April 13, 1917.
George A. Blauvelt, for the appellants.
R.E. Digney [ John M. Digney with him on the brief], for the respondent.
The determining question on both appeals is whether the complaint states facts sufficient to constitute a cause of action.
The plaintiff, organized under the Transportation Corporations Law of the State of New York (Consol. Laws, chap. 63 [Laws of 1909, chap. 219], art. 8), made maps and plans for the purpose of acquiring a source of water supply in the towns of Ramapo and Haverstraw, in Rockland county, and on the 22d day of May, 1916, presented said maps and plans, with a petition for their approval, to the Conservation Commission pursuant to chapter 647 of the Laws of 1911, being the Conservation Law (Consol. Laws, chap. 65, art. 9, as amd.). The defendants, a body corporate created by chapter 170 of the Laws of 1900 and acts amendatory thereof, for the purpose of establishing the Palisades Interstate Park, having learned from plaintiff's maps and plans of the location of the lands which plaintiff proposed to acquire, did, during the pendency of the hearings on plaintiff's petition before the Conservation Commission, and without previously making any maps showing the selection or location of such lands as part of the Palisades Park, acquire by purchase certain lands lying within the area described on plaintiff's maps, and entered into negotiations for the purchase of other such lands.
The plaintiff thereupon brought this action, seeking to enjoin the defendants from proceeding further to acquire any lands or water rights in said watershed and territory described in plaintiff's maps, and has secured an injunction pending the action to that effect.
It has been held that a railroad company which has filed a map of its route and is regularly proceeding to condemnation has a standing in a court of equity to enjoin another like company from interfering by securing a lease of a portion of the proposed route and laying its tracks thereon. ( Rochester, H. L.R.R. Co. v. N.Y., L.E. W.R.R. Co., 44 Hun, 206; affd., 110 N.Y. 128. ) It was said by Judge GRAY in that case that "When, therefore, a corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to all persons affected by such construction, and no change of route is made, as the result of any proceeding instituted by any landowner or occupant, in our judgment, it has acquired the right to construct and operate a railroad upon such line; exclusive in that respect as to all other railroad corporations and free from the interference of any party. By its proceedings it has impressed upon the lands a lien in favor of its right to construct, which ripens into title through purchase or condemnation proceedings." This rule also seems to have been applied in a case between a water company and a municipality struggling for the same source of water supply. ( Pocantico Water Works Co. v. Bird, 130 N.Y. 249.)
The plaintiff's claim, as I understand it, rests on the doctrine of these cases, and is that the making of its maps and plans and presenting them to the Conservation Commission, and then proceeding in an orderly way toward acquiring the lands, gave it such a right to proceed without interruption that it can prevent defendants' acquiring such land for park purposes. I say acquiring them for park purposes, for if they are not acquired for public use they are still subject to plaintiff's right to condemn, and there is no need to resort to equity. This doctrine has been re-examined and limited in People v. Adirondack Railway Co. ( 39 App. Div. 34; revd., 160 N.Y. 225). The Appellate Division, by a divided court, resting its decision on that doctrine, held that maps and plans filed by the defendant gave it such a right in the land covered by them that the State could not acquire it by eminent domain for the Adirondack Park. But the Court of Appeals, in reversing, carefully stated and defined the right which a railroad company acquired by filing maps of the route, in the following words: "The effect of the map when filed was to give warning to other railroads that a certain route had been pre-empted by the defendant. It established no right against the owner, because the Constitution forbids it; it established none against the State, because its power is paramount, but as against all other railroad companies and as against all other creatures of the State, empowered to use the right of eminent domain, it gave the exclusive right to occupy the particular strip of land for railroad purposes until the Legislature authorized it to be devoted to some other public use." In People v. Adirondack Railway Co. ( supra) it was held that the State could appropriate the land for a park notwithstanding that the railroad company had filed the map of the route and was regularly proceeding to acquire the land. Whatever else may be said, it is established that filing the map gave no rights as against the State. Now the Commissioners of the Palisades Interstate Park are a public corporation. ( Economic P. C. Co. v. City of Buffalo, 195 N.Y. 286.) The park is to be established in the interests of the people at