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Schroeder v. City of New York

U.S.
Dec 17, 1962
371 U.S. 208 (1962)

Summary

holding that publication and posting of notice of condemnation were inadequate when the landowner's name and address were easily ascertainable from public records

Summary of this case from Aero-Medical, Inc. v. U.S.

Opinion

APPEAL FROM THE COURT OF APPEALS OF NEW YORK.

No. 75.

Argued November 15, 1962. Decided December 17, 1962.

Under the New York City Water Supply Act, the City instituted proceedings to acquire the right to divert a portion of a river some 25 miles upstream from appellant's summer home, which was on the bank of the river and was occupied only during the months of July and August each year. Although appellant's name and address could easily have been ascertained from deed records and tax rolls, no attempt was made to give notice to appellant except by publication in newspapers and by posting notices during the month of January on trees and poles along the river. Alleging that she had no actual knowledge of the proceedings until after the statutory period for filing damage claims had expired, appellant sought redress in the New York courts. Held: In the circumstances of this case, the newspaper publications and posted notices did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires. Pp. 208-214.

10 N.Y.2d 522, 180 N.E.2d 568, reversed.

Louis B. Scheinman argued the cause and filed briefs for appellant.

Theodore R. Lee argued the cause for appellee. With him on the brief were Leo A. Larkin and Seymour B. Quel.

Briefs of amici curiae, urging reversal, were filed by Benjamin M. Goldstein for Goldstein Goldstein et al. and by Osmond K. Fraenkel for the New York Civil Liberties Union.


The question presented by this case is whether the City of New York deprived the appellant of due process of law by failing to give her adequate notice of condemnation proceedings affecting certain property she owned on the Neversink River in Orange County, New York. The property in question consisted of a house and three and one-half acres of land, which the appellant and her family occupied only during the months of July and August each year.

In 1952 the city instituted a proceeding under the provisions of the New York City Water Supply Act to acquire the right to divert a portion of the Neversink River at a point in Sullivan County, New York, some 25 miles upstream from the appellant's property. The Water Supply Act, which sets out the procedure to be followed by the New York Board of Water Supply in condemning land, easements, and rights affecting real property required for the New York City water system, provides that notice of such condemnation proceedings be given to affected landowners in the following manner:

Administrative Code of City of New York, Title K41.

"The corporation counsel shall give notice in the City Record, and in two public newspapers published in the city of New York and in two public newspapers published in each other county in which any real estate laid out on such maps may be located, and which it is proposed to acquire in the proceeding, of his intention to make application to such court for the appointment of commissioners of appraisal . . . . Such notice shall be so published, once in each week, in each of such newspapers, for six weeks immediately previous to the presentation of such petition; and the corporation counsel shall in addition to such advertisement cause copies of the same in hand bills to be posted up, for the same space of time in at least twenty conspicuous places on the line of the aqueduct or in the vicinity of the real estate so to be taken or affected."

Administrative Code of City of New York, Title K41-8.0.

The Act further provides that all claims for damages resulting from the city's acquisition are barred after three years.

Administrative Code of City of New York, Title K41-18.0.

Proceeding in accordance with the statute, the city caused notice of its acquisition of the right to divert the Neversink to be published the requisite number of times in the City Record of the City of New York, in two New York City newspapers, and in two newspapers published in Orange County, and in addition posted 22 notices on trees and poles along a seven- or eight-mile stretch of the river in the general vicinity of the appellant's premises. No notice was posted anywhere on the appellant's property itself. The two Orange County newspapers in which publication was made were published in small communities many miles from the appellant's property, although at the time there were newspapers being published in larger Orange County towns nearby. The notices were posted on the trees and poles during the month of January, when the appellant's premises were vacant. Although the appellant's name and address were readily ascertainable from both deed records and tax rolls, neither the newspaper publications nor the posted notices contained the name of the appellant or of any other affected property owner. Neither the newspaper publications nor the posted notices explained what action a property owner might take to recover for damages caused by the city's acquisition, nor did they intimate any time limit upon the filing of a claim by an affected property owner.

The appellant did not file a claim for damages to her property within the three-year period prescribed by the Water Supply Act. In January 1960, however, she brought the present equitable action in a New York trial court. Her complaint alleged that she had never been notified of the condemnation proceedings, and knew nothing about them, nor of her right to make a claim against the city for damages to her property, until after she had consulted a lawyer in 1959. She alleged that by failing to give her adequate notice of the condemnation proceedings, the city had deprived her of property in violation of due process of law. The trial court granted the city's motion for judgment on the pleadings in an unreported opinion holding that "the notice provisions of Section K 41-8.0 of the Water Supply Act — admittedly fully complied with by the defendant" — were not "violative of the due process provisions of the Federal and State Constitutions . . . ." This judgment was affirmed by the Appellate Division, and by the New York Court of Appeals, two judges dissenting. The case is properly here on appeal under 28 U.S.C. § 1257 (2).

