Summaries of 1885 New York Court of Appeals Decision that Paved the Way for Pelham Bay Park

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The creation of Pelham Bay Park during the 1880s is one of the most significant events in the history of the little Town of Pelham.  Indeed, creation of the park has likely protected Pelham and other parts of today's lower Westchester County from annexation by the adjacent behemoth, New York City.  

During the last decades of the 19th century, however, many Pelhamites (and others) battled against creation of the park.  With legislative authorization, New York City was using eminent domain to acquire lands in Pelham (i.e., lands outside the New York City limits) to create a park for city residents.  Although some in Pelham opposed the concept, most who battled the city were simply those whose lands were being acquired.  Some joined the battle because they were angry over losing their homes or lands.  Others, however, joined the battle because they did not believe they were receiving a fair price for the taking of their properties.  

Regardless of the various motivations of those who joined the battle, the fact remains that many fought the move by New York City to create Pelham Bay Park.  One of the principal elements of the battle, of course, was founded on the Great American Pastime:  lawsuits.

After New York enacted into law in 1884 "An act laying out public places and parks in the twenty-third and twenty-fourth wards of the city of New York, and in the adjacent district of Westchester County, etc., Chap. 522, Laws of 1884, the Supreme Court (the trial court level in New York) entered an order finding that the statute did not violate the New York Constitution and appointing commissioners to appraise the lands that would be taken from Pelham landowners through eminent domain for creation of Pelham Bay Park so that fair payments would be made to the property owners.  Pelham property owners appealed the order and sought review by the New York Court of Appeals (the highest court in the State of New York).  

The appellants sought reversal of the order below and argued that the New York statute authorizing the taking of lands "in the adjacent district of Westchester County" (i.e., Pelham) violated the New York State Constitution for a number of reasons (see below).  On October 6, 1885, the New York Court of Appeals rejected all such claims by the appellants and affirmed the decision of the court below thereby paving the way for the eminent domain process, including takings, appraisals of, and payments for Pelham properties needed for creation of Pelham Bay Park.  See In re Application of the Mayor, Aldermen and Commonalty of the City of New York to Acquire Title to Certain Lands for Public Parks, 99 N. Y. 569, pp. 569-99 (N.Y. 1885).   


Local newspapers reported extensively on the decision.  Indeed, Mount Vernon's "The Chronicle" devoted much of the front pages of two of its weekly issues of the newspaper to the decision on October 30 and November 6, 1885.  Those reports are quoted in full at the end of today's Historic Pelham Blog article with each followed by a citation and link to its source.  The newspaper summaries of the Court of Appeals decision reveal much about the battles to block the development of Pelham Bay Park.  With resolution of these issues by the Court of Appeals, however, property owners were left to fight the appraisal process and to argue that they should be entitled to as much money as possible for their properties -- the battle that followed and lasted for years until all the necessary parcels had been assembled for the new park.

1905 Map of Pelham Bay Park.  Source: Office of the President of

the Borough of the Bronx Topographical Bureau, Topographical

Survey Sheets of the Borough of the Bronx Easterly of the Bronx

River, Sheet 29 "Map of Pelham Bay Park City of New York Forming

Sheet 29 of the Topographcial Atlas of the Territory East of the Bronx

River" (1905) (Lionel Pincus and Princess Firyal Map Division, The

New York Public Library).  NOTE:  Click Image to Enlarge.

*          *          *          *          *

"THE COURT OF APPEALS ON THE NEW PARKS.

The opinion of the Court of Appeals in the matter of the new parks for New York city was written by Justice Finch, and is a very able and exhaustive document.  It would, if printed in full, fill about seven columns of the Chronicle.  Much of it however deals with questions of interest mainly to the to the legal profession, and such parts we propose to summarize.

He begins by saying:

Numerous provisions of the Constitution are claimed to have been violated by the enactment of the law authorizing and requiring the acquisition and maintenance of new public parks by the City of New York.  The large interest involved and the importance of some of the questions raised, have subjected the act to a patient and critical examination both in the Court below and upon the argument at our bar; and seems to demand from us a full statement of the reasons upon which our determination is founded.

It is claimed that the title of the act violates that provision of the Constitution, which requires that a private or local bill shall embrace but one subject which shall be expressed in the title.  The title is 'An act laying out public places and parks and parkways in the 23rd and 24th wards, of the City of New York, and in the adjacent district in Westchester County, and authorizing the taking of lands for the same.'

