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169 N. Y. 270, 62 N. E. 358. But the same company was held liable to an abutting owner for damages caused by the erection of a station house which was not required by the act directing a change of grade. Dolan v. New York & H. R. Co. (1902) 74 App. Div. 434, 77 N. Y. Supp. 815. The rights of abutting owners as affected by the change of grade of Park avenue were also considered in Pape v. New York & H. R. Co. (1902) 74 App. Div. 175, 77 N. Y. Supp. 725.
Power cannot be given to a municipal corporation in opening a street to take the whole of a lot against the owner's consent, when part only is required for the street, whereby the corporation becomes the owner of the whole lot, with a provision that the part not needed for the street may be applied to private use.
"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; it is in violation of natural right.” Re Albany Street (1834) 11 Wend. 149, 25 Am. Dec. 618, construing 2 R. L. 416, $ 179, relating to streets in the city of New York. This statute was again considered in Embury v. Conner (1850) 3 N. Y. 511, 53 Am. Dec. 325, where it was said that while one man's property cannot, without his consent, be transferred to another under the exercise of the right of eminent domain, if it is in fact transferred with the owner's consent, a statute authorizing it is not objectionable on constitutional grounds.
As a general rule land in a city street which is discontinued or closed under lawful authority reverts to the adjoining owner, who thereupon becomes entitled to the land to the center of the street, and the city cannot hold the land as private property, and dispose of it to third persons. Re John & C. Streets (1839) 19 Wend. 659.
The general highway act (1 Rev. Stat.) so far as it authorizes the laying out of roads through wild and unimproved land, no mode for compensation to the owners being provided, is unconstitutional. Gould v. Glass (1855) 19 Barb. 179; Wallace v. Karlenowef ski (1854) 19 Barb. 118.
The grantor of land used by a plank road company has no reversion, and is not entitled to compensation on a surrender of the land to a town for highway purposes. Heath v. Barmore (1872) 50 N. Y. 302.
The owner of land in the city of New York included in a street laid out on a map made by commissioners under the act of 1813, chap. 86, is not entitled to compensation for buildings erected within
such street after the filing of the map. Re 127th Street (1878) 56 How. Pr. 60, Daniels, J.
“The right to property includes the right to use that property for any lawful purpose of profit to the owner.
Whenever that right is restricted, property is taken within the meaning of the Constitution." The legislature cannot constitutionally deprive an owner of property of the right to use it even to the extent of erecting buildings thereon in his discretion, by providing that such right shall cease on filing a map appropriating such land for public streets. A statute thus depriving the owner of the right to use his property takes it without compensation, and is unconstitutional. Re Rogers Ave. (1885) 29 Abb. N. C. 361, 22 N. Y. Supp. 27, Sp. T. Judge Cullen.
An easement in a street, the fee of which is in the city, is property, and cannot be destroyed or impaired without compensation to the owner. Story v. New York Elev. R. Co. (1882) 90 N. Y. 122, 43 Am. Rep. 146; Mahady v. Bushwick R. Co. (1883) 91 N. Y. 148, 43 Am. Rep. 661; Tiffany v. United States Illuminating Co. (1884) 67 How. Pr. 73, affirmed in 9 Jones & S. 280; Carter v. New York Elev. R. Co. (1888) 14 N. Y. S. R. 859, (1888) 134 N. Y. 168, 31
N. E. 514
The rule in the Story Case was applied in Egerer v. New York C. & H. R. R. Co. (1891) 130 N. Y. 108, 14 L. R. A. 381, 29 N. E. 95, where it was held that an abutting owner's right of access could not be destroyed or impaired by discontinuing the street without providing compensation for the injury sustained by him, or furnishing other adequate means of access.
