
    Helen A. Bunyan, as Executrix of and Trustee under the Last Will and Testament of James Bunyan, Deceased, and Others, Respondents, v. Commissioners of the Palisades Interstate Park and Others, Appellants, Impleaded with The Conklin & Foss Company, Respondent.
    Third Department,
    May 5, 1915.
    Eminent domain — condemnation of lands for Palisades Park— equitable suit for injunction—jurisdiction of Third Judicial Department — suit by bondholders of corporation — when suit in equity lies although condemnation proceedings are pending — statutes construed — determination involving issues of law only — condemnation of lands for aesthetic purposes — interest of private landowners in success of condemnation.
    The Commissioners of the Palisades Interstate Park, appointed pursuant to chapter 170 of the Laws of 1900, as amended, are State officers, and the Board is presumptively located at the capital of the State. Hence, the Supreme Court, in the Third Judicial Department, has jurisdiction to grant an injunction in a suit in equity brought against said State Board to restrain an attempted condemnation of lands, although the same are situate in the Second Judicial Department.
    The holders of bonds issued by a domestic corporation engaged in quarrying upon lands sought to be condemned by the Palisades Interstate Park Commission may maintain a suit in equity seeking to enjoin such condemnation although they have not first applied to the corporation itself, or to the trustee under the mortgage, asking that such action be brought. This because, first, a judgment against the corporation would be ineffective as against the bondholders unless they were made parties to the action, and, second, because the duties of the trustee do not involve the protection of the bondholders from outside attack.
    Under the statutes authorizing the Commissioners of the Palisades Interstate Park to condemn lands, an owner aggrieved may only raise legal objections to the condemnation which appear upon the face of the papers; but the statute affords no opportunity to raise any questions which will involve the determination of an issue of fact. Hence, it seems, that where the objection of landowners to condemnation proceedings instituted by said Commissioners will require the determination of facts not appearing upon the face of the proceedings, they may maintain a suit in equity to enjoin the condemnation although proceedings for the latter purpose are pending.
    But an objection that the lands aforesaid cannot be condemned in that the appropriation is purely for aesthetic purposes and not for a public use involves the determination of a legal question only, and hence does not f urnish a basis for a suit in equity. The condemnation of said lands for the purpose of conserving the Palisades as an adjunct to a public park is for a public use and within the power of the Legislature.
    Said proposed condemnation is not for a private use merely because private persons desire the discontinuance of quarry works, which are an annoyance, and have contributed to the cost of acquiring the lands as public property, and the condemnation cannot be attacked upon this ground, there being no contention that the lands are to be used for private gains, or that the Commissioners are acting in bad faith. It is for the Legislature to determine the necessity for the exercise of the right of eminent domain and the objection aforesaid involves a legal question only, not a question of fact. Hence, it furnishes no basis for a suit in equity to restrain the condemnation.
    Appeal by the defendants, Oommissioners of the Palisades Interstate Park and others, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Otsego on the 3d day of February, 1915, which sent to a referee the questions of fact arising upon a motion for a temporary injunction herein, and adjourned the determination of the motion until such referee should have taken evidence and reported thereon.
    
      George A. Blauvelt, John F. Murtaugh, Joseph A. Kellogg and Joseph A. Warren, for the appellants.
    
      Arnold & Cooke [Charles E. Hotchkiss, Lynn J. Arnold and Harold C. McCollom of counsel], for the respondents.
   Smith, P. J.:

This action was originally brought by certain holders of bonds issued by the Conklin & Foss Company, which was a corporation engaged in quarrying upon certain land in the. county of Eockland, in the State of Hew York, bordering upon the Hudson river. Thereafter all the bondholders and stockholders of the said corporation were made plaintiffs. The Commissioners of the Palisades Interstate Park have, pursuant to the statute, filed maps and published notice of their intention to condemn certain land adjoining the Hudson river upon Hook Mountain, which includes the land of the Conklin & Foss Company. This action is brought to enjoin such attempted condemnation, and the order here appealed from was made upon a motion for an injunction against the attempted condemnation pending the trial of the action.

These Commissioners assert their power to condemn under chapter 110 of the Laws of 1900, as amended and extended by chapter 691 of the Laws of 1906, and as further amended and extended by chapter 361 of the Laws of 1910. The land authorized to be condemned within these statutes is all situated either in the counties of Eockland or Orange in the Second Judicial Department. This injunction order is sought in the Third Judicial Department. It is first claimed by the Commissioners that under section 605 of the Code of Civil Procedure these State officers cannot be enjoined by a court sitting in the Third Judicial Department. It is not perfectly clear whether these be State or local officers. Assuming, however,, that they may be deemed to be State officers, as is more probable, they are required to advertise in the city of Albany; to make their reports to the Legislature there sitting, and to file their records in the office of the Secretary of State. The location of any State Board is presumptively at the capital of the State. If the Attorney-General were seeking an injunction against this Board it would be unreasonable to require him to go either to the First or Second Department to prosecute the injunction. The Third Department is primarily the official department of the State, and an injunction granted in that department as against the State Board is, therefore, authorized.