Section 6 of the act authorizes the use of a part of the Van Cortlandt Park for a rifle range and parade ground; and Section 12 extends the jurisdiction of the Department of Public Parks over the new acquired territory.

It is claimed that these provisions of the act are not expressed in the title, and that the act embraces more than one subject.  

The Court of Appeals says:  

The criticism is quite too rigid and narrow.  It would lead us to a condemnation which few titles would escape until they became cumbersome and awkward digests of the details of their enactment.  What are here denominated new subjects are fairly and reasonably elements and details of the laying out of new parks, and the acquisition of lands therefor, and so embraced in the one general subject of the bill.  The most valuable test of such a title, and the one which we have usually employed, is the inquiry whether the title was so framed as to be deceptive or misleading, and consummated the evil at which the constitutional prohibition was denied (Matter of Lands in Flatbush, 60 N. Y., 398; Matter of Paul, 94 N. Y. 397).  Where one, reading a proposed bill with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislator are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law.  But where, as in the present case, no such evil lurks in the title, and the provisions criticised [sic] may be easily and reasonably grouped within the scope and range of the general subject expressed, we ought not to destroy the legislation assailed, upon some nice and rigid criticism of forms of expression.  How the parks should be used and governed is a natural detail of their laying out and acquisition, and not the introduction of a new and foreign subject.

Another objection to the act was that it makes no provision for just compensation of land owners.

The Court says:

While it is not necessary, in advance of the taking, to pay to the landowner his compensation, it is necessary that the act which invades his ownership shall provide for a certain and definite and adequate source and manner of payment (Sage vs. City of Brooklyn, 89 N. Y., 189).

It is further argued that the act violates the Constitution in that it commits the estimate and appraisal of the damages to two commissioners.

The Court says:

This objection is founded upon a misconstruction of the act by taking a phrase from its surroundings and reading it with literal severity.  Section two provided for the appointment by the Supreme Court of three disinterested persons as commissioners to estimate damages, who are to take the oath of office and then proceed with due diligence to make a just and equitable estimate.  Section eight then provides for action by a majority of the board, when only such a majority are acting or agreed.  It may be conceded that the provision might have been more accurately expressed, but about its meaning and proper construction there can be no just doubt.  The phrase relating to all the commissioners, 'if they had acted therein,' and that relating to such two 'as shall be acting in the premises,' indicate that the provision refers to a case where one of the three, having opportunity to act, declines to do so, or is unable to be present, or differs from his associates, and was not meant and cannot be held to give to two the right to exclude the voice or vote of the third.  If under this act two of the commissioners, without notice to the third and ignoring his right should assume to make an appraisal, we should easily hold it to have been unauthorized by the statute; for the provision of section two which requires the three commissioners to make the appraisal with due diligence and to ascertain the damages, must be read in connection with section eight, and it could not be said that the commissioners made the appraisal when one of them was excluded; but it could be and would be true, as in all cases of action by a majority, where the third had notice and opportunity to participate but omitted or was [illegible].  In case of death, resignation, disqualification or refusal to act the law provides for a substituted commissioner (Section 7), so that the province of section eight is narrowed to the case of a disagreement, or a temporary or incidental absence.  In these provisions we discover no purpose to evade or violate the fundamental law, and deem it our duty to adopt a natural construction in consonance with what beyond any doubt was the legislative intention.

Another objection to the act is that it is unconstitutional because no sufficient notice is given to the owners of the lands to be taken.

The court says:  The act does provide a notice and hearing.  It is true, it is by publication but this is sufficient.

Another contention is that the act undertakes to extend the jurisdiction of Department of Parks over the newly acquired territory, even that in Westchester County.  

By the terms of the New York charter that department has charge of the protection and maintenance of the city parks, and is authorized to appoint policemen for the preservation of peace and order, who, within the parks, are vested with the same power and authority as the police of the city.  For a breach of the peace or an offense committed in Pelham Bay Park, and within the County of Westchester, the arresting officer might be required to take his prisoner before a magistrate of the adjoining county.  This provision of the act, it is said, violates section two of article ten of the Constitution, which preserves to counties, cities, towns, and villages the right to elect their own local officers, and to have them appointed by some designated local authority.  If that were true, it would merely annul an unessential detail of the act; but we do not see how the section is infringed.  The park police do not become Westchester County officers.  No official of that county is legislated out of office, and successors appointed by State authority, as was the case, upon an insufficient pretext, in People vs. Albertson, 55 N. Y., 50; nor are the powers and duties of any officer in Westchester so curtailed or destroyed as practically to subvert his office and bestow it on another, as was the case of the Sheriff of Albany County in People vs. Keeler, 29, Hun, 175.

