60 N.Y.S. 200 | N.Y. App. Div. | 1899
In December, 1891, Thomas E. Gilroy, as commissioner of public works of the city of Sew York, in pursuance of chapter 490 of the Laws of 1883, and the laws amendatory thereof,- providing for new reservoirs, dams and aqueducts' for the purpose of providing the city of Mew York with pure water, filed a map for the construction of what is known as the Cornell dam in the town of Cortlandt, county
The town of Cortlandt commenced an action against the city and applied for an injunction restraining the city from destroying its highways. Before the motion was heard the attorney for the town and the counsel for the city entered into the following stipulation: “ It is hereby stipulated and agreed that the above action be discontinued, and that any claim the town of Cortlandt may have against the city of blew York by reason of the taking of the highways, known as the Croton River road, at or near the blew Cornell Dam, and the building of the highways shown on the map,' entitled "Map of Proposed Road around blew Croton Dam, Cornell site, made by A. Fteley, Chief Engineer,’ and dated January 17, 1895, be presented to the Honorable D. W. Travis and others, Commissioners, appointed under the fifth supplemental petition for the appointment of Commissioners of Appraisal of the Cornell Dam, and that such Commissioners hear the proofs in relation to such claim and make award therefor.”
Testimony was submitted to the commission showing that the length of the old highways destroyed was about two miles, and the length of the new highway constructed by the city was more than three miles. The commissioners made their report determining that $678.35 was a proper sum to be paid to the town “ annually for the taking of said roadway or highway, and in full satisfaction of all
The report of the commissioners and the order of the court provided that the award should be made upon the condition that prior to any payment under the same, the town, pursuant to law, should discontinue the use of the old highways referred to in the stipulation, and should accept the new highways constructed by the city;' and this the town has done, so that the new highways form part of the highway system of the town.
It seems clear that the award of an annual sum to the town was based upon the theory that it had suffered no other damage than the additional burden of maintaining an increased length of highway. It does not appear that the town owned the bed of the highway, and, hence, it sustained no damage by the'taking of the land for the use of- the city.
Upon this appeal the town contends that the stipulation was a common-law submission to the persons composing the commission, and that the principles which relate to such arbitrations should control, and that such award cannot be set aside. W e cannot assent to this view, as the town submitted its-claims to the “ Commissioners of Appraisal of the Cornell Dam,” and not to the individuals thereof. Our decision must proceed upon the theory that the claim of the town had been brought before the commission in the - same way as other claims under the statute, and that the stipulation did not constitute an arbitration.
The appellant contends also that the language of the statute (§ 15)
This brings us to the consideration of the main question involved in the appeal. The duty of maintaining all the highways in the town of Cortlandt is imposed on the commissioners of highways of that town by the Highway Law (Chap. 568, Laws of 1890). As the town has legally accepted the new highway, it, and not the city, is bound to maintain it, unless this duty is imposed upon the city of Hew York by the act in question. The act compelled the city to build the highway. When the city fulfilled its obligation to construct the highway, and turned it over to the town, its legal • obligation as to maintenance terminated. The Legislature has the power to change the use of public property, like highways, at will, or to discontinue the use of such property, and this was the effect of the act in question. (People v. Kerr, 27 N. Y. 192.) The intention is manifest from an analysis of section 36 already quoted, which requires the city to build and construct necessary highways and bridges, but only requires it to repair and maintain the bridges, and does not require it to maintain the highways. It was the clear intention of the Legislature that the expense of maintaining the ,highways should not devolve upon the city.
The Laws of 1883, chapter 490, section 8, authorize the court to appoint “ commissioners' of appraisal to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate laid down on said maps, as proposed to be taken or affected for the purposes indicated in this act.” Section 24 of the same act, amended by chapter 196 of the Laws of 1887, defines the term “ real estate ” as including “ all real estate * * * heretofore or hereafter acquired or used for railroad, highway or other public purposes, providing-the persons or corporations owning
It is evident that the Legislature intended that where the highway was destroyed another highway should be substituted by the city of New York, and the silence of the act in reference to the subsequent maintenance of the highway clearly evinces an intention that such maintenance should devolve upon the town.
In Matter of Furman Street (17 Wend. 649) it was held (at p. 659) that “ the right to take private property for public use is not conferred by the Constitution. It is a right inseparably connected with the sovereign power of the State, in whatever hands that power may reside; and the Constitution has only regulated its exercise by requiring that just compensation be made to the owner.”
In People v. Kerr (27 N. Y. 188, 192) the court said: “ So far as the’ existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little reflection will show that the Legislature has supreme control over them. When no private interests are involved or invaded, the Legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles or to the use of particular motive power. ' It may change one kind of public use into .another, so long as the property-continues to be devoted to
Under these authorities it is clear that the Legislature had the power to provide for the closing of the old and the substitution of the new highway, without imposing upon the city of New York, for whose benefit the dam was constructed, the expense of maintaining the new highway.
We have not lost sight of the argument that inasmuch as the annual award was made to the town upon the condition that it discontinued the use of the old highway and accepted -the new highway, compliance with such conditions' created a contract between the city and the town, and that the city, having accepted the' benefits resulting to it from the discontinuance of the old highway and the use of the land over which it ran, as a part of the water system of the city of New York, must also accept the burdens imposed by the commissioners. Under the decisions already cited this is a matter in the control of the Legislature, which had the power to impose the burden of maintaining the new highway upon the town, with or without any discontinuance of the old highway. It might have imposed the burden upon the city, but it has in plain language evinced the intention not to do so.
It follows that the orders should be affirmed.
All concurred, Bartlett, J., in result.
Orders affirmed, with ten dollars costs and disbursements.