Opinion
December, 1903.
James McKeen [ John E. Walker with him on the brief], for the appellant.
Henry M. Goldfogle, for the respondent.
This is an appeal from an order granting the relator's application for a peremptory writ of mandamus to compel the defendant to withdraw his revocation and reaffirm a building permit theretofore issued, and to compel him to issue a permit for the erection of other buildings, plans for which had been filed. In July, 1903, the relator filed plans in the bureau of buildings in the borough of Brooklyn, whose superintendent the defendant is, for the erection of a two-story structure situate on the southerly side of Eastern parkway extension, one hundred and thirty-six feet easterly from Sterling place. After the approval of these plans a permit was issued for the erection of the building, and later this permit was revoked, when it was learned that the front line of the proposed building was distant only six feet back from the building line, instead of thirty feet as required by section 14 of title 16 of chapter 583 of the Laws of 1888, as amended by chapter 702 of the Laws of 1897, chapter 583 of the Laws of 1900, chapter 30 of the Laws of 1901, and chapter 252 of the Laws of 1903. Thereafter the relator filed other plans for the erection of a two-story building, forty feet easterly from that the plans of which had been approved, and a permit for the erection of it was refused for the reason which prompted the revocation of the former permit. The relator's application for a peremptory writ of mandamus resulted in the order appealed from.
So far as material to this issue, section 14 ( supra) as amended by chapter 252 of the Laws of 1903 reads as follows: "No buildings, or other erections, except porches, piazzas, fences, fountains and statuary, shall remain, or at any time be placed upon any of the lots fronting upon Eastern parkway, from Washington avenue easterly to the extension of Eastern parkway, or upon the extension of said Eastern parkway to Ridgewood park, within thirty feet from the line or sides of the said several streets respectively."
The relator seeks to support the order upon the ground that the city of New York, pursuant to the statute cited, has undertaken to and actually has taken his property for public use without compensation. The statute has had the effect of depriving the relator of a full beneficial use of thirty feet of his property nearest Eastern parkway extension. The city has undertaken to control an easement therein. The appellant does not deny the rule of law, which seems well established, that an easement is a constitutional right of property which cannot be taken from its owner without just compensation. ( Matter of City of New York, 168 N.Y. 134; Lahr v. Met. El. R. Co., 104 id. 269, 291; Smith v. City of Rochester, 92 id. 463, 484; Kane v. N.Y.E.R.R. Co., 125 id. 164, 184.)
The affidavits read upon the motion which resulted in the order appealed from, show that the relator has received no compensation for this taking by the city, and that fact seems to be conceded by the appellant, who cites a single authority in support of his contention that the order should be reversed. He urges that the act of 1897 and the subsequent amendatory statutes are not unconstitutional and at most only inoperative. He cites the language of Judge CULLEN in Fries v. New York Harlem R.R. Co. ( 169 N.Y. 270, 288) as follows: "The statute is not unconstitutional and no decision to that effect is necessary to secure the plaintiff's rights. If an act were passed by the Legislature authorizing a corporation to construct a bridge across the Hudson river above Waterford it would be unconstitutional, because the Constitution prohibits the enactment of a special law for such purpose. If, however, the act authorized the construction of a bridge at the Highlands (the Constitution permitting special acts for bridges over the Hudson river below Waterford), it would not be rendered unconstitutional by the fact that the company did not own a rood of ground in either of the counties which border on the river at that point. The statute would simply be inoperative until the company acquired the necessary land." It is difficult to comprehend how this language, even had it been the opinion of the court, can affect the question of law raised upon this appeal, which is whether the order granting the peremptory writ of mandamus was right. Long before the provision guaranteeing the security of private property was incorporated into the Constitution of this State it had been held that the Legislature had no power to take private property, even for useful or necessary public purposes, without providing a fair compensation to the owner. ( Gardner v. Village of Newburgh, 2 Johns. Ch. 162.) The doctrine announced in that case has been cited with approval repeatedly since its decision, and is now a part of the settled body of the law. ( Varick v. Smith, 5 Paige, 137, 143, 150; Sage v. City of Brooklyn, 89 N.Y. 190, 195; Cogswell v. N.Y., N.H. H.R.R. Co., 103 id. 10, 21.) It was further announced in the Gardner case that power conferred on the Legislature to take private property for public purposes may not be legally exercised until a just indemnity is afforded to the owner. This expression later developed into a more tangible doctrine, and in People ex rel. Utley v. Hayden (6 Hill, 359) it was declared: "Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid before property is thus taken, it is, I apprehend, the settled doctrine, even as it respects the State itself, that, at least, certain and ample provision must be first made by law (except in cases of public emergency), so that the owner can coerce payment through the judicial tribunals or otherwise, without any unreasonable or unnecessary delay. Otherwise the law making the appropriation is no better than blank paper. ( Bloodgood v. The Mohawk and Hudson Railroad Co., 18 Wend. 9.)"