The next ground of challenge to this application is that these bondholders cannot bring this action without first having applied either to the corporation or to the mortgage trustee, and only then upon the refusal of such trustee to act. The corporation clearly does not represent the bondholders. A judgment against the corporation would have no effect whatever as against the bondholders unless they were made parties to the action. The mortgage trustee represents them in a limited capacity. He has certain duties imposed by the trust mortgage. There is no express duty therein imposed to protect the bondholders from outside attack, and if a trustee thus appointed were held bound to protect the interests of the bondholders from any action which might impair the value of the security, such trustee would have duties far beyond any expressed in the trust instrument or ordinarily contemplated by those accepting such position of trustee. That this action may be brought by the bondholder without a request to the trustee would seem to be held in the action of Carter v. Fortney (170 Fed. Rep. 463), and this decision was further sustained by the United States Circuit Court of Appeals in the same action under the title of Fortney v. Carter (203 id. 454).

A more difficult question is raised by the contention of the Commissioners that these plaintiffs have full remedy for their grievances in the condemnation proceedings pending in the Ninth Judicial District, and with this complete remedy at law equity will not intervene in their behalf. To determine the question thus presented it is necessary to examine critically the nature of the condemnation proceedings as authorized by chapter 170 of the Laws of 1900. By section 4 of this act this Board of Commissioners was given power “to select and locate such lands lying between the top of the steep edge of the Palisades and the exterior of the bulkhead line established by law upon the Hudson river, together with such separate parcels of unimproved lands lying on the front of the top of the Palisades from the New Jersey State line on the south to Piermont creek, near Piermont in Rockland county, on the north, as may in their opinion be proper and necessary to be reserved for the purpose of establishing a State park and thereby preserving the scenic beauty of the Palisades.” This land the Board was by section 5 of the act authorized to acquire if necessary by eminent domain. By section 6, before proceeding to acquire such lands the Commissioners were required to have made a map of such land, showing the boundaries and the names of the owners or reputed owners, and to ascertain as nearly as may be the fair value thereof. A copy of this map was required to be filed with the Secretary of State, and also with the clerk of Rock-land county. By section 7 of the act it is provided that after the filing of the said map said Commissioners should publish for twenty successive weeks, both in the State paper and in a paper printed and published in the county of Rockland, a notice declaring that said Commissioners intend to appropriate said land and hold the same in trust for the People of the State of Mew York, and that said Commissioners intend to apply to the Supreme Court in the Second Judicial District on the day specified for the appointment of three freeholders, residents of the State of Mew York, to act as commissioners of appraisement, to ascertain and report the just compensation to be paid therefor. By section 8 it is provided that upon the day designated in said notice, or some other day to be named by the said court, “the said court shall hear the application of the said commissioners, and shall appoint three disinterested persons, freeholders and residents of the State of Mew York, commissioners of appraisement. ” The statute then provides for a hearing by the commissioners of appraisement, for their report and the confirmation thereof, and for an appeal from said appraisement. The effect of the amendments of 1906 and 1910 to said statute, as far as this question is involved, is only to extend the power of the Commissioners to condemn land north of that specified in the act of 1900, and upon the west bank of the Hudson river and including the land in question. The application for the appointment of commissioners of appraisement is also changed to the Minth Judicial District.

It is insisted by the plaintiffs in this action that this method of condemnation offers no opportunity either to the Conklin & Foss Company or to the bondholders to interpose what defenses they may have to the attempted condemnation by the said Commissioners, and, therefore, their only remedy is through an equity action. It is answered by the Commissioners that this statute is to be read in connection with the Gleneral Condemnation Law, which gives to the property owner opportunity to raise any material issue as to the right of condemnation upon the application for the appointment of commissioners of appraisement. (See Code Civ. Proc. chap. 23, tit. 1.)

