15 N.Y.S. 123 | Superior Court of Buffalo | 1891
Lead Opinion
This is a proceeding instituted by the common council of the city of Buffalo to take the fee of the lands within the boundaries of the street called “The Terrace,” formerly “Busti Terrace.” By the charter, the city is empowered to take the fee, if the place has been a public street more than 10 years. The appellant is the owner of a lot of land fronting 215 feet on the terrace, and he owns the fee to the middle line of the street. He appeared by counsel on the application of the city for the appointment of commissioners of appraisal, and, “by his answer, alleged that the city was not seeking to acquire the lands in question for a street, but to enable it to carry out a contract between the grade-mossing commissioners and the 2few York Central & Hudson River Railroad Company, which, he alleged, was in excess of their powers, and void. The answer contained the further specific allegations “ that the said contract provided, amongst other things, for the excavation by said railroad company of a deep cutting through and along said Busti terrace, and the construction therein of railroad tracks; that in truth and in fact this proceeding is not instituted by such applicant in good faith, nor for the purpose of acquiring the fee of said premises for public streets, but solely for the purpose of enabling compliance with the said illegal and unauthorized contract so made by the said commissioners.” The grade-crossing commissioners were a board created by statute to make arrangements and agreements on behalf of the city with railroad companies for crossings of public streets less dangerous to life than crossings at grade, as heretofore existing, and it was claimed that the contract referred to was void because in a form not authorized by statute. On objection by the city attorney to the sufficiency of the answer, the court overruled it, and refused to receive evidence in support of its allegations. From this decision of the judge at special term the appeal is taken.
It is suggested by the appellant’s counsel that the ground upon which this decision was made must have been that the resolution of the common council which declared the purpose was conclusive, and therefore he claims that the ruling was erroneous. It is contended on behalf of the appellant, with a citation of cases supporting the contention, that the court had jurisdiction to inquire whether the purpose for which the fee was to be taken was a public street or not, and that it was error, therefore, to exclude the appellant’s proof upon that subject. “We maintain,” reads the brief, “that, even if the preliminary steps were on their face regular, commissioners should not have been appointed if the fee of the terrace was not being acquired for a street, but lor another purpose, and that we were entitled to a hearing on that issue;” and in another part of the appellant’s printed argument he says: “The court,
Dissenting Opinion
(dissenting.) The lands proposed to be taken consist of the fee of a certain open space in the city of Buffalo called “The Terrace.” It has for more than 10 years last past been used as a public street; the fee to the same residing in the owners of abutting property, of which Pratt, the appellant, is one. The proceedings instituted by the city of Buffalo were duly taken under and in pursuance of its charter, are in all respects regular, and conferred jurisdiction upon the court to entertain the same. Upon application for the appointment of the commissioners, Pratt appeared and made preliminary objection, based upon irregularity in the papers, and that the law under which the proceedings were instituted had been repealed. These objections being overruled, he then sought to raise an issue of fact for the determination of the court, and to that endo tendered an answer alleging, among other tilings, that certain persons appointed commissioners under and by virtue'of an act of the legislature providing for the relief of said city, and to change and regulate the crossing and occupation of streets, etc., in said city by railroads, were authorized to enter into a contract on behalf of the city with any railroad or other company using the streets, for relief from their present obstruction by such use, in pursuance of a certain plan theretofore recommended by a commission of engineers, and then on file in the office of the city engineer. That said commissioners, claiming to act for the city, entered into a contract with the Hew York Central & Hudson Biver Railroad Company, ostensibly in pursuance of the powers conferred by said act, but that in fact such contract was not for the relief of said city, was not in pursuance of the said plan, and not within the authority conferred by said act, and is void. That said contract provides for a deep cut through the Terrace, and the laying of railroad tracks therein. That this proceeding is not taken in good faith, nor for the purpose of acquiring the fee of said premises for public streets, but solely for the purpose of enabling compliance with the said illegal and unauthorized contract made by said commissioners. The tender of the answer was refused, proof of the facts thereof denied, and the commissioners were appointed. This ruling proceeded upon the theory that, the legislature having delegated to the city power to acquire the fee of such streets, the proceedings being regular, and the facts essential to a proper case for the exercise of the power appearing therein, it was conclusive upon the court, and that the owner could not be heard to contradict or overthrow it. This presents the only question argued upon this appeal. The city is authorized by its charter to take, in fee, for public streets, alleys, and squares, the lands situate within the boundaries of such places which have been or shall have been used as public streets, alleys, or squares for more than 10 years. Charier, tit. 8, § 22. The proceedings to acquire title are the same as in other proceedings authorizing the exercise of the power of eminent domain by said city, except that the only notice required is that of publication. Id. § 23. When the necessary steps have been taken, the city is required to make application to the court for the appointment of commissioners. “Such court shall hear such application, and may appoint three commissioners to ascertain the just compensation to be made for such lands.” Id. § 5.
These authorities seem to firmly settle that the power cannot be exercised except for the specified purpose, and that whether it is for the specified purpose or not does not rest upon the declaration of the legislature or its authorized body alone, but in each ease it rests upon what the fact is; and if, in fact, the proceeding is not for a public purpose, then it is the duty of the court.to so declare it, and refuse its sanction. Here the answer tendered, and the proof offered under it, which we must assume would have been made, tends to show, as a fact, that the fee of this street is wanted, not for a street or for a street purpose, but to aid in carrying out an illegal agreement, void under the act authorizing it, and for the purpose of enabling a railroad to make a deep cut through this street. This, if true, shows the property is not intended for the public use claimed, to-wit, a street, but for unlawful and private uses. It may be entirely true that the end sought by the city is to make the streets, and the one of which the fee is sought to be taken, more available for street purposes; but upon these subjects, and issues thus raised, the owner is entitled to be heard, and have the judgment of the court based thereon. His •claim is that, under the guise of the right of eminent domain, his property is being taken for a purpose not authorized by the delegated power, but for one entirely different. If this be so, then he is entitled to the judgment of the court establishing it. The law does not tolerate the disposition of property by indirection where it cannot be directly done. Thus, under the guise of the taxing power, a person may not be despoiled of his property, (Weismer v. Village of Douglas, 64 N. Y. 91;) and, under the claim of police regulations, the liberty and property of the citizen may not be arbitrarily invaded or taken away, (In re Jacobs, 98 N. Y. 98.) So, here, the declaration of the fact by the council is not conclusive, but may and should be inquired into upon the issues presented. It is further urged that the charter does not contemplate or provide for the serving of an answer, but it does provide for a hearing; .and upon the presentation of any matter, in answer to the claim of the city, which properly raises an issue, the court can take proof pertinent to the issue ■thus raised. Under the drainage act, no provision is made for any particular