In re Commissioners of Central Park

35 How. Pr. 255 | N.Y. Sup. Ct. | 1868

By the Court, Ingraham, J.

The objection taken to these proceedings, on the ground that the act is unconstitutional, cannot be sustained. The power, it is alleged, to make the application, which by the act is vested in the Commissioners of the Central Park,. should have been given to the common council, and the objectors claim the act on that account to be unconstitutional. The common council never had authority, since 1807, to lay out any streets or public places in that part of the city which was embraced in the map of the commissioners, filed under the act of 1807. Their power was below the limits embraced in that map, and the authority conferred upon the commissioners did not in any way interfere with the authority previously bestowed on the common council. The act of 1813, expressly limited their powers to that part of the city not laid out by virtue of the act of 1807. They had no authority to lay out or open any but such as were provided for on the said map. The authority conferred on the commissioners is not that of any local officers, nor does it authorize them to discharge the duties of any office, but it provides for a discharge of a mere ministerial act, viz : presenting to the court a petition for the opening of a street. So far as the objection is taken here, we are to treat it as a mere authority for such a purpose to make an application to the court for the opening, and that power may I think be conferred- on the commissioners. This objection was made to the proceedings in the Matter of the Central Park extension, (16 Abb. 56.) I see no reason to change the views then expressed by me against the validity of the objéct-ion.

I do not intend to be understood as holding that all the powers conferred on the commissioners by this statute are valid. The right to grade streets in this city has always been exercised by the common council, as well as other powers conferred by that act on the commissioners, and it may well be doubted whether the legislature can take from the common council this power, and confer it -on state officers. It is not, however, necessary on this application to decide this point, and I make the suggestion merely to avoid the supposition that it is intended in this decision to validate all the powers granted by that statute.

The legislature might have laid out this drive in the-act, and having that power they might authorize others to do it. In fact no such road or drive could be laid out without the authority of the legislature, and whenever it has been necessary to open any new street" or avenue not laid down on the map, such legislation has been deemed necessary, and the limits of the street or avenue have been fixed by the statutes. There are several cases where such acts have been passed without any action of the common council, such as Madison avenue, part of Second avenue, and others, where proceeding have been taken by other parties than the common council. The limitation of four, months, within which the commissioners are required to complete their report, contained in the act of 1862, does not apply to this proceeding. It applies to streets and avenues in the city, north of Fourteenth street, and must be confined to streets and avenues then laid out as such, and is not to be applied to such a work as that contemplated by this statute. It is evidently impracticable properly to complete such a work within that limitation..

Objections are made in several cases to the amounts allowed by the commissioners for the property taken—and the court is asked to review the decisions of the commissioners in this respect. It has been long since settled, and has uniformly been acted upon by this court, that a mere error of judgment in the valuation of property taken was not the subject of review on a motion to confirm the report, unless the sum allowed was grossly inadequate and unequal as compared with other valuations, or unless some wrong principle was adopted as to- the amount allowed. There are good reasons why such a rule should be enforced. The commissioners have the opportunity of examining the property, of seeing its location and condition, its adaptation to use, and'of inquiry as to value not in the power of the court, and the result of such examinations and inquiries cannot be brought before the court. There may have been difference of opinion between the owners and the commissioners as to these values, but we see nothing in this difference justifying us to interfere. There is no .error in law in any mode of valuation which has been adopted, and we see no ground on which, according to all former decisions, we could interfere with the valuations as made by the commissioners, in the case of any of the parties objecting.

The remaining objection -is to the taking of gores outside of the line of the road, as laid out, if the same is to be of one continuous width. The statute describes it as a road or public drive, running from the northerly portion of the Sixth or Seventh avenue, &c. and to enter the Central Park at or near the junction of the Bloomingdale road, Eighth avenue and Fifty-ninth street, and to follow the course of the Bloomingdale road below One Hundred and Sixth street,' when the commissioners should deem such ' course advantageous. It then provides that they shall determine the location, width, courses, windings, &c. of said road.

It is very clear that this act does not authorize the taking of any land not required for the drive or road, and the latter provision seems to prescribe an uniform width to the road'very inconsistent with the lines as adopted on the map filed. The act of 1839, (p. 182,) directs how the commissioners shall be appointed, viz. by a notice specifying the time and place of the application and the nature and extent of the intended improvement. This provision is made necessary by the act of 1865, in regard to this proceeding.

Under this provision I think it is necessary' that the ■ whole extent of the intended opening should be stated in the notice. The owners are to be informed by it what property is to be taken. A reference to a map on file in some public office is not a compliance with the statute.

It is said that the owners have in some cases appeared before the commisioners and claimed allowances for their lands, and therefore cannot now object. But that cannot give jurisdiction if it is not acquired in the mode prescribed by law. Suppose they had proceeded in addition to the road, to take land for a square outside of the drive and the owners had submitted their claims, it could not be upheld that the commissioners thereby acquired jurisdic-. tion to take the same. They must be confined to the land which the notice describes as required for the improvement.

[Net York General Term, June 1, 1868.

Geo. (?.' Barnard, Xngralmn and ¡Sutherland, Justices,

Considering the intent of the statute to make a road of an uniform width, and the notice as given of such a road, without referring to the gores outside of the road, I do not see the necessá-ry authority for taking land outside of the lines of the road as laid out by them. But this is not all. The notice not only does not include those gores, but virtually excludes them, by the following: “ said road or public drive is of a general width of one hundred and fifty-feet, as shown on a certain map,” &c. Parties owning lands outside of the road so described, could not be notified that it was intended to go outside of those lines and take large parcels of land at different places on the route. The commissioners had no jurisdiction to take these gores, and so far as they are included in these proceedings, they are erroneously taken.

The report should be sent back to the commissioners, with directions to omit the valuation of the land outside of the road as described in the notice; to deduct the amount awarded therefor from their assessment, in such manner as they shall deem just; and to assess the same for benefit, if such lands are benefited by the improvement.