In re Board of Water Supply of New York — 74 Misc. 146

Majority

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In the Matter of the Application of the Board of Water Supply of the City of New York to Acquire Real Estate in the County of Ulster, under Chapter 724 of the Laws of 1905 and the Acts Amendatory Thereof, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. Ashokan Reservoir. Parcels 20A, 44, 56A, 56B, 560, 78, 275, 781, 800, 801 and 868. Northern Aqueduct. Parcels 154, 155, 145, 164B, 189, 201 and 209.

(Supreme Court, Rensselaer Special Term,

November, 1911.)

Headnote

Eminent domain — Condemnation proceedings: Tribunal to determine compensation: Commissioners; Appointment — Notice; Term of office; Appointment of successors.

The term of. office of the commissioners appointed pursuant to chapter 724 of the Laws of 1905, to determine the awards to be made for lands taken for the- additional water supply of the city of New'York, is one year, and upon the expiration of that period other commissioners may be appointed to complete cases then remaining of which no disposition has been made.

Owners of property taken have no statutory right to have their eases disposed of by the particular commissioners first appointed, but their rights are satisfied by their being provided with an impartial tribunal.

- The statutory notice required to be given for the appointment of the original commissioners by whose appointment and qualification title was instantaneously and absolutely transferred to the city is not required for the appointment of new commissioners

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upon the expiration of the former’s term of office to conclude the business left unfinished, by them, but the notice of motion prescribed by the Code o'f Civil Procedure is sufficient^

Proceeding- to appraise the damages to be paid to owners of lands taken for the purpose of providing an additional supply of pure and wholesome water for the city of Mew York.

Wm. McM. Speer and Arthur S. Barnes, for city of Mew York.

"A. T. Clearwater, for owners of parcels 800 and 801.

.The question of damages as to eighteen parcels of land in the Ashokan reservoir region is undetermined. More than a year and eight months have expired since the oaths of office of any of the commissioners having jurisdiction over any of these parcels were filed. In order that these matters be cleaned up and disposed of, the corporation counsel asks that all these parcels be referred for consideration to one commission to be appointed now by the court. He might have asked that each of the old commissions, so far as the individual members thereof are alive and available., be reappointed to complete this unfinished work; but he asserts that, in asking for one commission to consider- these odds and ends of matters undisposed of, his object is economy and expedition, particularly the latter.

This motion is opposed by one of the commissioners who was appointed for section 16 and also by the owner of one parcel who has filed a claim with that commission and by one owner who has not filed a claim.

The commissioner who opposes this motion does so because he construes it to be an attempt to remove the members of his commission from office and, after some preliminary remarks-in his brief, he says: “ The issue is thus narrowed down to the question whether their (the commissioners’) term of office has expired * * * ”; it being apparent to him as it is to the court that, if their term of office has expired, this motion cannot, though viewed from whatever angle, be considered as an attempt to remove the commissioners. Chapter

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724 of the Laws of .19 05 is the statute creating and regulating- these commissions. Section 5 first mentions the subject of the duration of the commissions. It provides that the whole territory be divided into sections no longer than can reasonably be passed upon and awards made by said commissions within the limits,of a year. 'Section 12 provides that commissions shall without unnecessary delay ascertain and determine the awards to be made. Section 14 provides that, for good reasons shown, the court may extend the time eight months for filing said report (not for taking testimony).

The term of office of the commissioners is fixed by statute, clearly. It is one year. For good reasons shown it may be extended eight months to enable them to file their report. Then it ends absolutely. Mo contingency provided for in the statute and no power vested in the court can extend it further. The same commissioners may, I have no doubt, upon proper application and if the court thinks it wise, be reappointed; but that is foreign to the question under consideration, for nobody has at any time made such an application. As has been seen, commissioners have no certain lease of life beyond one year. A request for an extension of this lease, even within the statutory limits, is addressed to the discretion of the court. It may be granted or denied. It would seem to be useless to reason further, were it not for the language of section 19, which says: “ Every owner or person in any way interested in any real estate taken * * shall within three years after the appointment of the commissioners of appraisal, exhibit to the said commissioners a statement of his claim and shall thereupon be entitled to offer-testimony and to be heard before them touching such claim and the compensation proper to be made him, and to have' a determination made by such commissioners of appraisal as to the amount of such compensation.” This section at first glance would appear to be in conflict with the previous sections mentioned and, being a subsequent enactment, it would, therefore, under the well-known law of statutory construction, if it does conflict, .prevail over the prior enactments. But a careful consideration shows that it conflicts in no manner, for its only purpose is.to give property-owners three full years in which to file their claims, not before par

