304 N.Y. 215 | NY | 1952
Lead Opinion
The City of New York brought this proceeding under title E of chapter 15 of the Administrative Code of that city, entitled “ Street Closing Condemnation Procedure ”, pursuant to resolution of the board of estimate, for ascertainment and payment of compensation to owners of property affected or taken by virtue of the closing and discontinuance of Gillen Place, a street in Brooklyn. Claims were filed by Consolidated Edison Company of New York, Inc., and the Brooklyn Union Gas Company for alleged damages to their franchises and to mains and services located in said street.
After the hearing of objections, a final decree was made awarding damages to said claimants measured solely by the cost of relocating claimants’ facilities. As to Brooklyn Union, an award was therefore made only for its twenty-inch main, the relocation cost of which was stipulated, no award being made for its six-inch main, which was abandoned and regarded by the court as antiquated. As to Consolidated Edison, the cost of relocating its facilities was also stipulated. The Appellate Division unanimously affirmed the final decree. Both the city and Brooklyn Union have appealed by our leave.
The basis for Special Term’s finding that the street closing herein was for a proprietary rather than a governmental purpose appears in the official documents pertaining to the closing of Gillen Place, which make it manifest that it was not a highway purpose which inspired the action taken. Thus, the city planning commission stated that the borough president proposed the closing “ in order that the closed street area may be consolidated with abutting Board of Transportation properties.” The layout plans for a proposed bus garage and shop on said property “ indicate that the proposed structure will occupy the bed of Gillen Place.” The report noted that “ Gillen Place is in use and improved but its closing and discontinuance appear to be unobjectionable ”, and stated that the commission had “ determined that the map is an element in
Street closing statutes have as their primary purpose the securing and preservation of the “ regularity and uniformity of the streets ” (Administrative Code of City of New York, § E15-3.0, and its prototype, L. 1895, ch. 1006, as amd. by L. 1923, ch. 752). Such a purpose is governmental, and the act of closing a street is to that extent a sovereign one (Matter of Mayor of City of N. Y. [Deering], 28 App. Div. 143, affd. 157 N. Y. 409). The city contends that this street closing condemnation proceeding is founded on “ public necessity ”, and that the city, as condemnor, is not required to pay claimants any compensation. It is said that the motive for its action is immaterial, so long as the necessary findings are made to support it, i.e., that the street is no longer necessary. Thus, the city points to the resolution of the board of estimate authorizing the closing, which declared the “ public necessity of discontinuing and closing Gillen Place ”. However, that resolution must be read in the light of the above-quoted section E15-3.0 of the Administrative Code, which does not stop with the quoted words “ public necessity ”, but includes them in this context: ‘ ‘ The city may authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets ” (emphasis supplied).
The ‘1 other public necessity ’ ’ mentioned in the statute may well be applied to necessity arising in connection with the transit system which, though operated in the public interest (see Rapid Transit Law, § 33), is nevertheless proprietary in nature and, as we have noted, involves a city purpose, “ like the building of streets or highways ” (Litchfield Constr. Co. v. City of New York, 244 N. Y. 251, 263). In this proceeding, the city claims that its right to close the street has not been challenged, but this is disputed by respondent Brooklyn Union.
It is true, of course, that street closings usually result in the ultimate appropriation of the land to private ownership, but there is a great difference where, as here found, the very purpose of the closing is to accomplish the devotion of the land to a use by the city which, although in the interest of the public, is nevertheless proprietary. The plain facts are that claimants have been forced to abandon their installations in Gillen Place and reconstruct them elsewhere and for a much greater distance in order to make room for the bus garage and shop, and in such circumstances they are entitled to be compensated for their loss (City of New York v. New York Tel. Co., 278 N. Y. 9; Los Angeles v. Los Angeles Gas Corp., 251 U. S. 32; Matter of Board of R. T. R. R. Comrs. of City of N. Y., 197 N. Y. 81, 96-97; Litchfield Constr. Co. v. City of New York, supra; Postal Tel.-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 251 N. Y. 562; New York & Queens Elec. Light & Power Co. v. City of New York, 221 App. Div. 544). As we said in Transit Comm. v. Long Island R. R. Co. (253 N. Y. 345, 352) “ when the change is required in behalf of other public service corporations or in behalf of municipalities exercising a proprietary instead of a governmental function ”, the common-law rule that utilities maintain their installations in public streets subject to the risk of relocating them at their own expense when public necessity so requires, does not apply.