large. The Commissioners are appointed by the Governor and serve without compensation. (Laws of 1900, chap. 170, § 1.) They are to act in conjunction with the State of New Jersey in establishing a continuous park, lying in both States. (Id. § 5.) The public alone is to be interested in the park. The lands which are acquired for park purposes are to be held "in trust for the People of the State of New York." (Id. § 7.) The establishment and maintenance of the park seems to me as much the act of the People of the State as in the case of the Adirondack Park. In the latter case the State acts direct through Commissioners or a Commissioner now known as the Conservation Commission appointed by the Executive, and in the former through a public corporation. (See Conservation Law, § 2, as amd. by Laws of 1915, chap. 318, and Laws of 1916, chap. 257; Id. § 50 et seq., as added by Laws of 1916, chap. 451; Laws of 1900, chap. 170, § 2, as amd. by Laws of 1914, chap. 15, and Laws of 1915, chap. 562.) The interest of the State in each case is the same, and in neither case is there any intermixture of private interests. I fail to see how the provision of the State Constitution providing that the forest preserve shall be forever kept as wild forest lands (Const. art. 7, § 7) affects the question, because that provision applies only to the lands of the State "now owned or hereafter acquired." A regulation of the use of the land after acquisition does not affect either the right of a public service corporation or of the State to acquire it.
By chapter 691 of the Laws of 1906 and chapter 361 of the Laws of 1910, amending chapter 170 of the Laws of 1900, the power of the Board of Commissioners of the Palisades Interstate Park to acquire lands for park purposes was extended to territory including the land in question. The board was given power to select and locate the land "as soon as said board shall deem it feasible and advisable," and to acquire the land so located by purchase, gift, devise or eminent domain. (See §§ 4, 5, as amd. supra.) All the territory included within the domain described in the act was subject to the power of the board to select, locate and acquire it for park purposes. Their act in so doing was the act of the State, and under the case of People v. Adirondack Railway Co. ( supra) no private public service corporation could curtail such right by filing a map.
I do not read the act as providing that the board could not acquire land for park purposes by purchase, gift or devise until after making the maps required in section 6 of the act. That is made a condition precedent to acquiring the land by eminent domain. They could acquire by purchase, gift or devise, any land which they should "select and locate" (§§ 4, 5 of the act), and the words "select and locate" do not by implication require the making of maps. The power of the board extended over a large extent of territory. The wording of the act shows that the park may consist of disconnected parcels, for it authorizes the acquiring of rights of way for "roads between and connecting any separated portions of said park." (§ 5 of the act.) I think the words "select and locate," particularly as applied to the extension of the park, used in the acts of 1906 and 1910, permit the acquisition of land by purchase, gift or devise without making the maps provided for in section 6. Either the lands were purchased by the board acting within its powers, thereby becoming part of the park and subjected to a permanent State use, or, if the board in purchasing did not act within its powers and the land did not become subject to a public use for park purposes, the purchase imposed no impediment to plaintiff's condemnation proceeding. The complaint, therefore, fails to state a cause of action.
Whether the plaintiff, a public service corporation, or the defendants, a State agency, have priority in right to appropriate the land in question, is for the Legislature to determine. We decide only, construing the statutes as they now exist, that the plaintiff by filing maps and proceeding before the Conservation Commission did not, as against the defendants, secure right of pre-emption.
The same reasoning disposes of the injunction. In addition, it may be observed that an injunction pending the action which is permissible to preserve the situation until trial, in this case, ties the hands of the defendants and leaves the plaintiff free to proceed in acquiring the land.
The order denying defendants' motion for judgment and overruling the demurrer should be reversed, with ten dollars costs and disbursements, and defendants' motion for judgment granted, with costs.
The order granting the motion for an injunction should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
JENKS, P.J., STAPLETON, MILLS and RICH, JJ., concurred.
Order denying defendants' motion for judgment and overruling demurrer reversed, with ten dollars costs and disbursements, and defendants' motion for judgment granted, with costs. Order granting motion for an injunction reversed, with ten dollars costs and disbursements, and motion denied, with costs.