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ticular individual .commissioners, -but before a commission. If the commissioners first appointed have died or gone out of office, other commissioners, upon application, must be appointed. That is, the property-owners must, for a certain length of time (three years), be furnished with a court — that is the intent of the section and, so far as our question here goes, that is the entire intent.

The fixing of' a time limit to these commissions was arbitrary but not accidental. The clear purpose of the Legislature, as disclosed in several places in the statute, was to have the surface of this territory divided into sections of such narrow and convenient limits, that a commission could view it, hear testimony concerning it and pass upon it " within the limits of a year.” This was to hurry along the work of this vast project and avoid the danger of procrastination — a danger well known by the legislators to be grave — a danger growing out of that human tendency lurking in the breast of every commissioner to prolong so good a job indefinitely,

I, therefore, conclude that the term of. office of these commissioners has expired and that this is not an attempt, direct or indirect, to remove them.

Counsel for the owner of parcel 801 goes further with his contention apd argues that the property-owners, under section 19, are accorded the right to have their claim heard before these particular commissioners. He lays emphasis upon the words in section 19, “ and to have such a determination made by such commissioners of appraisal.” There is no such purpose 'disclosed in the section, and there is no conceivable reason why it should be so; for, in contemplation of law, no commission possesses any excellency or superiority over any other commission. So long as the claimants are furnished with a court — an impartial court — the personnel thereof is of no importance. Each commissioner must be absolutely fair and impartial. Any corrupt bias, or other bias or cause, unbalancing the judicial poise of. a commissioner, will result in instant removal. If, then, the claimant be supplied with an impartial tribunal, he has no grievance to present to the court and no standing to clamor for the retention of any particular commissioner.

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Further objection to the appointment of this commission is made, because notice by handbills and advertisement has not been given as provided by section 8. The extensive, extravagant, and, to my mind, wholly unnecessary, notice provided for in this section, if it ever had any useful purpose at-all, was required because the appointment of the original commissioners and the taking of their oaths of office resulted by operation of law in the instantaneous and absolute transfer of the title of the real estate from the owner to the city. As soon as -the oaths of these first • commissioners were administered, the city became seized immediately and perpetually of the fee of the land. ' To give the owner abundant opportunity to prepare to make legal objection to this involuntary transfer of his title, this long and unusual notice was provided for. In this case the notice was given and the title has passed. Nothing remains but to fix the damages. The Legislature foresaw and provided for certain contingencies (not the exact one under consideration here) where new commissioners might have to be appointed. Knowing that the' previous owner would not in such case be concerned with the passing of the fee, but only with the assessment of the damages, a much shorter and different notice was provided for. This notice is prescribed in section 12. The manner of giving notice for this particular motion and the length thereof is not prescribed in the statute. In the absence of such direction the corporation counsel resorted to the Code for guidance, the only other place to which he could go, and gave the usual notice of motion required therein. • That. it was ample and fair and conforms to the law seems entirely clear to me.

It only remains to consider whether, as a matter of economy and expedition, the motion should be granted. I took the position in an opinion which I wrote in. the matter of the application of the commission appointed to assess damages to highways, that only one commission should have been-provided for originally. I am yet of the same opinion; - and it seems to me wiser that all these odds and ends of unfinished business be narrowed down to one commission rather than to rejuvenate and bring back into being all these various com

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missions. That one of the parcels to be considered is a large and important claim in no way varies the situation, for the smallest claim must receive the same consideration as the largest one.

The motion is granted and the various parcels are all referred to the commission recently appointed by me to try the claim sent back for reconsideration in section 10.

Ordered accordingly. "