111 N.Y.S. 916 | N.Y. App. Div. | 1908
This proceeding was instituted by the city of Hew York to acquire title to the land required for the opening and extending"of One Hundred- and Thirty-sixth street from Locust avenue to the East river, a distance of one block. Commissioners were appointed, who made awards for damages for the land taken from Locust avenue to the bulkhead line in the East river. The assessment for i t benefits was not confined to the property immediately adjacent to the proposed street, but included a large area,'and from the order confirming the supplemental and amended report of the commis
I do not think there is any merit in this claim. The purpose in extending the street was, obviously, to afford access to the river, and this could not be accomplished-unless the city acquired title to the bulkhead line. The board had the power to authorize this to be done (Matter of Mayor of New York, 74 App. Div. 343), and it is evident that such was its intention. (Matter of City of Brooklyn, 73 N. Y. 179.) In subsequent proceedings the property sought' ,to be acquired was described as extending to the bulkhead line. It is doubtful whether the appellants are in a -position to raise the question, inasmuch as it does not appear, when the report was presented for confirmation, that they made any objection so far as the awards for damages were concerned. But assuming that they are, the claim is without foundation and may be dismissed without further consideration. ,
It is also contended that the assessment for benefits is inequitable. The general rule is- that the cost of the land taken for each block of-a street shall be assessed upon property fronting upon such block. (Matter of Grant Avenue, 76 App. Div. 87; affd., 175 N. Y. 509 ; Matter of Rogers Avenue, 22 N. Y. Supp., 27.) But this rule, like all others, has its exception, as was held by this court in Matter of City of New York, Spofford Avenue, (126 App. Div. 740). In the present case the extension of One Hundred and Thirty-sixth street gives access to the water front and 'it is apparent the surrounding neighborhood will be largely benefited. It would certainly be unjust to compel the owners of the property fronting on the block to bear the entire cost, and linger such circumstances, as in the case last cited, the so-called “ block rule ” is inapplicable. The commissioners proceeded upon the proper theory. Having inspected the territory, and considered the evidence bearing upon the question, they made the
The appeal on behalf of the railroad companies presents an entirely different question. The Harlem River and Port Chester Railroad Company owns a strip of land one hundred feet wide, which runs through the area assessed for benefits. The Mew York, Mew Haven and Hartford Railroad Company is the lessee and occupant of this property. It appears that the railroad tracks occupy only thirty feet of the width of this strip and the remaining seventy feet were, at the time of the hearing, unoccupied, though an attempt was made to show that additional tracks were'about to be laid. The commissioners divided the property accordingly — imposing a nominal assessment only on the parcel actually occupied, but making a substantial assessment against the unoccupied parcel — and in doing so, I think, erred.. The Harlem River and Port Chester Railroad Company acquired title to this strip, one hundred feet wide, for the roadbed of its road pursuant to its charter. Real property acquired by a railroad for the purpose of its incorporation is deemed to be acquired for a public use. (See Laws of 1890, chap. 565, § 7, as amd.
For-the foregoing reasons I am of the opinion- that the order, in so far as appealed from by the property owners other than the railroad companies, should be affirmed, with ten.'dollars costs and disbursements, and in so far as appealed from by the railroad companies should be reversed, with ten dollars costs and disbursements, and the report returned to the commissioners with instructions to strike out the assessment disallowed, and redistribute the amount thereof upon the property subject to the assessment.
Ingraham, Olarke, Houghton and Scott, JJ., concurred.
As to railroad companies, appellants, order reversed, with ten dollars costs and disbursements, and report remitted to commissioners as stated in opinion, as to- other appellants order affirmed, with ten dollars costs and disbursements. Settle order on notice.
See Laws of 1893, chap, 676, and Laws of 1905, chap, 737,— [Rep.
See Laws of 1901, chap. 466, § 980, et seq., as amd-. See Laws of 1905, chap. 399; and Laws of 1906, chap. 658.—-[Ree. ■