People ex rel. City of New York v. Lyon

Laughlin, J. (concurring):

I agree with Mr. Justice Houghton that the writ should be sustained and the proceedings of the assessors annulled, but I reach that conclusion on grounds somewhat different from the views expressed by him. I do not agree that the commissioners in the eminent domain proceedings td acquire lands for the approaches to the bridge made an award for the damages for which the assessors have made the award now under review. The fair inference from the record is that'in the estimate of damages by the experts for the ltndowners those damages were not included, for it appears that their attorney insisted that those damages were not recoverable in that proceeding, but were assessable by the board of assessors under the provisions of the statute under which the proceedings were had relating to damages for change of grade of streets connecting with the bridge and its approaches, and the chairman of the commission so ruled. That, however, does not avail the claimant now. When the authority of the board of assessors, who award damages, is questioned, clear warrant for their action must be found in the statute. Considering all of the provisions of chap*590ter 413 of the Laws of 1892, as amended by chapter 716 of the Laws of 1896, under which- this bridge was constructed, the land for these approaches was acquired, and the assessment now under review is sought to be sustained, it appears clear to me that the Legislature only intended to authorize the board of assessors to ascertain and award damages to the owners of land fronting upon a then existing street, the grade of which was thereafter changed to meet the grade of the bridge or of the approaches thereto, constructed upon the land acquired for such purpose. It would be unreasonable to impute to the Legislature an intent to relegate parties before the court in eminent domain proceedings to,.the board of assessors for part of their damages, unless such intent is found clearly expressed in the act. The damages, whether for land acquired or for a change of grade of a street, were required to be borne by the general fund, pursuant to section 4 of the act as amended, and an issue of bonds was authorized to raise moneys to pay the same. There would be force in the construction for which the landowners contended before the commission, that the consequential damages caused by the structure to be erected upon the land acquired for the approach were to be subsequently appraised by the board of assessors, if the statute did not require or contemplate that the plans and specifications for the bridge and approaches, including the grades thereof, should be prepared and finally approved before the condemnation proceedings were instituted. It was, however, expressly provided in section 1 of the act as amended, that nothing shall be done under this act until the plans and specifications for the said bridge' and approaches thereto, with the necessary abutments and arches as aforesaid, as well as the proposed changes hereby authorized in the grade line of the streets or avenues approaching the said bridge, shall have been submitted to and approved by the board of estimate and apportionment of said city.” Not only, therefore, had the plans and specifications been prepared before the commissioners of appraisal made the original awards, but this had been done pursuant to the mandate of the statute requiring it as a condition precedent to the right of the city to institute eminent domain proceedings under section 5 of the act as amended.

In these circumstances, therefore, the reasonable construction of the act is that the Legislature intended that all of the damages of *591the landowners, uot only for land taken and for damage to part of a parcel remaining caused by its diminution in size or form, but the additional damages caused by the approach to be erected on the part taken which would cut off access to the adjacent street, should also be awarded in the condemnatfon proceedings. With all the facts established at the time of the appraisal proceedings, it would be an unusual proceeding to relegate the property owner to the board of assessors for part of his damages. I would rather expect that the provision for damages for change of grade was designed to afford a remedy to property owners who were not parties to the appraisal proceeding, and this appears to be the fair construction of the act.

I am of opinion, therefore, that the act as amended did not authorize the assessors to award these damages. The statute requires this construction, regardless of whether or not the property owners were fully awarded in the eminent domain proceedings. I, therefore, vote to sustain the writ and to annul the proceedings of the board of assessors in making the award.

Determination reversed, .with fifty dollars costs and disbursements. Settle order on notice.