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In re Petition & Application of McClellan

Supreme Court of New York, Appellate Division

October 27, 1911

In the Matter of the Petition and Application of GEORGE B. MCCLELLAN and Others, Constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, for and on Behalf of Said City, for the Appointment of Commissioners of Appraisal, etc., in Relation to Lands at Joralemon and Furman Streets, in the Borough of Brooklyn, City of New York. THE PUBLIC SERVICE COMMISSION FOR THE FIRST DISTRICT OF THE STATE OF NEW YORK, as Successor to the BOARD OF RAPID TRANSIT RAILROAD COMMISSIONERS FOR THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Appellants; NEW YORK DOCK COMPANY and UNITED STATES MORTGAGE AND TRUST COMPANY, Respondents.

Page 595

APPEAL by the Public Service Commission for the First District of the State of New York, as successor to the Board of Rapid Transit Railroad Commissioners for the City of New York, and The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th

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day of September, 1909, confirming the report of commissioners of appraisal herein.

COUNSEL

Francis J. Byrne [Theodore Connoly and Archibald R. Watson with him on the brief], for the appellant, The City of New York.

Charles E. Hotchkiss, for the respondents.

OPINION

CARR, J.:

This is an appeal from an order made at Special Term in Kings county which confirmed a report of commissioners in condemnation proceedings. The proceedings were begun by the rapid transit commissioners, appointed under chapter 4 of the Laws of 1891, as amended, to acquire such rights in certain lands in the borough of Brooklyn, and land under water abutting the borough of Brooklyn, as were necessary for the construction of a branch of the municipal subway system, which, crossing under the bed of the East river, entered the borough of Brooklyn at the foot of Joralemon street in said borough, thereby connecting Brooklyn with the subway system in Manhattan. An amended map was filed to define and explain the precise locations in which these necessary rights were sought to be obtained. On this map certain parcels of water-front property are shown and numbered from 1 to 10 inclusive, of all of which the New York Dock Company, a corporation and a party to these proceedings, claimed an ownership in fee. By written stipulation between the petitioners and the New York Dock Company, the petitioners entered into immediate possession of certain of the parcels shown on said map for the purpose of constructing the subway in question. As a consequence of this entry into immediate possession and the carrying on of the work of construction, very considerable damage was done to the property and business of the New York Dock Company which was temporary in its nature. The commissioners of estimate took proofs of the elements and extent of this temporary damage, as well as those offered to prove damages to the dock company resulting from the permanent occupation by the subway as constructed. In making their award the commissioners did not state separately the items of temporary and

Page 597

permanent damage, but awarded a gross sum of $162,500 to the New York Dock Company in compensation for both temporary and permanent damages. The commissioners stated in their report that they found that 'The New York Dock Company was the owner in fee of all of the lots, pieces and parcels of land and premises shown on the amended map adopted by the Board of Rapid Transit Railroad Commissioners for The City of New York on June 15, 1905, and thereon designated by the parcel Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, subject, however, to the public easement for street purposes vested in The City of New York, in that portion of said premises known as Joralemon street, being that portion of said street between the westerly side of Furman street and the bulkhead line or line of solid filling established by chapter 484 of the Laws of 1836, as said Joralemon street was laid out and opened by Commissioners of Estimate duly appointed, and whose report was confirmed by the Supreme Court, Kings County, on August 4, 1842.'

It is urged on this appeal by the legal successors to the petitioners that, in making an award on the theory that the New York Dock Company owned a fee in all the parcels so enumerated in their report, the commissioners proceeded upon an erroneous theory, and that, therefore, their determination as to damages must be reversed.

The record before this court is quite voluminous, but the real point of controversy, considering the only question raised on this appeal, may be stated and considered within reasonably brief limits. The substantial question of title is confined to the lands under water at the foot of Joralemon street which underlie the slip or basin between two piers owned by the dock company and known as piers 17 and 18. These lands are claimed by the dock company in fee, while the petitioners contend that that portion of them which has been taken for, and is now occupied by, the constructed subway was in fact owned in fee by the city of New York. The claim of the dock company is based ...


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