8 Paige Ch. 198 | New York Court of Chancery | 1840
It is pretty evident in this case that an assessment has been made on the lands of the complainants, which must probably produce a total sacrifice of the property assessed, unless they can obtain relief, either in this court or by legislative interference. Judging from the facts before me, I cannot see how it was possible for the commissioners of estimate and assessment, to have come to the conclusion that the lands assessed could be benefitted to the amount of about $14,000 by the contemplated improvement f even upon the principles on which they proceeded relative to the Bedford road as a public highway, already laid out and established. As I understand the case, the assessment limits only included of the complainant’s lands 107 feet on each side of the Bedford road as originally laid out by the turnpike commissioners, and extending in length on that road about 968 feet. This would give to the complainants 76 lots of 25 feet front, and 107 feet deep, upon a street of 66 feet in width. And if the contemplated improvement was made, they would have the same number of lots of 100 feet in depth, upon an 80 foot street. These lots,at the valuation fixed upon them by the second answer of the defendants, at the time of the assessment when lands were the highest, were worth $250 ; making the sum of $19,000 for the lands assessed. And yet it, is supposed these lots will be benefitted by the widening and extending of this street $139,31 ; or about three fourths of their then estimated value, and nearly their full value one year thereafter, when the second answer was put in. It is possible, that some further benefits might accrue to these lots, by the extension of Bedford road beyond where it was already opened four rods wide, in addition to the benefit of having it fourteen feet broader in front of the lots assessed. But there is much reason to believe that the
The first objection to the regularity of the assessment is that the commissioners of estimate and assessment have assumed that the turnpike road was not only regularly laid out, but that it was already the property of the public, so that the complainants were entitled to no compensation therefor. In this I think the commissioners were clearly under a mistake. For the purpose of this decision,!shall take it for granted that the turnpike was properly laid out, and that the damages of the complainants for that part of their farm which was taken for the use of the corporation were legally and constitutionally assessed, pursuant to the provisions of the general turnpike act of 1807. Still that act did not vest the title of the land in the turnpike company, even for the purposes of the road during the existence of the charter, until the actual payment of the damages which had been so assessed. The language of the statute is, that the turnpike corporation, upon paying to the owners of the land the sum assessed and awarded by the appraisers in their inquisition, shall and may have and hold the lands to them and their successors and assigns, &c. (1 R. L. of 1813, § 3, p. 231.) It is true, the statute
I think, however, there is a more conclusive objection to the proceedings of the defendants, in this case ; and that is, that the mayor and common council had no legal authority to lay out and open this new street through the lands of the complainants, in one of the new wards of the city, subsequent to August, 1835 ; until the same had been authorized by the commissioners appointed under the act of the 23d of April in that year, authorizing the appointment of commissioners to lay out streets, avenues and squares in the city of Brooklyn. That act, which took effect on the first of September after its passage, gives to the commissioners, to be appointed by the governor on the