land were by mesne conveyances acquired by plaintiffs. However, between 1953 and 1955 defendant Commission caused to be constructed on said 'triangle' (purchased from Mr. and Mrs. Katt) by the State Department of Public Works, a part of the Palisades Interstate Parkway mainline, two cloverleaf approaches or ramps used for ingress and egress to and from the southbound lanes of the Parkway, and a road, (now called West Clarkstown Road) tangential to the two cloverleaf approaches, which in its dual capacity also serves to permit the flow of traffic for those who wish to go from the remaining portion of the old Gerke Road to North Middletown Road (both county roads). This stretch of land (North Clarkstown Road), approximately 1139.35 feet in length, runs approximately parallel to the base of the 'triangle' in front of plaintiffs' land a distance of some 900 feet and is separated from their land by a marginal area or right of way of about 35 feet in width through most of its length. It is the nature of this particular piece of road which is the pivotal issue upon which this decision hinges.
It is plaintiffs' prime contention in this lawsuit that their land is adjacent and contiguous to and abuts said West Clarkstown Road; that this road is a public highway; and that they have accordingly the right of access to and from any portion thereof. They contend, inter alia, that instead of dead-ending Gerke Road at the point intersected by the land developed by the Commission for the Parkway, the Commission elected to 'relocate' that portion of Gerke Road necessarily eliminated by the construction of the Parkway. This so-called 'relocated' Gerke Road, argue plaintiffs, now bears the name of West Clarkston Road, (as does the remaining portion of the old Gerke Road) and as such, must of necessity provide all the essential services requisite of a highway such as the pre-existing Gerke Road performed. Plaintiffs also point to the fact that the visual appearances and physical construction of West Clarkstown Road, with its distinctive and indicative white lines, its bituminous macadam texture (as distinguished from the Portland cement of the parkway mainline), and the commercial and pedestrian use to which it may be put (as distinguished from the limited permitted uses of the parkway mainline) are all indicative of an alleged intention on the part of the Commission to consider said road a public highway rather than a park road; and that while the land may have been purchased ostensibly for parkway purposes, it is in fact used to relocate a public highway and thus becomes impressed...
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