Embury v. Conner (3 N.Y. 511, 1850)

Jewett, J.

On the part of the defendants, it is claimed, that the facts show that the corporation of New-York acquired the title to the premises in question, and legally conveyed them to James Conner, thereby showing an outstanding title adverse and paramount to that set up by the plaintiffs. On the other hand it is contended that the corporation of New-York did not, by said proceedings, acquire any title to the premises in question, on the ground that section 179 of the act of April 9, 1813, entitled “ an act to reduce the several laws relating particularly to the city of New-York, into one act,” (2 R. L, 416,) contains the only authority attempted to be conferred by law, upon the commissioners of estimate and assessment to include parts of lots not required to be taken for widening or opening streets in their estimate and assessment, and to vest the title thereto in the corporation of the city of New-York, in fee, and that this section of the statute is void, because the legislature assumed to confer a power to take the property of one, without his consent, and apply it to the use of another.

By that section it is enacted that it shall be lawful for the commissioners, so to be appointed by the court, for any of the purposes aforesaid, in all cases where part only of any lot or lots, parcel or parcels of land, or of any other tenements, hereditaments or premises, shall be required for any the aforesaid purposes, leaving a residue of such lot or lots, parcel or parcels of land or other premises belonging to the same owner or owners or parties in interest, to whom the said part thereof so required for such purpose, shall belong, and they the said commissioners shall deem it expedient and proper so to do, to include and comprise in their said estimate and assessment, the whole or any part of such said residue of such lot or lots, or parcel or parcels of land or other premises along with the part of the same so required for the said purpose of the said intended operation and improvement, in like manner as if the said residue, or the part thereof so to be included in the said estimate and assessment, was required for the purpose of making the said operation and improvement so to be made, and all the said part and residue of the said lot or lots, parcel or parcels of land or other premises so included in the said estimate and assessment, and not required for the purpose of making such said operation and improvement, shall,.on the confirmation by the said court of the said report of the commissioners, or such further report as may be made in the premises, become, and be vested in the said mayor, aider-men and commonalty of the city of New-York, and their successors, in fee simple, who may appropriate the same, or any part thereof, to public uses, and shall and may sell and dispose of the residue thereof, or the whole in case of no appropriation of any part thereof for public uses; and in case of the sale of the same, or any part thereof, the proceeds shall be disposed of in the manner and for the purposes as provided for by the next section.

It needs no argument to show that the end and design of this section was not to take private property for the use of the public. It manifestly goes upon the ground that the property so authorized to be taken is not wanted for the. purpose of forming or improving a street, the object in view for which the proceedings are instituted. In the Matter of Albany-street, (11 Wend. 148,) the constitutionality of this enactment came directly under the consideration of the supreme court, on application to confirm the report of the commissioners in that matter. The court then held that if that provision was intended merely to give to the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of it, there could be no objection to it. But if it was to be taken literally, that the commissioners might, against the consent of the owner, take the whole lot, when only a part was required for public use, and the residue to be applied to private use, it assumed a power which the legislature did not possess. This decision went mainly upon the implication contained in the last member of the clause of section seven of article seven of the constitution of 1821, that “ No person shall be deprived of life, liberty, or prop erty, without due process of law: nor shall private property be taken for public use without just compensation.” Chief Justice Savage said, “ The constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the private use of another.” In Bloodgood v. The Mohawk and Hudson Railroad Co. (18 Wend. 59,) Mr. Senator Tracy said the words should be construed “ as equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation.” Bronson, J. in Taylor v. Porter, (4 Hill, 147,) in reference to this question, said, that although he felt no disposition to question the soundness of these views, yet that it seemed to him that the case stood stronger upon the first member of the clause, No person shall be deprived of life, liberty or property, without due process of law.” That the words “ due process of law” in that place could not mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.

The same doctrine was held in the Matter of John and Cherry streets, (19 Wend. 659,) and by the chancellor in Varick v. Smith, 5 Paige, 137,) and was admitted by all the members of the court for the correction of errors, whose opinions have been reported in the case referred to of Bloodgood v. The Mohawk and Hudson Railroad Company.

I think these decisions should be regarded as having settled the point that a statute is unconstitutional and void which authorizes the transfer of one man’s property to another- without the consent of the owner, although compensation is made. The late Chancellor Kent, in reference to the decision in Taylor v. Porter, says, “ I apprehend that the decision of the court was founded on just principles, and that taking private property for private uses without the consent of the owner, is an abuse of the right of eminent domain, and contrary to fundamental and constitutional doctrine in the English and American law. (2 Kent's Com. 5th ed. note c, 340.)

But it is insisted that as the enactment is only held to be void on the ground that it takes private property for private uses against the owner’s consent, if the consent be given, all objection on the ground of unconstitutionality is removed. The decisions to which I have referred proceed "upon that principle ; and Mr. Justice Bronson, in Taylor v. Porter, in terms concedes that the objection has no application when the owner consents. If we read the statute in question with a proviso that the owner consent, and I think we should, that consent removes all obstacle, and lets the statute in to operate the same as if it had in terms contained the condition.

But it is said that even then the statute of frauds (2 R. S. 134, § 6) creates an insuperable difficulty in the way of the defendants, on the ground that such consent not being in writing, the title would still be void under it. But I think not. If the principles held in the case of Baker v. Braman, (6 Hill, 47,) are sound—• and I think that they are—they may be properly applied in this case. It was there held that the owner’s consent took away all objection to the statute in relation to private roads; although the road was an incorporeal hereditament and could not therefore be granted even at common law without a deed, as it was competent for -the legislature to create an exception both to the common law rule and the statute of frauds; and that the legislature had done so by the statute then in question. The action in that case was brought to recover the damages assessed by a jury, for a private road, which the commissioners of highways had laid out through the plaintiff’s lands pursuant to 1 R. S. 517, §§ 77, 78. It was there held that a person might renounce a constitutional provision made for his benefit, and that if a private road be laid out pursuant to the statute, with the consent of the owner of the land, the proceeding was valid, and that such consent need not be in writing; that a parol consent was sufficient; and that the bringing of an action after the road was so laid out and his damages had been assessed, was a sufficient manifestation of consent, and an adoption of the machinery provided by the statute for effectuating the grant. Lee v. Tillotson, (24 Wend. 337,) and The People v. Murray, (5 Hill, 472,) are cases to show that a party may waive a constitutiona. as well as a statute provision made for his own benefit.

As it respects the evidence to show the consent of the owners of the premises in question, to the taking thereof by the commissioners, under § 179, we have in proof their report and additional report, in each of which that fact in substance is asserted. In the report it is as follows : “ We have estimated and assessed the loss and damage to the said devisees of Daniel Aymar, from the said widening and improving of Ann-street, by and in consequence of their relinquishing their interest in the last described piece or parcel of land, which is required for that purpose, and also in the said residue so included and comprised as aforesaid, and in the buildings situated on said two pieces of land, to amount to the sum of eleven thousand two hundred and twenty dollars.” This report was made and signed by the commissioners on the 8th day of July, 1829. And having deposited a copy thereof, and given the notice required by law, for bringing in written objections, and that the same would be presented to the court for confirmation; the commissioners, on the 31st day of July, 1829, made an additional report, in which, after reciting the making of their report, the fact of depositing a copy thereof in the clerk’s office and of giving said notice, they further reported that the objections, papers and documents thereunto annexed, and none others, had been presented to them against their said assessment and estimate in the premises. That after the receipt thereof they reconsidered their estimate,