10 N.Y.2d 522, 180 N.E.2d 568. Although the complaint prayed for a judgment enjoining the city from diverting the waters of the Neversink, the New York courts construed the pleading as the appropriate way to raise the question of the adequacy of the notice provisions and to assert the right to be heard on the issue of damages. In her brief the appellant has conceded that she is not entitled to an injunction. Cf. Walker v. Hutchinson City, 352 U.S. 112, 114, n. 3.

We hold that the newspaper publications and posted notices in the circumstances of this case did not measure up to the quality of notice which the Due Process Clause of the Fourteenth Amendment requires.

"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457; Grannis v. Ordean, 234 U.S. 385; Priest v. Las Vegas, 232 U.S. 604; Roller v. Holly, 176 U.S. 398." Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314. In the Mullane case, which involved notice by publication to the beneficiaries of a common trust fund, the Court thoroughly canvassed the problem of sufficiency of notice under the Due Process Clause, pointing out the reasons behind the basic constitutional rule, as well as the practical considerations which make it impossible to draw a standard set of specifications as to what is constitutionally adequate notice, to be mechanically applied in every situation.

As was emphasized in Mullane, the requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requisites of due process — the right to be heard. "This right . . . has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." 339 U.S., at 314. The Court recognized the practical impossibility of giving personal notice in some cases, such as those involving missing or unknown persons. But the inadequacies of "notice" by publication were described in words that bear repeating here:

"Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when, as here, the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention." 339 U.S., at 315.

The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. "Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency." 339 U.S., at 318.

This rule was applied in New York v. New York, N. H. H.R. Co., 344 U.S. 293, 296, where the Court pointed out that "[n]otice by publication is a poor and sometimes a hopeless substitute for actual service of notice," and that "[i]ts justification is difficult at best." The rule was applied again in Walker v. Hutchinson City, 352 U.S. 112, in a factual situation much akin to that in the present case. In Walker part of the appellant's land had been taken in condemnation proceedings, and he had been given "notice" of a proceeding to fix his compensation only by publication in the official city newspaper. The Court held that such notice was constitutionally insufficient, noting that the appellant's name "was known to the city and was on the official records," and that "[e]ven a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard as to its value." 352 U.S., at 116.

Decision in the case before us we think is clearly controlled by the rule stated in the Mullane case, and by the specifically relevant application of that rule in the Walker case. It is true that in addition to publishing in newspapers, the city in the present case did put some signs on trees and poles along the banks of the river. But no such sign was placed anywhere on the appellant's property, or ever seen by her. The posting of these signs, therefore, did not constitute the personal notice that the rule enunciated in the Mullane case requires.

The majority opinion in the New York Court of Appeals seems additionally to have drawn support from an assumption that the effect of the city's diversion of the river must have been apparent to the appellant before the expiration of the three-year period within which the statute required that her claim be filed. 10 N.Y.2d, at 526-527, 180 N.E.2d, at 569-570. There was no such allegation in the pleadings, upon which the case was decided by the trial court. But even putting this consideration aside, knowledge of a change in the appearance of the river is far short of notice that the city had diverted it and that the appellant had a right to be heard on a claim for compensation for damages resulting from the diversion. That was the information which the city was constitutionally obliged to make at least a good faith effort to give personally to the appellant — an obligation which the mailing of a single letter would have discharged.

The complaint alleged damages based upon the impairment of the river's value to the appellant for "bathing, swimming, fishing and boating." This claimed impairment allegedly resulted not from any change in the river's course, depth, or configuration, but from a decrease in the velocity of its flow.

The judgment of the New York Court of Appeals is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


Summaries of

Schroeder v. City of New York

U.S.
Dec 17, 1962
371 U.S. 208 (1962)

holding that publication and posting of notice of condemnation were inadequate when the landowner's name and address were easily ascertainable from public records

Summary of this case from Aero-Medical, Inc. v. U.S.

holding that newspaper notice along with posting signs in the vicinity of a landowner's property still did not satisfy the requirements of due process

Summary of this case from Hughes v. Kore of Ind. Enter., Inc.

holding that publication and posting of notice of condemnation inadequate when the landowner's name and address were easily ascertainable from public records

Summary of this case from U.S. v. Colon

holding that the city could have discharged its constitutional obligation to make a good faith effort to give personal notice by "the mailing of a single letter."