A change of grade of a street is not a taking of property which will entitle an abutting owner to damages, even if such a change of grade is made by a private corporation under a contract with the city, provided the work is done with due care, and in a skilful manner. Wilson v. New York C. & H. R. R. Co. (1886) 2 N. Y. Supp. 65. See Re Comesky (1903) 83 App. Div. 137, 81 N. Y. Supp. 1049; also Re Borup (1905) 102 App. Div. 262, 92 N. Y. Supp. 624.
A change of grade of a street is not the taking of property, and an abutting owner is not entitled to compensation therefor. Talbot v. New York & H. R. Co. (1896) 151 N. Y. 155, 45 N. E. 382.
Where land is taken for a highway or street, and the public acquires only a right of way, with the powers and privileges incident to that right, the owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber, and earth, for all purposes not incompatible with the right of way (Jackson ex dem. Yates v.
Hathaway (1818) 15 Johns. 447, 452, 8 Am. Dec. 263; Higgins v. Reynolds (1865) 31 N. Y. 156; Niagara Falls Suspension Bridge Co. v. Bachman (1871) 4 Lans. 523; Fisher v. Rochester (1872) 6 Lans. 225; Williams V. Kenney (1853) 14 Barb. 629), and the public cannot lawfully take such materials without the owner's consent and use them on other parts of the highway, except that where the grade of the land is above the surface of the highway and it is necessary to remove a part of the soil for the purpose of providing access to the land, materials so removed may be used on other parts of the highway. Robert v. Sadler (1887) 104 N. Y. 229, 233, 58 Am. Rep. 498, 10 N. E. 428.
Hudson river, riparian owner.—The bank of the Hudson between high and low water mark belongs to the people, and a riparian proprietor has no better right to the use of it than any other person. The legislature may authorize erections in front thereof and any other citizen may navigate the same waters as well as the riparian proprietor. The legislature has power to authorize a railroad company to construct a road between high and low water mark, and an adjoining owner is not entitled to compensation. His property is not taken, and whatever loss he sustains is damnum absque injuria. Gould v. Hudson R. R. Co. (1852) 6 N. Y. 522, citing Lansing v. Smith (1826) 8 Cow. 146, affirmed in (1829) 4 Wend. 9, 21 Am. Dec. 89.
Muniments of tille.-A statute which assumes to destroy or nullify a party's muniments of title is just as effective in depriving him of his property as one which bestows it directly upon another. In the one case it despoils the owner directly, and in the other renders him defenseless against any assault upon his property. Gilman v. Tucker (1891) 128 N. Y. 190, 13 L. R. A. 304, 26 Am. St. Rep. 464, 28 N. E. 1040.
Oyster beds.-An oyster bed planted in public waters under legislative authority is private property, and it cannot, without compensation, be destroyed by sewage discharged upon it by a municipal corporation. “Any direct invasion of a man's land is a taking of his property within the meaning of the Constitution." The destruction of oysters by casting sewage upon them was as clearly a taking of property as their physical removal and conversion would have been. Huffmire v. Brooklyn (1900) 162 N. Y. 584, 48 L. R. A. 421, 57 N. E. 176.
The same rule was applied as to the effect of discharging city sewage on private property in Sommons v. Gloversville (1901) 34 Misc. 459, 70 N. Y. Supp. 284
Railroad aid.-A statute authorizing a town to issue bonds in aid of a railroad does not take private property for a public use within the meaning of the Constitution. Grant v. Courter (1857) 24 Barb. 232.
In Sweet v. Hulbert (1868) 51 Barb. 312, the supreme court declared unconstitutional the act of 1868, chap. 334, authorizing the town of Saratoga to issue bonds in aid of a certain railroad and donate the proceeds to the railroad company.
Snow and ice.--A municipal ordinance requiring the removal of snow and ice from sidewalks, and imposing a penalty on the adjoining occupant for a neglect to comply with the ordinance, is not the taking of private property within the meaning of the Constitution, but is valid as an exercise of the police power. Carthage v. Frederick (1890) 122 N. Y. 269, 10 L. R. A. 178, 19 Am. St. Rep. 490, 25 N. E. 480.
