19 Wend. 659 | N.Y. Sup. Ct. | 1839
First as to John Street. I. C. Stockton Halsted, in behalf of Magdalena Hughes, objects to that branch of the report which takes for the purpose of this street one sixth, being her undivided interest in certain lands, and awards her share of the damage, $1338,33 to James J. Roosevelt & Son, as the mortgagees of her and her husband. She is the daughter of Ahasueras Turk, deceased, who, in 1806, devised this land in fee to her and five others, in remainder after the death of her mother, who died September 4, 1837. In order to facilitate the division, the will provided that, within two years after Mrs. Turk’s (the mother’s) death, and on certain events which have happened, the land should be sold and the proceeds divided equally among the six devisees. In 1828 Mrs. Hughes joined her husband in a mortgage of her interest to Roosevelt & Son, to secure a debt of her husband amounting to $849,12, payable, with interest, at or before the end of two years after the death of Mrs. Turk. Therefore the commissioners awarded so much of the $1338, as would pay the mortgage, to Roosevelt & Son. The mortgage was duly acknowledged by Mrs. Hughes, a feme covert, and was sufficient in form to pass her interest. It is settled that the commissioners may assess damages in favor of mortgagees as they have done here. Astor v. Hoyt, 5 Wendell, 603. The only question made on the argument was, whether Mrs. Hughes had such an interest as was mortgageable. Of this there can be no doubt. See 1 Pow. on Mortg. Rand’s ed. 17, a. Mrs. Hughes took by the will, a legal estate in fee, subject to a power of sale. Had a sale been made, the consideration money would have been substituted for the land, upon which money the mortgage might still have operated, under the doctrine of conversion. Her right is not even embarrassed by a trust; but only a power which will be relinquished pro tanto by taking the land for a street.
The objector suggests, that the money is not yet due. That it has not yet become payable in the terms of the mortgage makes no difference. The corporation must see to the discharge of this prior incumbrance, in order to se
II. No. 164, and other property. Estate of John Gardner, ■deceased. Messrs. Smith and Bennett made an affidavit that, in estimating the costs of repairing the stables under the direction of the commissioners, they made a mistake. On producing their original sworn appraisal, it appears that in the appraisal, they treated the buildings as being subject to total destruction by the improvement, and assessed damage accordingly. The commissioners had a right to regard their last affidavit as of no force after such discrepancy.
The affidavits of the owners, Kettletas and McCarty, are also produced, to show the amount of their damage in various particulars. They are parties in nature of plaintiffs, claiming damage against, the corporation; and are, therefore, incompetent witnesses. Several other affidavits are produced tending to show, by general estimates, and from various particulars, that the allowance made by the commissioners was too small. But these are open to observations which the commissioners were more competent to make than I can be ; and I am not prepared to say that the allowance was unjust. I shall hereafter consider more at large the force which we must assign to the report where it conflicts with estimates presented by ex parte depositions.
III. Andrew C. Zabriskie, No. 187, Broadway, opposite John street. This lot was assessed for benefit; and to that Mr. Zabriskie objects, inasmuch as the charge of his relations to John and other streets will be detrimental. Several deponents occur with him in the views suggested by his remonstrance. The commissioners have had these views and the proofs, under consideration, in connection with their local knowledge and other means of applying and appreci
IV. Hannah Jackson, Nos. 234 and 235, Pearl-street, and No. 249 Burling Slip. These lots are also assessed for benefit; and the proofs in support of the objections, that they should not 'be so assessed, or that, at least, they are assessed too high, are open to the same observations as those in the case of Mr. Zabriskie, with some others. Several of the affidavits are incompetent, as being made by Mrs. Jackson and others claiming to be owners. Mrs. Jackson says these lots are assessed in the wrong names, J. & H. Jackson, whereas she is the life tenant, and T. J. F. Jackson, W. H. Jackson and others named, are entitled to various interests in remainder. The mistake in the names would be more important were the assessments for damage. The lots are fully described in the commissioners’ report; several of the persons in interest are actually apprized of the assessment against them; and probably the mistake will work no prejudice. The real owners are certainly not concluded by it as to their title ; and may raise the lien imposed by the assessment, though their names are, as it seems probable, omitted. The proof of the mistake too, is not very satisfactory. Pretty much all of it comes from the affidavits of persons claiming to be owners adversely to