Assuming, however, that the street closing proceeding was instituted to secure uniformity of the city street system, in the exercise of governmental power, still by reason of the statute claimants are not bound by the common-law rule as reasserted in such cases as Consolidated Edison Co. v. State of New York
In thus defining claimants’ subsurface structures, consisting of mains and conduits, and the franchises under which they were laid, as real property, for which compensation must be made if
“ In. the nature of incorporeal hereditaments, at common law, franchises partook of the nature of realty and these special franchises are inseparable from real property in their enjoyment. They fall, necessarily, into that one of the two general divisions of property made by the statute, which is described as real estate [referring to what is now Real Property Law, § 2] * * *
“ These franchises could never be classified as personal property ”.
It should also be noted that the statutes provide that, upon the opening of a street, land taken which is subject to an easement of this nature in favor of a utility company, such as are claimants here, must be taken subject to such easement (Administrative Code, § B15-39. 0). In this we find clear legislative recognition that the property in suit is an easement burdening the bed of the street, for how can the right be different in
While there are cases which seem to hold that this class of property should not be treated as real property, they dealt with special situations under the tax law, where the statute has always been regarded as special and specific in its definitions. Thus, in People ex rel. Citizens’ Gas-Light Co. of Brooklyn v. Board of Assessors of City of Brooklyn (39 N. Y. 81, 87) we emphasized that “We must look to the statute instead of the common law, in determining whether these iron mains which run under the streets of the city are to be regarded for the purposes of taxation as real estate or not, as it is a matter of statute regulation entirely.” It was then noted that the definition of real property contained in the statute was very limited, and did not (as here) include incorporeal hereditaments, or structures such as the main (cf. present Tax Law, § 2, subd. 6.)
From the foregoing, it follows that the formal closing of a street extinguishes the interest therein which inheres in the special franchise. That this is so appears from the fact that since 1895 such proceedings have been intended to extinguish all easements, both public and private (Stirnweis v. Cacioppo, 258 N. Y. 68; Matter of City of New York [Newton Ave.], 219 N. Y. 399, 406; Barber v. Woolf, 216 N. Y. 7; Matter of City of New York [Grand Blvd.], 212 N. Y. 538).
Even at common law, then, it would seem that the closing of a street would work a pro tanto destruction of claimants’ easements and franchise rights for which compensation should be made (New York Tel. Co. v. State of New York, supra; Rochester & Lake Ontario Water Co. v. City of Richester, 176 N. Y. 36, 50; Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84; Matter of City of New York [E. 42nd St. Elev. R. R.], 265 N. Y. 170; see, also, New York City Charter, § 363).
The rule as to relocation, referred to in such cases as New York City Tunnel Authority v. Consolidated Edison Co. (supra), has been applied in the past only to situations where there was truly regulation, rather than a taking by condemnation. In each such case the utility was required to relocate, but its rights in the particular street remained in being, the relocation therein being merely to accommodate some street improvement. When a street is closed, however, all rights therein are extinguished;
In any event, under the controlling statute, claimants are entitled to be compensated for their loss, and cases cited from other jurisdictions are not helpful here. Such loss has been properly measured not merely by the intrinsic value of the pipes and conduits in the soil, but by the actual loss to claimants of the right to unobstructed passage through the street in question. As we said in People ex rel. Metropolitan St. Ry. Co. v. State Bd. of Tax Comrs. (174 N. Y. 417, 441, supra), “ Separate [the items of tangible property] from the franchise by taking away the street privilege, and they are destroyed.”
For the foregoing reasons, we conclude that compensation has been properly granted to claimants (City of Little Falls v. State of New York, 198 App. Div. 488; City of New York v. New York Tel. Co., 278 N. Y. 9, supra; United States v. 25.4 Acres of Land, 71 F. Supp. 255, 258, affd. sub nom. United States v. City of New York, 168 F. 2d 387), and upon this record no serious question is presented as to the amount.
As to Brooklyn Union’s appeal from the order of the Appellate Division insofar as it affirms that part of the final decree which failed to make an award for the six-inch main and its appurtenances not relocated, we are also of the opinion that upon this record the courts below must be affirmed. Brooklyn Union did not ask for any compensation for' the twenty-inch main that was left in the street, but only for reconstruction costs, which were allowed. This reconstruction, it would appear, fulfilled all the requirements by way of replacement of its installations in Grillen Place. The trial court had the right to deem the six-inch main “ antiquated ” and abandoned and of no value, and, since it was not relocated, its failure to make an award cannot be said to have been unjustified.
The order should be affirmed, with costs to respondent Consolidated Edison Company of New York, Inc., against the City of New York.
