Argued April 29, 1910
Decided May 17, 1910
Archibald R. Watson, Corporation Counsel ( Theodore Connoly, Terence Farley and Clarence L. Barber of counsel), for The City of New York et al., appellants.
Archibald R. Watson, Corporation Counsel ( William McMurtrie Speer of counsel), for The Board of Water Supply of the City of New York, appellant.
Harrison T. Slosson and Arthur A. Brown for respondents.
We agree with the learned Appellate Division in the conclusion that the legislation under consideration in this proceeding violates none of the provisions of the Federal and State Constitutions which are invoked by the appellants. The right of eminent domain is an attribute of sovereignty which the state may grant or withhold at its will. When it delegates that right, it may impose upon the donee any condition that does not encroach upon or abridge any of the constitutional rights of those whose property is to be taken. It may require the donee of the right to do more than is demanded by the Constitution, but it may not permit less to be done. If the donee accepts the right and exercises it, the conditions subject to which it is granted cannot be evaded or ignored. They are part and parcel of the grant. The whole argument upon this question is aptly and tersely stated in the language of Chief Judge CULLEN in Matter of City of New York ( 190 N.Y. 350, 354), where he wrote, "that as the right to exercise the power of eminent domain must proceed from legislative authority, the legislature may require more liberal compensation than that which would satisfy the constitutional requirement, but it cannot direct that anything less than just compensation shall be made." That statement of the law cuts off at its root the contention of the appellants that the legislation under which the city of New York is extending its water supply is unconstitutional. The only criticism made upon these statutes is that they require the city to do more than is demanded by the Constitution, and the obvious answer to it is that the city has acquired from the state a privilege which was granted upon specified conditions, and these the city must be deemed to have accepted with the grant.
The appellants challenge the relator's asserted right to the writ of mandamus granted herein, directing the board of water supply and the corporation counsel to institute proceedings for the determination of the claimants' damages. The language of the statute is so plain and unequivocal as to preclude elaborate discussion. It gives a right to damages to any person who, on the 1st day of June, 1905, had an established business in the counties of Ulster, Albany or Greene, which may have been directly or indirectly decreased in value by reason of the acquiring of land by the city of New York for an additional water supply. It is obvious that no right of action for such a cause exists outside of the statute, and that there is no way of enforcing it under the statute except by condemnation proceedings instituted by the proper authorities. We think the statutes under consideration contemplate the determination of all such claims in the original proceedings instituted to acquire lands upon which such business was carried on, and that is the practice which the claimant herein sought to invoke. The commissioners should have taken her evidence as to damages and determined her claim in the proceedings to acquire the land upon which her business had been carried on. As that right was denied to her she will be without remedy unless she can compel the city authorities to institute a separate proceeding for the determination of her claim. The attitude of the appellants has made that the law of this proceeding. Such compulsion can only be enforced by mandamus and the relator is, therefore, clearly entitled to the writ.
It is further urged for the appellants that no writ should have been granted because the statute does not authorize compensation for injury to business upon lands condemned, but limits such compensation wholly to business conducted upon lands not condemned. Neither the language nor the purpose of the statute indicate that the legislature intended to accomplish such an incongruous and unjust result. The rule of strict construction invoked by the appellants suggests not a single reason why there should be compensation for injury to a business conducted upon lands not condemned, if the same kind of business upon lands condemned is to be excluded from the benefits of the statute. Such an interpretation of the law would be at war with the plainest principles of reason and justice. The proceeding at bar very aptly illustrates the anomaly which would arise if we should adopt the argument of the appellants. The claimant herein had only a dower interest in the lands taken. The business conducted upon it was hers exclusively. If the rule contended for by the appellants were to be adopted she would be debarred from compensation for injury to her business, although her neighbor across the way, similarly situated upon lands not condemned, would be entitled to recover all her damages. Such a consummation should not be held to have been within the contemplation of the legislature unless it is so clearly expressed as to leave no room for doubt.
We deem it unnecessary to discuss the other questions presented upon the briefs of the appellants. Some of them do not arise in this proceeding, and the others are disposed of by the broad and fundamental consideration that a municipality which asks the legislature for a privilege which is granted subject to specified conditions, cannot accept the grant and reject the conditions.
The order of the Appellate Division should be affirmed, with costs.
CULLEN, Ch. J., GRAY, HAIGHT, VANN and HISCOCK, JJ., concur.