There seem to he contemplated in the statutes two methods of condemnation of land. The first method is that prescribed in the General Condemnation Law. That provides for condemnation proceedings to he started by petition, which petition is required in a general way to contain all the facts upon which the right of condemnation rests. Upon the return of that petition the property owner is authorized to serve an answer denying any of the allegations of the petition, or averring new matter in defense of the application. The other method of procedure seems to have been adopted where the condemnation was by the State itself, as for instance, condemnation of land for canal purposes, in which the only prescribed procedure was the filing in specified public offices of maps, and the serving of a notice of intention to appropriate the land. In that case there is .no application for commissioners of appraisal, because' the property owner is remitted to the Court of Claims for his damages. The same procedure is adopted where land is condemned for the Adirondack Park. In People v. Adirondack Railway Co. (160 N. Y. 225) it was held that such procedure was not taking property without due process of law, and that the owner in case there was an attempted condemnation without right might proceed in various ways to resist the condemnation, as by action for trespass or otherwise. The act under examination in the case at bar in a way combines these two methods. It provides for the absolute condemnation by the filing of the map and notice of intention to appropriate. Because, however, the State is not liable for the compensation the landowner cannot be remitted to the Court of Claims, but his damages must he ascertained by an appraisal by commissioners to be appointed by the court, and for that purpose it is provided that an application shall he made to the court for the appointment of those commissioners upon notice tobe duly published. The crucial question then is, what rights has the landowner upon the return day of that notice for the appointment of commissioners of appraisal ? I have no doubt of his right first to be heard upon the personnel of the commission of appraisal. The very notice given to him that upon a certain day the appointment would be made involves of necessity his right to be heard. Hot only has he the right to be heard upon the personnel of that commission, but I have no doubt further of his right to be heard upon the question whether any law exists authorizing the appointment of that commission. If the law under which it is claimed the right to appoint the commission is unconstitutional he may object to their appointment upon that ground, and his right would seem clear to raise any legal objection appearing upon the face of the papers presented which he may have to the appointment of the commissioners which would include any claim he may have of the invalidity of the statute upon legal grounds. Ho opportunity is given him, however, to raise any question which will involve an issue of fact. Under the General Condemnation Law the proceeding is started by a petition, which is required to recite all of the facts upon which the right of condemnation depends. Specific provision is made for an answer to that petition denying those allegations of fact, and asserting new matter in defense of the application. In this proceeding no petition is required alleging any facts upon which the right to condemn is claimed; no provision is made for an answer or for the raising of any issue of fact. Having in mind the different modes of proceeding for condemnation before mentioned, it would seem clear that this proceeding is apparently intended to conform as far as may be to proceedings for condemnation of lands for canal purposes and for the Adirondack Park. The provisions of the General Condemnation Law authorizing the raising of issues of fact upon the return of the petition cannot be read in connection with the provisions of this act because the scheme is different, and for the reason alone, if for no other, that this proceeding is not started by petition. It is true that it has been held in the Second Department that one provision of the General Condemnation Law could be read into this statute, to wit, the provision that if the Commissioners elect to abandon the proceedings they must be abandoned within thirty days after the entry of the final order. (See Matter of Commissioners of Palisades Interstate Park, 166 App. Div. 443.) Such a holding, however, is no authority for allowing the landowner to raise questions of fact upon the return of the notice for the appointment of appraisal commissioners where the statute is apparently framed upon an entirely different method of procedure. If, then, these plaintiffs have a defense to this appropriation of their lands for which no opportunity of assertion is presented in these condemnation proceedings this action in equity is clearly authorized. No court will require a futile proceeding, nor will any court require these plaintiffs to suffer the expense and the business injury of necessity resulting from such proceeding. If the conclusion be justified, however, that upon the return of the notice for the appointment of appraisers any interested party may raise any legal objection to their appointment, to that extent the plaintiffs have a remedy in the condemnation proceeding as far as their right rests upon legal objections which are not dependent upon an issue of fact. If, however, the plaintiffs have any ground for objecting to condemnation by reason of any facts not appearing upon the face of the proceedings, they may proceed in equity to enjoin those proceedings for lack of opportunity in the proceedings themselves to present those issues of fact.