Summary of this case from In re Shortt

holding that landowner whose name and address were on the deed records and tax rolls was entitled to more than service by publication; publication notice “did not measure up to the quality of notice” demanded by the Due Process Clause

Summary of this case from In re E.R.

holding that publication notice “did not measure up to the quality of notice” demanded by the Due Process Clause even though challenge not filed within statutory three year limitations period

Summary of this case from In re E.R.

holding that landowner whose name and address were on the deed records and tax rolls was entitled to more than service by publication; publication notice "did not measure up to the quality of notice" demanded by the Due Process Clause

Summary of this case from In re E.R.

holding that publication notice "did not measure up to the quality of notice" demanded by the Due Process Clause even though challenge not filed within statutory three year limitations period

Summary of this case from In re E.R.

holding the same in condemnation proceedings

Summary of this case from Wilson v. Blount County

holding that publication by newspaper and through posted notices was insufficient to alert property owner of condemnation proceedings where name and address were easily ascertainable from deed records and tax rolls

Summary of this case from Lobato v. Taylor

holding that publication in newspapers and posted notice close to property did not satisfy procedural due process notice requirement

Summary of this case from Burtkin Associates v. Tipton

holding that service of process by mail is sufficient to give notice in most circumstances

Summary of this case from Carroll v. District of Columbia Dept

holding that newspaper publications and posted notices which were authorized by New York statute did not measure up to the quality of notice required by the Due Process Clause

Summary of this case from Mitchell v. Map Res., Inc.

holding that newspaper notice along with posting signs in the vicinity of a landowner's property still did not satisfy the requirements of due process

Summary of this case from Lake Cen. Sch. Corp. v. Hawk Dev. Corp.

holding that notice of condemnation proceedings published in a newspaper and posted was insufficient to notify property owner when his name and address were readily ascertainable from tax rolls and deed records

Summary of this case from Bullington v. Greene County

ruling that duty to notify property owner of condemnation proceeding was "an obligation which the mailing of a single letter would have discharged"

Summary of this case from ORIX FINANCIAL SERVICES v. PHIPPS

In Schroeder v. City of New York, 371 U.S. 208 (1962), decided prior to the promulgation of amended Rule 23, the Court explained that Mullane required rejection of notice by publication where the name and address of the affected person were available.

Summary of this case from Eisen v. Carlisle Jacquelin

In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), notice by the city of the acquisition of water rights in a river was published in local newspapers and posted along the banks of the river.

Summary of this case from United States v. 125.2 Acres of Land

In Schroeder, as Chief Judge Haynsworth cogently observed in United States v. Chatham, 323 F.2d 95, 99 (4th Cir. 1963), the nature of the property interest taken, the right to a particular course of water flow rather than freehold title, made impractical any restoration of the property interest, leaving only a compensation claim capable of collateral assertion.

Summary of this case from Fulcher v. United States

In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962), the Supreme Court held that due process was not satisfied by publication notice alone where no signs were posted on the property and no personal notice was sent to the owner, although her name was readily ascertainable from both deed records and tax rolls.

Summary of this case from Fulcher v. United States

In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255, it would have been most inappropriate to require New York to restore the flow of the river and imperil its water supply while bringing to a conclusion a new condemnation proceeding founded upon actual notice to Mrs. Schroeder. There was no question of the City's right to condemn.

Summary of this case from United States v. Chatham

In Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255, the Court had before it an action by a riparian land owner claiming damages because of diversion of water from the river some twenty-five miles upstream.

Summary of this case from United States v. Chatham

referencing Mullane, 339 U.S. at 318

Summary of this case from Reints v. City of Rapid City

concerning a dispute over the quality of notice, not timing

Summary of this case from Brown v. Dist. of Columbia

In Schroeder, the city had condemned property pursuant to the New York City Water Supply Act and notice of the condemnation proceeding had been by publication and posting in the area subject to condemnation, but unseen by the plaintiff Further, the notice did not inform property owners of their right to recover damages for the taking or note any time limit for objections. The Act barred any claims for compensation filed more than three years after the condemnation.

Summary of this case from Minnich v. Gargano
Case details for

Schroeder v. City of New York

Case Details

Full title:SCHROEDER v . CITY OF NEW YORK

Court:U.S.

Date published: Dec 17, 1962

Citations

371 U.S. 208 (1962)
83 S. Ct. 279

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