The opinion of a majority of the judges, expressed by Chief Judge ANDREWS, in the Sage Case ( supra), has this to say upon the proposition decided by the two leading cases to which I have referred: "It is so axiomatic, that it is laid up as one of the principles of government, that a provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. ( Gardner v. Village of Newburgh, 2 Johns. Ch. 168.) The courts in construing the constitutional guaranty, have departed from what may seem its plain and natural meaning, and have held that the payment for property taken in invitum for public use, need not be concurrent with the taking, but that it is sufficient if the law authorizing the taking, also provides a sure, sufficient and convenient remedy by which the owner can subsequently coerce payment by legal proceedings. If such provision is not made, then, as was said by NELSON, Ch. J., `the law making the appropriation is no better than blank paper.' ( People ex rel. Utley v. Hayden, 6 Hill, 359.) It is, I think, a plain proposition, that a law authorizing the taking of a man's land, and remitting him for his sole remedy for compensation to a fund to be obtained by taxation of certain specified lands in a limited district, according to benefits is not a sure and adequate provision, dependent upon no `hazard, casualty or contingency whatever,' such as law and justice require to meet the constitutional requirement. The pledge of the faith and credit of the State, or of one of its political divisions, for the payment of the property owner, accompanied with practical and available provisions for securing the application of the public faith and credit to the discharge of the constitutional obligation of payment, has been held to be a certain and sufficient remedy within the law. But a remedy for compensation, contingent upon the realization of a fund from taxation for benefits within a limited assessment district, does not meet the constitutional requirement. The inadequacy of such a provision finds in the circumstances of this case ample illustration. (See Chapman v. Gates, 54 N.Y. 146.)" (See, also, Matter of Petition of United States, 96 id. 227.)
In the statute under consideration, however, we have been unable to discover any provision relating to the compensation of persons situated as the relator is here, or under which he might clearly proceed for the purpose of obtaining the value of the property taken from him; and our attention is called to no such enactment. The case is, therefore, clearly within the doctrine that private property may not be taken for public purposes by reason of legislative enactment unless an adequate and certain remedy is provided therein whereby the owner may compel the payment of his damages. ( Chapman v. Gates, 54 N.Y. 132, 146; Lyon v. Jerome, 26 Wend. 485; Rexford v. Knight, 11 N.Y. 308. ) The conclusion is, therefore, plain that the appellant might not revoke or refuse permits on the sole ground that the parties to be benefited attempted a full and complete lawful use of their property on the Eastern parkway extension.
The order should be affirmed, with costs.
GOODRICH, P.J., and HIRSCHBERG, J., concurred; BARTLETT and JENKS, JJ., concurred in result.
If the municipal authorities desire to review this decision by an appeal to the Court of Appeals, the issuance of the mandamus will be stayed for a reasonable time in order to enable them to do so. Order affirmed, with ten dollars costs and disbursements.