Taxation.-An assessment on adjoining land for the expense of opening a street is not the taking of private property within the meaning of the Constitution, but the exercise of the power of taxation. Striker v. Kelly (1844) 7 Hill, 9.
The transfer tax act of 1885, chap. 483, as amended by chap. 713, Laws 1887, is not obnoxious to the 14th Amendment. Wallace v. Myers (1889) 4 L. R. A. 171, 38 Fed. 184, citing Re McPherson (1887) 104 N. Y. 306, 58 Am. Rep. 502, 10 N. E. 685.
"If the proceedings of the taxing power have been so fatally defective, on account of a failure to comply with the requirements of the statute, that no title to the property of the taxpayer has passed to the purchaser at the tax sale," the taxpayer does not thereafter hold his property “at the mercy of the legislature, and subject to its power at any time, so far as he is concerned, to validate and give life and effect to the otherwise void sale.” His property cannot be transferred to a third person by a legislative act without giving him an opportunity to pay the tax. Croinwell v. MacLean (1890) 123 N. Y. 474, 25 N. E. 932.
"A freeholder cannot be deprived of his land under the taxing power of the state unless the procedure prescribed, when strictly construed, is substantially complied with.” Lockwood v. Gehlert (1891) 127 N. Y. 241, 27 N. E. 812.
Trade label.-"The right to a trade label is a property right." People ex rel. McPike v. Van De Carr (1904) 91 App. Div. 20, 86
N. Y. Supp. 644
Water.—The owner of land through which a stream of water funs has a valid right to the use of the water, and is private
property which cannot be taken for a public use without compensation. Gardner v. Newburgh (1816) 2 Johns. Ch. 162, 7 Am. Dec. 526.
An easement for the use of water in a running stream is property under this provision, and it cannot be destroyed or impaired without compensation to the owner. Arnold v. Hudson River R. Co. (1873) 55 N. Y. 661.
A municipal corporation has no power to widen a natural nonnavigable stream which runs through a person's land, and cut down the banks and remove the soil for the purpose of making the enlargement, without rendering compensation to the owner for the property so taken. In this case the owner, in compliance with a resolution adopted by the common council, had dredged the stream and removed certain obstructions therefrom on his own land, and afterwards the city authorities cut down the banks for the purpose of widening the stream; this was held an unauthorized taking of property. Schenectady v. Furman (1895) 145 N. Y. 482, 45 Am. St. Rep. 624, 40 N. E. 221.
An owner of land has no property right in subterranean water. "He does not own the particles of which it is formed. His property in the water is in its use while it remains upon or under his land; it is the usufructuary right, the same as in flowing water;" but he may recover damages from a municipal corporation which withdraws the water by means of driven wells on adjoining land. Westphal v. New York (1902) 75 App. Div. 252, 78 N. Y. Supp. 56; Reisert v. New York (1902) 69 App. Div. 302, 74 N. Y. Supp. 673; Forbell v. New York (1900) 164 N. Y. 522, 51 L. R. A. 695, 79 Am. St. Rep. 666, 58 N. E. 644; Smith v. Brooklyn (1899) 160 N. Y. 357, 49 L. R. A. 664, 54 N. E. 787, in which the same rule was applied as to surface water, the court saying that it is a well-settled rule "that no one may divert, or obstruct, the natural flow of a stream for his own benefit, to the injury of another;" that the "right to the use and enjoyment of a stream of water, running in a defined and natural channel, jure nature, appertains to the riparian landowners," and that any diversion of it is an interference with a natural right, for which damages may be recovered. Citing Von Wycklen v. Brooklyn (1890) 118 N. Y. 424, 24 N. E. 179.
Wharves.-The owner of a private wharf may be made subject to rules prescribed by harbor masters authorized to regulate and station ships and vessels in New York harbor. Such rules, if reasonable, are valid under the police power, and are not an unwarrantable interference with rivate property. Vanderbilt v. Adams (1827) 7 Cow.