104 N.Y.S. 239 | N.Y. App. Div. | 1907
The petitioner appeals from an order of the Special Term denying its motion to confirm the report of commissioners of estimate and assessment appointed in this proceeding, and setting aside such , report and referring the matter to new commissioners. The grounds for such order, as recited therein, are “for. irregularity and error of law in .the proceedings before the commissioners, and upon the further ground that the awards.therein made are wholly insufficient and inadequate.”
Counsel who argue in support of the order appealed from do not call attention to any irregularity in the proceedings before the com- ■ missioners, nor to any illegal act by said commissioners, nor to any
The petitioner is authorized by chapter 338 of the Laws of 1892 to supply gas and electricity in the city of New York, and for that purpose, among other things, it is empowered “ to lay and maintain * * * conductors, mains and pipes under and.across the East river, and across any intervening land belonging to the city of New York, or to private persons, at such places as it may determine.” It is also empowered “ to acquire by condemnation or purchase such real property, public or private, or right,.interest or easement therein, for the laying and maintaining of its mains, pipes and conductors as may be necessary in the exercise of the powers hereby conferred.” In pursuance of this authority the petitioner is engaged in constructing a tunnel from the foot of One Hundred and Tenth street, borough of Manhattan, to Astoria on Long Island. This tunnel will be 6,274 feet in length, 40 feet square, and at the mean average depth below tide water of 208 feet, and of a depth in-the solid rock of 172 feet below the upper surface of the rock. The tunnel thus passes, in the solid rock, under the East river and under Ward’s island. For convenience of construction and maintenance it is proposed to construct and maintain perpetually a shaft on Ward’s island which - will occupy a circular plot of land 40 feet in diameter. There is, and has been for many years,- a road on Ward’s island running • east and West and terminating at docks or bulkheads on the east and west sides of the island. ’ The property sought to be acquired may be summarized as follows :
Property rights and permanent easements.— First. Lands under water belonging to the State of New York between Astoria and the end of the tunnel on Manhattan island.
Second. Land under water belonging to the city of New York between Astoria and the end of the tunnel on Manhattan island.
Third. Land under the upland of Ward’s island belonging to the city of New York and-under lease to the State.
Fourth. Title in fee to a circular plot of land in the uplands of
Fifth. A permanent and perpetual eásemént in a right of way id feet wide leading from the north road on Ward’s island to the said shaft,, a distance of 170 feet.
Sixth. A permanent, and perpetual, but not exclusive, easement to the use of the north road from, the above-described right of way.
. to the west channel of-the East river, and over the bulkhead at the foot of said road. . ,
. Temporary easements.^—First. For the use during the construction of the shaft of a plot of land 150 feet in diameter surrounding and concentric with the shaft, site. - Second. For the right of way during the construction over the north road, to the east channel of the East river.
TJiird. For the right to use during construction the dock or. bulkhead at the, easterly end of-the north road for the landing of boats and the handling of material.
The claimants are the State of New York and -, the city of New York. The State of New York owns the land under the waters, of . the East river, except the lands under water immediately adjacent to Ward’s island, which belong to the city of New York. The State also holds a lease of Ward’s island for certain.purposes., ' - Ward’s island was conveyed to the city of New York by the. commissioners of emigration by a deed dated July, 1893, which contained a condition that it should-be forever used for general charitable purposes. It was so used until the passage by the Legislature of chapter 2 of the Laws of 1896, entitled An act for the conversion- of the New York, city asylums for the insane into, a State hospital and to establish. the 'Manhattan State Hospital,” when the city, in pursuance of the terms of, tliat act, leased the island and the improvements thereon to be used by the State solely as a State, hospital for the. insane. The act provided that the lease might be terminated by the,' city upon giving ,fifteén years’ written, notice* and such' notice was.given, on Hovember. 19, 1897. The condition, of the title of. Ward’s island , thus is that the city of. New York owns the fee subject to a condition that it shall be used forever for general charitable purposes, and the State of HeW York-holds a lease, expiring in Hovember, 1912, condi
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to confirm the report of the commissioners granted.
Patterson, P. J., Ingraham, Latjghlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion- to confirm report granted.