V. Baltus Moore, No. 66 Broadway. All the objectors concur in denying the constitutional right of the corporation to take, as their own private property, a triangular piece of land at the south corner of John-street and Broadway, which would, if the corporation have no right to it, operate as an extension of Baltus Moore’s lot 66, which adjoins the triangle (67) on the south. The triangle is set down, in the report, as belonging in fee to unknown owners, subject to a right of way; it is reported as taken for the purpose of closing and straightening John-street, and converted, for that purpose, to the use of the mayor, alderman, &c. of the city. The commissioners estimate and assess the loss and damage to the unknown owners by reason of the closing and straightening, and by and in consequence of the relinquishing of the interest of these unknown owners so required for the purpose of closing and straightening, and converting the same, &c. as aforesaid, at the sum of one dollar. The commissioners then assess the benefit, &c. of the corporation, in consequence of the triangle being converted to their use, at 15,000 dollars. This branch of the reportiis in virtue of the act of April 20, 1818, Session Laws, of that year, p. 201, Laws relative to the city of New-York, ed. of 1833, p. 714. The act recites that it had been represented by the mayor, alderman, &c. of the city that there were within the city, roads, streets, lanes and alleys, and parts of streets, roads, lanes and alleys, which might be closed without detriment to the public, and that they were willing to pay to individuals all the damages which they might sustain in consequence of closing the same. It then provides; section 1, that the corporation may, whenever they shall judge proper, apply to this court, which is required to nominate and appoint commissioners, who are to make an estimate of
It is not denied that the commissioners have, in the instance under consideration, literally followed the directions of the statute. Their appointment was for the double purpose of straightening and improving John street, under the act of 1813, 2 R. L. 408, Laws relative to the city, p. 722, and of transferring to the corporation a title to the land, from which parts of the old street might be withdrawn, pursuant to the act of 1818. It was contended in argument, that the true meaning of the statute is confined, either to the total discontinuance, or the shortening of streets, &c., and that it should not be applied to the strips of land excluded by the operation of straightening. But these strips are parts of streets; and equally capable of enclosure, physically speaking, with a whole street, or a part extending from side to side, Beside, § 8, which provides for a union of the two proceedings, seems more plainly to.contemplate that strips on the side may thus fall to the corporation. The question therefore, I think, comes to that which was mainly discussed in argument: whether these provisions for taking land from the owners and transferring an absolute fee to the corporation, be not incompatible with that part of the state constitution which declares that no person shall “ be deprived of life, liberty or pioperty, without due process of law; nor shall private property be taken for public use without just compensation.” Art. 7, § 7. It was conceded that if this proceeding be not by due process of law, within the meaning of the constitution, and if it be not a taking of property for public use, or in other words, an exercise of the national right of eminent domain, then, so much of the proceeding as reposes upon the act of 1818, must be set aside or treated as a nullity. The question is less material in respect to John than Cherry street, where a similar proceeding has been taken by the corporation, except that they are not taxed on account of the land acquired, The proceeding in the latter street, affects several individuals by interposing narrow strips of corporation property, between them and the straightened street. They complain that the cor
Second : As to Cherry-street. This case has been several times before the commissioners, and comes here on appeal from the final report. It contemplates the widening and straightening of Cherry-street, about the whole distance between Franklin-square and Catharine-street. Many of the buildings on both sides must be cut off, to an extent more or less. Between Roosevelt-street and James’ slip, on the south side, the proposed street recedes from the buildings, leaving a strip of one, two, three and four feet, &c., at different points intermediate that and the buildings. This strip, the report assigns to the corporation in fee, and all the different parts are appraised as belonging to unknown owners subject to a public right of way. To each set of these supposed unknown owners is awarded one dollar as the value of the land; the adjoining owners, thus cut off from the street, being at the same time assessed for benefit.