The most serious question is whether the purchase of land for a park outside the city limits is 'a city purpose' and hence whether a debt therefor is unconstitutional.

Upon this point we propose to give the opinion of the Court of Appeals in full in our next issue."

Source:  THE COURT OF APPEALS ON THE NEW PARKS, The Chronicle [Mount Vernon, NY], Oct. 30, 1885, Vol XVII, No. 841, p. 1, cols. 3-4.  

"THE DECISION OF THE COURT OF APPEALS AS TO THE PELHAM BAY PARK.

Last week we gave our readers a summary of the opinion of the Court of Appeals on all but one of the questions brought before it in relation to the new parks.  This week we give hereunder in full, so much of the opinion as relates especially to the Pelham Bay Park.

It appears to be conceded and has not been denied that the acquisition and maintenance of public parks, securing pure air and healthful rest and recreation to the people, is a 'city purpose,' when executed within its corporate limits; and the sole contention is that it ceases to be a 'city purpose' when, in any degree or to any extent it moves outside of these boundaries.  What is the change which transforms the inherent nature and character of a 'city purpose' when it passes the municipal lines, we are told only by a grouping of extreme consequences, foretold as possible results.  If the city may go three miles from its nearest boundary, and with the connecting ribbon of a 'parkway' take Pelham Bay and Hunter's Island, why, it is asked, may it not take the falls of Niagara or a mountain of the Adirondacks, or land in Dutchess County, and building a road thither, claim it to be a 'city purpose'?  The question is a fair one and demands a satisfactory answer.

But before discussing the subject on its merits, it is best to secure the guidance and instruction of such precedents as exist, for the question will be found, I think, to be scarcely an open one.  No one controverts that it was a proper city purpose for the metropolis to spend numerous millions outside of its corporate limits in the purchase, forty miles away, of water rights and land for dams and reservoirs to supply the citizens with water.  It is true that the purpose contemplated was to bring the pure water to the citizens, while here it contemplates leading the citizens to the pure air.  Granted that the necessities are not equal, and the modes of supply differ, and yet that test of a city purpose, which asks if the property bought and the money spent go outside of the corporate boundaries, must be abandoned.  It will not serve for a rule.  The question was fully argued and frankly decided in the Brooklyn Bridge case (People ex rel. Murphy vs. Kelly, 76 N. Y., 475).  That enterprise was first undertaken by a private corporation, the two cities being stockholders, New York to the amount of one million, and Brooklyn of two million of dollars.  During [illegible] construction, the Constitution was amended by what is now section eleven of article eight, and which, forbidding a debt for anything but a city purpose, also forbade the ownership of stock in a private corporation.  The Legislature met the difficulty by providing for a dissolution of the corporation, and making the work an improvement of the two cities to be completed at their joint expense; Brooklyn, however, to pay two-thirds of the same, and the whole expense not to exceed eight millions of dollars.  A refusal to issue the bonds and advance the necessary means, when it became apparent that the cost would overrun the statute limits, brought the case into the Courts.  It was plain that the money of each city was being expended beyond its own boundaries, and upon a structure which, as to each, stood in part outside of its corporate limits; and equally plain that the bridge was not an imperative necessity, but only a great and useful convenience.  It was contended in this Court that it did not constitute a city purpose; and the precise question was whether it did or not, by reason of each city's expenditure and construction beyond its own bounds.  We decided that question; and here repeat the language used, both because of its authority and because of the attack now made upon its doctrine.  Earl, J., writing the prevailing opinion, declared:  'Nor can it be said that the indebtedness authorized to be incurred by the cities for the construction of the bridge was not for a city purpose. * * *  It would not be a city purpose for the City of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson River generally between that city and Albany, although incidental benefits might flow to the city.  Such works have never been regarded as within the legitimate scope of municipal government.  On the contrary, it would be a city purpose to purchase a supply of water outside of the city and convey it into the city, and for such purposes a city debt could be created.  So lands for a park could be purchased outside of the city limits and yet conveniently near thereto.  *  *  *  It cannot, therefore, well be held, as claimed by the learned counsel for the appellants, that what is meant by a city purpose is some work or expenditure within the city limits.  There could be no good reason for such a limitation.

