The opinion of the court was delivered by: BYERS
Motion arising on petition for leave to intervene in this proceeding on the part of seven owners of separate parcels of real estate lying within a restricted and privately supervised section of Great Neck, Long Island, known as "Grenwolde" or "Grenwolde Park".
The government has filed a declaration of taking, and a petition to acquire certain of the property lying within that section (see petition filed April 25, 1942, and amended petition filed October 22, 1942) but none of the property therein described is owned by any proposed intervenor, with an exception later to be stated; the bases urged for intervention are that their property is being taken without compensation, as follows:
1. A right of way over a street comprehended within the property taken is being extinguished.
2. Their several holdings are being depreciated as the result of the violation of a restrictive covenant said to be appurtenant to the land of each, by reason of the purpose of the government to ignore that covenant in the erection of a school building, barracks, etc., upon the condemned property.
3. They are to suffer a substantial loss arising from the increased financial burden of maintenance falling upon them, by reason of the withdrawal of the condemned property (about 42% of the total holdings in the park) from the liability to contribute annually to the fund which pays the maintenance charges assumed by this restricted community under the declaration pursuant to which all properties with Grenwolde were acquired.
There is no issue of fact arising upon the petition to intervene. The government opposes solely on the ground that no property, rights in property, interests or estates in property owned, held or claimed by the intervenors are taken or sought by the government, and consequently that no right to intervene has been pleaded or shown.
As to the first claim of the intervenors, it is a fact that a portion of the property described in the declaration and petition is Grenwolde Drive, a road or street the title to which is in Grenwolde Association, Inc., and over which each of these property owners has a right of way for ingress and egress to a public road lying north of the park. Paragraph Eleventh of the declaration of September 30, 1913, constituting the basic structure of the holdings in this development, reads in material part as follows:
"Eleventh: In consideration of his purchase of property at Grenwolde, and of the payment of his proportions of the general maintained charges as above set forth, each such purchaser shall have in common with other purchasers a permanent right of way over the streets and highways shown on said maps, * * *."
The right of way so created is an easement which is appurtenant to each of the properties described in the petition for intervention, and the easement is being extinguished by the government. To deny that this is the taking of property is to assert a stark fallacy.
The argument in opposition rests upon Paragraph Ninth of the same declaration, which is said to stand in the intervenors' path; the provision is:
"Ninth: No title to any land in any streets or lines is intended to be conveyed to purchasers of any property but the Company reserves the right to convey to abutting land owners or to any association or club, formed of or for purchasers of property or to any public authority all of its rights, title and interest in and to said streets, or any of them, should the Company deem it expedient to do so, subject to the right of the purchasers to use the said street.
"Should the title to any streets shown on said map be hereafter acquired by condemnation or otherwise, by any public authority all moneys received by the Company by way of compensation thereof shall be immediately turned over to such public authority (all moneys received by the Company by way of compensation therefor shall be immediately turned over to such public authority) [sic] ...