141 N.Y.S. 687 | N.Y. App. Div. | 1913
Lead Opinion
Chapter 508 of the Laws of 1884 authorized the Superintendent of Public Works to construct “ a channel or canal between the waters of Shinnecock and Peconic bays, at Canoe place, in the town of Southampton, county of Suffolk,” and for this purpose the Superintendent was authorized “ to enter upon all and singular the land or lands necessary for making, digging and perfecting the said channel or canal and devices pertaining thereto, and to enter into agreements or contracts for the purchase of such land if such agreement can be made and the said land purchased at a fair value.” Then followed the usual provision for filing maps, etc., in the case of disagreement, or of the incompetency of the owners to convey, or of the non-residence in this State of such owners, whereupon the title to such land was declared to vest in the State. The owner of any land so taken, it was provided, “shall be entitled to compensation in damages, to be ascertained and appraised as prescribed by law.” Section 5 of the act then provided that “if it shall be necessary for said superintendent to occupy the lands of any railroad company for the purpose of said channel or canal, or to cut through or to intersect the same, he shall give at least ninety days’ notice of such intention to said railroad company, and in case of disagreement as to the amount of compensation to be made therefor, the same shall be ascertained as prescribed by law.”
The method of ascertaining the amount of compensation • to be paid in cases of this character was prescribed by chapter 336 of the Laws of 1884, which provided that “in the construction or improvement hereafter, of any canal or feeder, whereby the Superintendent of Public Works or other authorized agent of this State shall appropriate private lands, streams or waters, the said Superintendent of Public Works or other authorized agent of the State shall serve upon the owner, owners or occupant of said lands, streams or waters, a written
Acting under the authority of chapter 508 of the Laws of 1884, the State had, prior to October, 1885, excavated the canal nearly up to the Long Island Railroad Company’s right of way through the lands of other owners. It is conceded that the Superintendent of Public Works never served the ninety days’ notice required by the 5th section of chapter 508 of the Laws of 1884 upon the railroad company, and that there was never any written' notice of an appropriation of the railroad company’s land, as provided in section 1 of chapter 336 of the Laws of 1884. As the work approached the railroad right of way the Superintendent submitted to the railroad company plans for the intersection, which plans were disapproved by the railroad company, which sought relief through an injunction, in which it was unsuccessful. (Long Island Railroad Company v. Shanahan, 39 Hun, 657.) The bridge suggested by the Superintendent as a means of carrying the railroad over the canal was constructed, and provided for a waterway forty feet in width, with abutments and other attachments, on the right of way of the railroad company. The exact date of this construction does not appear, but it was probably sometime during the year 1886. In the • early part of 1892 the bridge abutments became unsafe, owing to the action of the tides and currents, and the railroad company, to protect its adjacent right of way, was obliged to strengthen and repair, the structure. It thereupon filed a claim with the Board of Claims in May, 1893, and procured a judgment for repairing and strengthening the bridge, and the bill of particulars appearing in the record shows that this work embraced practically the construction of a new bridge. Prior to the filing of
The action of tides and currents persisted, it appears, and in 1898 the railroad company constructed a new bridge, with a span of 210 feet, upon the site of the old bridge, the plans for such bridge being approved by the State Engineer. This bridge was completed in August or September, 1899, and on the 27th day of April, 1900, the claim now under review was filed with the Court of Claims, and was for an amount equal, it is claimed, to the actual expense of constructing the new bridge. This claim has been rejected, the Court of Claims holding that the recovery under the claim of Hay, 1893, was a bar to the present action. The railroad company appeals from the judgment.
The appellant’s theory seems to be that the judgment in its favor in 1893 was an adjudication under the provisions of chapter 508 of the Laws of 1884, an act providing for the exercise of the power of eminent domain, and that subsequently the State, by means of its negligence, appropriated an additional strip of land, and that out of this wrong arose a new right to compensation under the original statute, and that in some manner it is entitled to take advantage of the failure on the part of the State to give the notices prescribed by chapters 336 and 508 of the Laws of 1884. La this we are unable to agree. When the railroad company submitted its claim under the provisions of the statute above mentioned in 1893 and accepted
As already pointed out, the conditions which it is alleged gave rise to the necessity for the construction of the third bridge, for which the present claim is made, were open and obvious in February, 1893, while the original claim -was not filed until May of that year. The underlying principle of the law of eminent domain, as we understand it, is that private property shall not be taken for public purposes without just compensation, and that such compensation consists “of the value of the part taken, and damages to the remainder, less any special benefits to' such remainder by reason of the taking and use of the part for the purpose proposed.” (Lewis Em. Dom. [3ded.] § 693 [§ 411].) Or, as our Court of Appeals has put it, in reference to lands taken for railroad purposes, the “ owner is to receive, first, the full value of the land taken, and,
Assuming that there was authority under section 264 of the Code of Civil Procedure, as it existed under chapter 36 of the Laws of 1897, to allow a claim as for a continuous trespass upon the premises of the railroad company,.the limitation fixed by the statute was two years, and the claim here under consideration is not based upon a trespass, but is urged on the ground that it is a part of the damages growing out of the original taking of an easement through the right of way of the railroad company. There is no allegation that the damages accrued within the two years next preceding the filing of the claim, and the entire theory on which the case proceeded is consistent only with the claim that the damage is incident to the original appropriation of the railroad company’s right of way for the canal.
The judgment appealed from should be affirmed, with costs..
All concurred, Smith, P. J., in memorandum, except Kellogg, J., not sitting.
Concurrence Opinion
I concur in the opinion of Mr. Justice Wood'ward and would add a single other reason for the conclusion reached. By chapter 508 of the- Laws of 1884 this improvement was authorized. The original appropriation for the building of the canal and the condemnation of necessary rights was made by the State. The act provided in section 8 that “the said channel or canal shall be maintained at the expense of the county of Suffolk,
Judgment unanimously affirmed, with costs.