158 N.E. 881 | NY | 1927
The organization of the Westchester County Park Commission was authorized by chapter 292, *316
Laws of 1922, and, pursuant to the provisions of section 1, its members have been appointed by the board of supervisors. Section 4 of the act declares the acquisition and maintenance of all park lands to be a county purpose, and section 20 provides for taxation to raise revenues which shall be a county charge. Among the lands under the exclusive management and control of the Commission and forming part of the Westchester County Park and Parkway System is the Hutchinson River Parkway. The record shows that this parkway is designed to extend many miles through the county and to cross the tracks of the New York, New Haven and Hartford railroad at two locations within the boundaries of the towns of Pelham and North Pelham. The Appellate Division has held that the provisions of section
Section
"When a new street, avenue, highway or road or new portion or additional width of a street, avenue, highway or road, or a state or county highway or county road deviating from the line of an existing highway or road, shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section ninety-one of this chapter, such street, avenue, highway or road, or new portion or additional width of a street, *317 avenue, highway or road, shall pass over or under such railroad whenever such construction is practicable. Notice of intention to lay out such street, avenue, highway or road, or such new portion or additional width of a street, avenue, highway or road, across a steam surface railroad shall be given to such railroad corporation by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue, highway or road or such new portion or additional width of a street, avenue, highway or road by service personally on the president or vice-president of the railroad corporation or any general officer thereof. In case of the construction of a state or county highway which deviates from the line of an existing highway across a steam surface railroad, a like notice shall be given to such railroad corporation by the state commission of highways at least fifteen days prior to the adoption of the maps, plans and specifications for such state or county highway by such commission. Such notice shall designate the time when and place where a hearing will be given to such railroad corporation, and such railroad corporation shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue, highway or road or such new portion or additional width of a street, avenue, highway or road, or before the state commission of highways in case of a state or county highway, on the question of the location of such highway. * * *"
Counsel for respondent county stated at the hearing before the Park Commission August 20, 1925, that he did not consider the parkway a State highway, but that he did consider it a county highway. The Appellate Division, after consideration of definitions of highways in section
The Hutchinson River Parkway does not seem to us to be "a street, avenue, highway or road" within the meaning of section
Our decision in Buffalo, L. R. Ry. Co. v. Hoyer (supra) is controlling. There the question necessary for actual determination, as stated by Judge CHASE, was whether "the highway known as the Common" in the village of Middleport is a street, avenue, road or highway within the meaning of the Railroad Law, or a public park. A former owner of the land marked it "Public Common" on his map and he covenanted in deeds to individuals and to a religious society of lots abutting upon the common that the parcel designated as a public common should be faithfully devoted to that use. Sixty years later the village, which had not been in existence at the time of the execution of the deeds, assumed to accept the former owner's covenants as offers of dedication, and its trustees adopted a resolution by which it accepted the offers and dedicated the common as a public park. For many years prior to the institution of the action, a public highway thirty feet wide had existed through the center of the common but was never in terms dedicated as a highway. On the bordering lands, trees were planted and grass grew and the place had many of the qualities of a public park. In some of the proceedings of the village trustees, the location was designated as a public park, village green and public common. We held, on these facts, that the plot dedicated and accepted *321 as a common constitutes a public park and that neither the park itself nor the driveway across it is a street, avenue, road or highway within the meaning of the Railroad Law. The opinion expresses certain rules which are germane to the facts now before us. It says: "Driveways in public parks are common. Driveways like walks and bridle paths are not only not inconsistent with the use of a public park as such, but they are a part of the common and ordinary means by which a park is used by the public. In the case of large parks, paths and driveways are essential to their satisfactory use. The ordinary use by the public of paths and driveways through a public park is consistent with and incidental to the purposes of the park. * * * Ordinary paths and driveways in a public park are subject to the regulations of the officers charged with the duty of superintending and caring for the park. The course of such paths and driveways may be changed from time to time, or such paths and driveways may be wholly closed as in the judgment of the officials in charge of the park may seem desirable." The analogy between the two cases is very close. To distinguish the principle would be difficult. Here we have a park including a driveway extending from Pelham Bay Park in New York city to a point near the Connecticut boundary. The Westchester Park Commission, by virtue of section 3, chapter 292, Laws of 1922, has control and management of it. By section 17 the Commission may make rules and ordinances governing its use and by section 14 is authorized to discontinue it. The statute under which the parkway is authorized calls it a park. Every reason upon which our former ruling is based applies to the facts now before us.
The Hutchinson River Parkway is not constructed under section
The order of the Appellate Division should be reversed and the determination of the board of supervisors should be annulled, with costs in this court and in the Appellate Division.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS and KELLOGG, JJ., concur; LEHMAN, J., not voting.
Ordered accordingly.