'It could be no worse for a city to incur a debt for a city purpose outside the city limits than for one within such limits, and there is just as much reason for allowing it to be incurred in the one as in the other.  *  *  *  It would have been a city purpose if either city had been authorized to build the whole of the bridge, and it is none the less so that both are to unite in building it.'  Such is the doctrine which this Court has declared.  We are now asked to repudiate it as hastily and carelessly uttered.  With how little of justice that can be said of the language we have quoted may be made apparent by the records of the case itself.  The question was involved in the controversy.  It was raised and discussed by counsel quite sure to omit no pertinent suggestion.  In the opinions just quoted Judges Rapallo, Andrews and Danworth concurred.  Chief Judge Church and Judges [illegible] Folger dissented.  The dissenting opinion was written by Judge Folger.  It bears the marks of the characteristic modesty with which he differed from his associates, and of his conscientious industry in searching for the truth; and yet there is no word in it of dissent from the doctrine we have quoted, but the whole opinion is put upon the force of the limitations as to cost.  It is safe, therefore, to infer that the Court were unanimous as to the doctrine under consideration, although the case was thoroughly sifted by a formidable dissent.  Beyond that, we shall hope in the end to vindicate the doctrine so earnestly assailed upon the present appeal, outside of authority and on its extrinsic merits.

The legislation out of which grew the Prospect Park of the City of Brooklyn came before this Court.  (Matter of Land in the Town of Flatbush, 60 N. Y., 398).  The original act constituted the park out of lands in the city, and adjoining lands in the Town of Flatbush, and lands in the Town of New Lots for the special use of a parade ground (Laws of 1859, Chap. 466); and afterwards additional land was taken in the Town of Flatbush (Laws of 1866, Chap. 853).  Authority to contract debt for the payment and make temporary loans was also given (Laws of 1868, Chap. 493).

The question raised in this Court was over the right to assess lands in Flatbush adjoining the park for benefits, and was held that the improvement was so entirely in the interest of the city that adjoining lands in the neighboring town could not be assessed for the cost.  There is a feature in the Brooklyn acts which to some extent distinguished them from the act before us.  The lands acquired were annexed to the City of Brooklyn, and its entire municipal jurisdiction was thrown over the newly acquired territory.  But the case after all was not one of a mere extension of the city's area.  It was not essential to such extension that any land should be purchased, and the real city purpose was the taking for a park and not with a view of enlarging the city boundaries.  The latter measure was but a governmental step deemed best for the control of the lands purchased for a park.  In the Brooklyn case the annexation consisted in throwing over the Flatbush lands the complete jurisdiction of the city.  In the New York case the annexation is incomplete and pro tanto since only the authority of the city Department of Parks is extended to the outlying lands.  But at least this instance suggests the inquiry whether there has not been still other legislation indicating what had long been deemed city or village purposes, and so putting construction upon that phrase as used in the Constitution.