I. Some considerations were thrown out in argument against the policy of the improvement, &c. But that was a matter for the corporation to decide. The appeal is not from their doings ; and the objection can not, therefore, now be considered. 2 R. L. 408, 9, § 177. Laws relative to the city, ed. 1833, p. 722 to 724. Matter of Albany-street, 11 Wend. 149. My impression is that in this respect their decision can not be reviewed in any way, on account of a defect of evidence; though doubtless a certiorari would lie
II. Some of the affidavits express an opinion that, to warrant an assessment sufficient in amount to meet the expense of the improvement, it should have been confined to one side of the street; but these opinions come mainly, if not entirely, from parties interested. If otherwise, the opinions are few, and however respectable the deponents, and however enlarged their means of judging, the opinions cannot be received to weigh down those of the commissioners. The objection is perhaps well founded in principle. Fourth Avenue, 3 Wendell, 452. But the fact upon which it is to be sustained, must be clearly made out.
III. The same remarks are applicable to the opinion expressed by some of the deponents, that assessments for benefit should have been extended the whole length of Cherry-street, and that they are two much restricted in respect to other streets supposed to derive material benefit from the improvement.
IV. A great number of objections are interposed by individuals that, in their respective cases, the damages are estimated too low, or the benefit assessed too high ; and these objections are supported in various ways. In some cases the owners themselves have made and submitted affidavits, giving their own estimates, &c. These are not competent evidence. In a majority of the cases, a few affidavits of disinterested persons are produced, expressing a general opinion as to the amounts of benefit or damage, in conflict with the amounts estimated or assessed by the commissioners. Some of these come from persons holding themselves forth as competent judges, while others make no pretensions to extraordinary skill in such estimates. Others are more particular, basing their estimates on cpnsiderations of what they esteem the additional business advantages to be derived from the improvement, or the want of these; the expense consequent upon the necessary removal, contraction, taking down, restoring or repairing of buildings, &c. &c. Admitting the
I had occasion in the late case of the widening of Pearl street, ante, p., 651, to say something on the weight which I thought due to the class of ex parte depositions ; and I think I went the utmost length in that case, if not beyond what I ought to have done. Among other matters, a small piece of land, the Baehr estate, the most valuable in the city, (lying at the corner of Wall and Pearl streets) was carried by the depositions to an amount far beyond what had been allowed, and other commissioners had but just before allowed much higher for adjoining land of the same estate, though apparently of no more real value, which had been taken for a contiguous improvement upon the same corner. I sent it down for re-estimate, and the commissioners allowed an additional amount. This was at a time when prices were at the very highest, and I entertain little question that the commercial revulsion, and consequent fall of prices which soon after ensued, and which the commissioners most probably foresaw more distinctly than myself, would demonstrate that according to the actual result, we both marked too high.
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These reports of commissioners in respect to values, are in the nature of a verdict of a jury upon a question of fact, which is never set aside as against evidence, unless it appear affirmatively and clearly to have been unwarranted by the proofs. There is more difficulty in showing this against the commissioners’ report, because, from the nature of the proceeding, they must make a more free use of their private knowledge than jurors are warranted in doing. The latter are confined to action upon their general knowledge ; and cannot go on their knowledge of particular facts without being sworn and communicating them as witnesses. Rex v. Rosser, 7 Carr. & Payne, 648. Admitting every thing, therefore, to have been regular, I should hardly deem the report impeached upon its merits in any matter of valuation.
