17 Barb. 617 | N.Y. Sup. Ct. | 1854
On the 4th of June, 1851, & resolution of the corporation of ISTew-York was approved by the mayor, which directed that Wall-street, on the northerly side,
The bank contracted to purchase this lot of ground, with the buildings then on it, January 31,1851, for $110,000, and made
As the map of the property to be taken was not made until the 17th of .September, the commissioners could not have begun to estimate the damages to the respective owners before that time. The map was essential to show them how much was to be taken from each owner, and how it would affect the rest of his property. The commissioners could hardly view the lands to be taken, until a survey should show what was to be taken ; and by the act under which they proceed, they are required “ after having viewed the premises,” and after causing surveys, &c. to be made, to proceed and make a just and equitable estimate and assessment, (§ 178, p. 410.) By the 28th of July, when the order appointing the commissioners was first entered) the building had been erected to the upper part of the first story above the basement; and by the 2lst of August, and before the commissioners could have commenced their estimates, it was erected to the top of -the 2d story; and. by the 17th of Septem-. her, when they might have began, it was probably erected to the top of-the 3d story. Tet it was insisted that for all this value, which was not placed on the property in opposition to any law, the bank was entitled to no compensation.
A somewhat similar case occurred in the matter of opening
The principle adopted in this case was that neither the value of property when the law condemning it to the public use was passed or took effect, nor when the land was specially ordered to be taken, nor when the commissioners to estimate its value were appointed, was to be the rule of estimating damages; but the permanent value about the time of the completion of the report. The act referred to, shows that this last period, or one near it, is the correct one; for it directs the commissioners 11 after having viewed” the lands, tenements and premises, and “ after causing all surveys, maps, profiles, plans and other things as they may judge necessary, to be made,” then to proceed and make a just and
In this ease the bank did tear down a costly building which was on their lot; and this was not done until after the first of May. If they had delayed this work of destruction until the day after the resolution to widen the street had been passed, or the day after the commissioners were appointed, and the commissioners began their estimates a month after the destruction was completed, does any one suppose that the commissioners ought to have allowed the bank for the value of that part of the old building which had covered these premises'? Or if a storm, or fire, had destroyed the old building, at the time supposed, would the commissioners then have been bound to allow for its value ? If they were not to adopt a value prior to the time of the estimate when it would favor the owner, they should not adopt it when it would injure him.
The cases of Jackson v. The Mayor of Brooklyn, and. of Silliman and Hicks v. The Same, decided in the court for the correction of errors in December, 1848, and affirming the decision!
In like manner the act relating to the city of New-York, (2 R. L. of 1818, p. 414,) provided that no compensation should be made for any buildings which, at any time subsequently to the filing of the maps of the upper part of the city, should be erected pn any street or public square designated on that map. In each
In the lower part of the city there is no statute establishing permanently the lines or corners of streets. The same act which authorized the laying out of the upper part of this city, and the opening of streets there, and prohibited compensation to those who should build on the scite of the streets then laid out, also authorized the corporation to extend, enlarge, or otherwise improve any street in the lower part of the city, but imposed no restriction on the right of the owners in the lower part of the city to receive compensation for their buildings, no matter when they should be erected. This, by implication, leaves to the owners in the last case the general rights to improve their lands when and as they will, until those lands shall be finally occupied by the public.
The public do not bind themselves to adopt an improvement, either by passing a resolution to have it done, or by having commissioners appointed to carry it out; nor by any other act short of a confirmation of the commissioners’ report by the supreme court. At any time before that confirmation the corporation may discontinue the proceeding. (Matter of Canal-street, 11 Wend. 154. 20 Id. 618. 18 John. 546.) How unjust it would be to require every owner to refrain from building on his own land, or to conform his new building to a plan merely proposed by the corporation, when the proceedings might be delayed (as the Canal-street extension has been) for several years, and when the corporation might on its own will then abandon the improvement, after the new building had been made to conform to the proposed plan. In this case the corporation could have discontinued the proceeding at any time before its final confirmation, and in the same period, even against the will of the corporation, the proceeding could be as effectually stayed by a majority of those interested expressing their dissent to the- report. Thus the character of fixedness and permanency which was given by
It is not surprising that a natural sense of justice led two of the commissioners to revolt at the idea of subjecting an owner to such injustice, and that they yielded only on account of the advise of counsél.
In the case of the Corporation of New- York v. Mapes, (6 John. Ch. Rep. 46,) Chancellor Kent refused to grant an injunction to prevent Mapes from building on lands proposed to be taken by a resolution of the corporation, on. the ground that no rights vested until the report of the commissioners should be confirmed; and he said, “ the plaintiffs may perhaps have to pay for the value of the buildings now erecting by the defendants. This is all the inconvenience or loss that the plaintiffs can sustain, and would it not be damnum absque injuria 7 It is a loss which the court cannot prevent without a dangerous and unprecedented interference with the enjoyment of private right. As the case stands, the plaintiffs have shown no right or title, or raised any equity, which can be a ground for an injunction, or by which I am authorized to control the defendants in the usual and ordinary enjoyment and improvement of property to which it is assumed they have an absolute title.” (Id. pp. 50, 51.)
It was said that this was a proceeding in rem, and that the appointment of commissioners operated like a notice of lis pen-dens. The analogy would not favor the appellants. If, in a suit to foreclose a mortgage, a notice of Us pendens be filed; it does not prevent the mortgagor from going on tó improve his property by erecting buildings on it, under any penalty, (like that assumed
Mitchell, Roosevelt and Clerke, Justices.]
It seems to be understood that the corporation have no desire to continue the proceedings, unless the bank shall be compelled to go without compensation for the building. That makes it unnecessary to inquire whether the commissioners’ proceedings are void, as contrary to the resolution of the common council. If the corporation had such desire, it might be necessary to go into this last inquiry also ; as then the proceedings should go back to the commissioners to be corrected.
Order of the special term affirmed, with costs.