The statutes relating to rural cemeteries furnish such indication.  In 1847 villages were authorized to purchase and hold lands for purposes of burial, but some of the language used indicated an intent to confine them within the corporate limit.  But in 1869, (Chap. 727), cities and villages were authorized to acquire such lands adjoining their existing cemeteries, and all other restrictive language was carefully omitted; and then in 1870 (Chap. 760), the permission was made general without even the restraint of adding to an existing cemetery, and authority was given to borrow money for the purpose.  Is it true that it is not a city or village purpose to go outside of the corporate lines to buy and adorn in the quiet of the country a place for the burial of the dead?  Or, must health and propriety by violated by interments within city bounds unless private corporations come to the rescue?  It seems not to have been so understood.  In 1847 (Chap. 141), the village of Norwich was authorized to receive and hold title to land not more than one mile from its boundaries, and to purchase additional adjoining lands.  In 1862 (Chap. 71), the village of Dunkirk was empowered to locate a cemetery within or without its corporate limits but within the town.  And in 1858 (Chap. 72), the then village of Elmira was authorized to buy fifty acres of land for burial purposes within or near its municipal boundary, and to borrow ten thousand dollars for payment of the cost.  For the preservation of the public health a city or village may certainly purchase land beyond its boundaries for a hospital or pest-house, and so remove the danger of infection.  Cities and villages planted upon navigable streams may have granted to them ferry rights, and own and control them.  We have just held that the City of Hudson has a a ferry right to Athens, and the village of Athens a ferry right to Hudson.  Are we to say that it is not a city purpose of the one nor a village purpose of the other to buy and own land for slips or landings, or ferry-houses on the opposite shore, because beyond their own boundaries and in another town or county?  It is true of all these cases that either wholly or partly the land purchased can only be used by going out of the city or village, and not by bringing anything in as in case of the Croton water.  The dead and the sick must be carried out, and friends and attendants must follow, but does that make a constitutional difference?  The truth is that neither in authority nor in the legislative practice, nor in the common sense of the question is there any basis for declaring that there can be no true and sound municipal purpose which reaches beyond the corporate lines; and we are sure that the enterprise under consideration does not fall under a constitutional ban, because it is in part to be executed outside of the city limits.  And yet that is not the end of the question, and the inquiry as to a park at Niagara, or in the Adirondacks remain unanswered.  Beyond question neither would be a city purpose, and when we have determined why, we shall have approached at near to what is the true test as the nature of the subject will permit.  Whiles, as was said in one of the cases cited, it is impossible to formulate a perfect definition of what is meant by a city purpose, yet two characteristics it must have.  The purpose must be primarily the benefit, use or convenience of the city as distinguished from that of the public outside of it, although they may be incidentally benefited, and the work be of such a character as to show plainly the predominance of that purpose.  And then the thing to be done must be within the ordinary range of municipal action.  Acquiring and maintaining parks is within that range.  Acquiring them so near to the city as to make them convenient and accessible, and likely to be overtaken and surrounded by the city's growth, satisfies the first condition, while a park in the Adirondacks or at Niagara would not satisfy it at all, but would clearly indicate and conclusively prove an underlying purpose different from the city's use and convenience, and of which that use and convenience was but a pretext and cover.  Where the enterprise is of such a character that it may be justly so described and breeds in the impartial mind a conviction that the use and benefit of the city is but a pretext disguising some foreign and ulterior end, we may easily deny to it the attributes of a city purpose.  But the case must be a clear one, and so clear as to justify a reversal of the legislative judgment manifested by the enactment.  No such state of facts exists here.  When the Brooklyn park was planned the first step taken by the Legislature was to authorize the appointment of a commission to select the site.  They were not confined to the corporate limits, but were to act, not merely in view of the present condition, but also in view of the future growth of the city.  That example was followed in authorizing the New York Commission.  It was directed to recommend parks within the city and 'the adjacent district of Westchester County.'  They were not left to stray at large.  Their authority kept them near enough to the city to subserve, in the judgment of the Legislature, the city's use and convenience.  They were also directed to act, having in view the 'present condition and future growth and wants of the city.'  That an ordinary city may be, and often should be, planned and executed with reference as well to future as present needs, cannot be denied.  The city may lay out a wide street when a narrower one would answer present wants, and extend it beyond habitations and immediate needs.  The city may erect a public building, having in view future necessities, and exceeding the demands of present use.  That is often true economy and wise municipal administration.  The adjoining district of Westchester County, in which a portion of the park was located, is a triangle shut in between the city and the river on the east and west, and an extension to the river of the city's north line.  That the current of city population will soon overflow this triangle, and the corporate boundaries embrace it, the commission judged, and the Legislature determined -- thoughtfully, with deliberation, after careful study and investigation upon facts not before us, and with the opportunity and the aid of personal examination.  It would require a very clear and very strong case to justify a court in pronouncing such a conclusion to be but a fraudulent cover for some ulterior design foreign to the city's welfare.  Such is not the case before us.  We must assume what we can see is at least possible and perhaps probable, that the lands over the borer are so near, so convenient of access, so likely to be overtaken and surrounded by the city's growth, so desirable for the health and recreation of the citizens, and so cheaply to be overtaken and surrounded by the city's growth, so desirable for the health and recreation of the citizens, and so cheaply to be got in comparison with the consequences of delay, as to indicate a primary and predominant city purpose in a matter itself within the ordinary range of municipal action.  

Much more might be added upon this interesting subject, but the reasonable limits of an opinion have long since, and reluctantly, been passed.

The order should be affirmed with costs.

'All concur, except Rapallo, J., not voting.'"

Source:  THE DECISION OF THE COURT OF APPEALS AS TO THE PELHAM BAY PARK, The Chronicle [Mount Vernon, NY], Nov. 6, 1885, Vol XVII, No. 842, p. 1, cols. 3-5.

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