Dissenting Opinion
(dissenting). The present proceeding was brought by the City of New York to close and acquire title to Grillen Place, a public street in the Borough of Brooklyn, preparatory
The procedure for closing the street was conducted in accordance with the “ Street Closing Act ” (L. 1895, ch. 1006; L. 1923, ch. 752), as embodied in the Administrative Code of the City of New York (§ E15-1.0 et seq.). Preparatory to closing Grillen Place, the city’s planning commission held a hearing on the proposed change of the city map — the essential preliminary step — and concluded that the change should be approved as “ an element in the formal process of closing and discontinuing an unnecessary street in order that the street area and the abutting City-owned property may be consolidated to permit expansion of City transit storage and repair facilities.” There was no opposition.
The present proceeding was thereupon commenced by the city to accomplish the closing and to obtain title to the bed of the street. Both these purposes are comprehended by the street closing law which provides that the city may “ authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets ” and also “ acquire the fee title to lands within closed streets * * * whenever it may deem that such acquisition will more effectually secure the actual discontinuance and closing of streets which may be legally discontinued and closed pursuant to this title, or when other public necessity requires the acquisition thereof.” (N. Y. C. Administrative Code, § E15-3.0.)
And, in line with such principles and with such reasoning, the courts of other jurisdictions have held — without considering the use to which the land was to be put — that the displaced utility must bear all costs of relocation. (See New England Tel. & Tel. Co. v. Boston Term. Co., 182 Mass. 397; Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., 87 Ind. App. 74; Central Dist. & Print. Tel. Co. v. Pittsburgh, M. & Y. R. R. Co., 55 Pa. Super. Ct. 237; cf. Taylor v. Portsmouth K. & Y. St. Ry., 91 Me. 193, 198.) Thus, in New England Tel. & Tel. Co. v. Boston Term. Co. (supra, 182 Mass. 397) —a case very like the one now before us — several public streets were discontinued, and the land in the bed thereof appropriated for the site of a railroad terminal station. As in the present case, several utility companies claimed compensation for the enforced removal of their underground facilities from the closed streets. In denying the claim, the court held that
An Indiana court likewise denied a public utility’s claim— asserted against the fee owner of the land in a closed street— to damages for the cost of the removal of its poles and wires necessitated by the closing (Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., supra, 87 Ind. App. 74, 77): ‘‘ Any member of the public conveying his products to his customers had the same right to use the alley that appellant had, and appellant was no more entitled to compensation for removing its personal property from the location when it ceased to be a public place than was any other public user who was excluded therefrom by reason of such vacation.”
It is, however, here contended that the proposed use of the street for the benefit of the transportation system is such a
An alternative ground urged by claimants is that the statute expressly provides for such payment.
It may be conceded that the legislature could have required such payment as a condition for the discontinuance of streets. But that it would do so, that it would require such payment is exceedingly doubtful. Claimant utilities had no interest in the bed of the street. Their occupancy was merely derivative from the former street use. They were not abutting owners, and therefore contributed nothing either to the cost of acquisition of the street or to its maintenance. It is difficult to see the basis on which the city should compensate the occupant for the loss of a privilege which was obtained and maintained entirely without cost or expense. In my opinion, the statute, when reasonably construed in its context, makes no such provision. As already noted, the statute provides that the city, in addition to closing the street, “ may acquire the fee title to lands within closed streets ”. This is an ordinary condemnation proceeding. The statute requires payment for real property taken or damaged. But here there was no property of claimants taken or damaged. The city did not want the wires, pipes, mains and the like, and it did not specify them as property to be taken. Nor did the city damage this property. It is true that it became necessary for claimants to remove their property, but that, as already pointed out, was a consequence of the closing of the street, not of the acquisition of the “ fee title to lands within closed streets ”.
In point of fact, claimants did not own any real property affected by the acquisition of title to the bed of the street. It is true that real property is here defined as including “ all surface and subsurface structures within closed streets and all easements and hereditaments, corporeal or incorporeal, and. every estate, interest and right, legal and equitable, in lands, and every right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise ” (N. Y. C. Administrative Code,
Moreover, strictly speaking, the question is, not whether the franchise together with the use may be considered to be an interest in land, but whether the facilities in the bed of the street represent an interest in land after the right to maintain them is gone. The general franchise to use all streets, which these claimants possessed by reason of their charters and applicable
I would, therefore, reverse so much of the order appealed from as grants compensation to claimants.
Loughran, Ch. J., Lewis, Conway and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents in opinion in which Desmond, J., concurs.
Order affirmed, etc.