I should feel myself warranted in coming to this conclu
As this case of Cherry street may come before us again, on questions of value, I have thought it proper to notice the
..... But I am satisfied that all the individual objections involving values of repairs, alterations and removal of buildings on this street must be reheard, upon the ground that the estimates of the appraisers were received by the commissioners without being sworn to. They appear to have remained without verification by oath till after two reports were made up and signed, as was admitted on the argument; nor was it denied that the commissioners relied on this appraisal as a material means of information. To what extent it may have affected the whole proceedings is impossible to say. These proceedings are usually ex parte up to the time when the report is signed, deposited and advertised. Parties are not before the commissioners, so that we can impute a waiver of formality in the proofs, as on an ordinary trial or reference ; and where the duty of inquiry is, as it must often be, delegated to skilful men in order to elicit information upon numerous and important particulars, their report should not be received and acted upon till after it is duly verified by their oath. Here is no room for intending that the commissioners governed themselves by other lawful means of inquiry. The counsel for the corporation admits that this report formed a ground of action, and it relates to numerous and important interests. The appraisers come as witnesses, and regularly should have been sworn by the commissioners, who doubtless have the ministerial power to administer oaths to witnesses at the common law; but the power is also, in this instance, expressly given by statute. Laws relative to New-York city, ed. 1833, p. 748, 938. Act of April 20, 1818, Sess. 41, Vol. 4, c, p. 196. That the commissioners may add to their stock of knowledge necessary to the proper discharge of their duties by proper inquiries addressed to persons not on oath, may be admitted, Spring Garden street, 4 Rawle, 192-4, but coming to the particular damage of cutting away buildings on a street, &c., if they do not themselves personally perform
The question remains whether the reports as to both these streets must not be referred back for re-consideration in respect to those lands which were awarded in fee to the corporation as its private property. If so much of the proceedings as relate to such lands be void, it was yet supposed by the counsel for the corporation that the report might stand at least for the residue. But it is evident that, if so much fails, it may result in the necessity of material alterations throughout. It seems to me that must be so of Cherry street, wherein the damages will be less, and the benefit greater in respect to a considerable number of lots, provided the land from which the street is to be withdrawn result, as it will, to the adjoining owners. It may be differ
The important question is, whether the act of 1818 be constitutional. I have before stated the material provisions of that act, with the manner in which the corporation now seek to apply it, and the reasons why I think it does apply in its terms and spirit to the side strips of land awarded by the report to the corporation. I have also stated that part of the constitution with which it is supposed to conflict. The report concedes that the land thus awarded does not belong to the corporation, but to individuals who are denominated owners unknown. Upon what principle or what authority the commissioners concluded that the adjacent owners had no title, I am neither informed by the report, nor was any reason given on the argument. These streets are admitted to be ancient. They were not laid out under the statute which gives a fee to the corporation in trust for the public use. Sess. 30, ch. 115, § 9. 2R. L. 414. Vide Matter of 17th street, 1 Wend. 262, 269, 70. There the seizin of the owner may perhaps be in subordination to the trust fee of the corporation. But it can not be denied that the rules of law by which the rights of owners adjacent to other public highways are governed, apply with full force to the streets now in question. These rules are that the adjoining owner is, prima facie, and indeed of common right, also owner to the centre of the road, subject to the public right of way only. Woolrych on Ways, 5, 6, and the cases there cited. 3 Kent’s Comm. 432, 3, 3d ed. and cases there cited. And it follows that when the way is discontinued in part or in whole, the land over which it ran results pro tanto in full and unqualified dominion to the adjacent owner. Hooker v. The Utica Minden T. P. R. Co., 12 Wendell, 371, 3, per Nelson, J. The proprietors therefore have at least been misnamed, and the compensation improperly awarded in this respect, admitting, the statute to be valid.
It is said that the city of New-York is a public corporation, and that therefore all its property is for public use. The argument is equally applicable to all municipal corporations, by which the state is covered. If it be good for a city it is equally so for a county, town or village, all of which may become legislative purchasers on summary appraisal, and then sell out to individuals using the avails for the good of the corporation. Such a construction would make the constitutional clause a dead letter. Beside, this argument is answered by the case of Albany-street.
It is said also that much property has from time to time been taken at nominal prices by the corporation under the statute in question ; that they have always sold to the adjacent owners at the nominal prices which they gave, and will doubtless do so in this instance. But they may refuse, and sell to third persons. Laws of this character, like all others, are made to guard against what people may do ; and not trust to what they will do.
It is further urged, that closing part of a street is as much a public purpose as the opening or widening ; that correcting the sinuosities of the sides of the streets, which arise from the alternate receding and projection of buildings, is necessary for the public convenience. The plain answer is, that, admitting the convenience, an absolute fee in the corporation is not necessary for the purpose. The sides can be rendered straight by a fence, to be continued till the building shall be carried out to the street line. The argument would, in its utmost force, entitle the corporation even to build a fence no longer
The result is that the report in the case of both John and Cherry-streets must be referred back for reconsideration and correction, by assigning and assessing the lands now awarded to the corporation, to the adjacent owners.
And in the case of Cherry-street, the report must be referred back generally for reconsideration as to all the objectors.