I am unable to find any substantial issue of fact raised by the papers in this case which furnish valid ground of objection to this condemnation. It is contended first that this condemnation is purely for sesthetic purposes to preserve the scenic beauty of the Hudson river, and that such use is not a public use authorizing the appropriation of land under the right of eminent domain. In Matter of Clinton Avenue (57 App. Div. 166), the court held that chapter 257 of the Laws of 1899, entitled “An act in relation to Clinton avenue, in the borough of Brooklyn, in the city of New York,” which adds a twenty-foot strip to each side of a portion of Clinton avenue and provides that the two strips of land hereby added to said avenue shall not be added to its traveled portion, but shall be reserved and preserved as ornamental court yards for the benefit and improvement of said avenue, and determines the extent to which the original owners may make use of the ornamental court yards, contemplates a public purpose, to accomplish which the power of eminent domain may properly be exercised. Justice Woodward, now a member of this court, in writing for the department said in his opinion, adopted by the court: “It is not necessary that every part of all highways should be used for the passage of vehicles and pedestrians; it is proper that some regard should be had for the aesthetic tastes, the comfort, health and convenience of the public, and, if the Legislature had enacted that Clinton avenue should be increased in width to the extent provided in this act, and had provided that a strip in the center of the highway, forty feet wide, should be devoted to trees and flowers, as is done in many of our cities, it would hardly have been questioned that this constituted a public use in the same sense that a park preserve is generally recognized as a public use. * * * Because the Legislature has preferred to leave this breathing space upon the sides of the street, subject to the limited use of the owners of the fee, does not change its essential character, and the improvement is undoubtedly much less expensive than the one which is suggested as within the legislative discretion. ‘The adjudicated cases likewise establish the proposition,’ say the court in Shoemaker v. United States [147 U. S. 298], ‘ that, while the courts have power to determine whether the use for which private property is authorized by the Legislature to be taken, is in fact a public use, yet, if this question is decided in the affirmative, the judicial function is exhausted; that the extent to which such property shall be taken for such use rests wholly in the legislative discretion, subject only to the restraint that just compensation must be made.’” That case was appealed to the Court of Appeals, which affirmed the judgment, and answered in the affirmative the second question submitted, whether the lands sought to be taken by said act were taken for public use. (167 N. Y. 624.) It will be borne in mind that not only public parks existed both south and north of the land in question, but that said parks are intended to include various strips of land between them. The land in question adjoins the Hudson river, which is in itself a public highway as well as a public park utilized by the public for rest, recreation and enjoyment, the same as any other public park. If land were sought to be condemned for park purposes it could hardly be objected that part of the land was unadaptable therefor as being rugged and steep, of which practical use could not be made by the public. It is adaptable as incidental to the park of which use could be made. Such inaccessible land might also be condemned for adornment and to preserve the scenic beauty as incidental at least to such a park. Whatever technical averment may be made that the land is not adaptable to the public use, if the term “public use ” be so extensive as seems to be indicated in the authorities cited, there can be no substantial doubt that the shutting down of this quarry and the removal of its accessories do present some opportunity for adornment and improvement of scenic beauty, so that the courts must hold that the land is adaptable to a public use. This must then be ruled as a question of law.

Plaintiffs again insist and have alleged in their complaint that this land is taken by the Commissioners solely for private purposes. It is not contended, however, that the land appropriated is to be used for private gain. It is not claimed that the quarry situated thereon is to be worked either for public or private profit. The real contention is that private interests desire the discontinuance of the quarry works because of the annoyance caused by the blasting in the quarry, and that these are the considerations which have actuated the attempted appropriations by the Commissioners. The land appropriated comes into the possession of State officers in trust for the People of the State. There is a conclusive presumption that they will fulfill their trust obligations, and will so use the land as to give to the public the use thereof in the preservation and improvement of the scenic beauty of the Hudson river and of the State parks. The inspiring motives of the Commissioners cannot be challenged if public use be attained. Such a challenge would open a tremendous field for irrelevant discussion. The State, with power to take, has delegated the power of selection to these Commissioners. The property owner receives full compensation for his property taken, and in this alone is he legally interested as long as the property is adaptable to a public use, and the result of the appropriation is so to apply it. The want of power to condemn for private uses exists where such is the result of the condemnation. ‘ ‘ It has been held, however, that if there is a legislative declaration that the use is a ' public one the courts will hold it to be such, unless it manifestly has no tendency to promote such use. ” (15 Cyc. 580.) At page 582 it is further said that “ a use is not rendered a private one by the mere fact that a part or even the whole of the cost of constructing the improvement is paid by individuals, although such individuals are the persons most benefited by the improvement.” (Harris v. Thompson, 9 Barb. 350.) There is no allegation in the complaint that these Commissioners have acted in bad faith, and the fact that private neighbors are so far interested in the improvement as to contribute largely to the cost of its acquisition, is no answer to the right of condemnation, provided the property is adaptable for public use, and the result of its condemnation is its application thereto. In People v. Smith (21 N. Y. 598) the opinion in part reads: “The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the Legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority.”

From the conclusion reached that no issue of fact is raised upon which the right of condemnation rests the jurisdiction of equity must be denied. We do not assume, however, to pass upon the constitutional objections to this act which appear upon the face of the proceedings, and which as we hold can be raised in the condemnation proceedings now pending in the Hinth Judicial District. The order of the Special Term should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for a temporary injunction denied, with ten dollars costs, upon the ground that the record presents no issues of fact upon which the right to condemn depends, and that all legal objections can be raised in the proceedings for condemnation instituted in the Ninth Judicial District.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion for temporary injunction denied, with ten dollars costs, upon the ground that the record presents no issues of fact upon which the right to condemn depends, and all legal objections can be raised in the proceedings for condemnation instituted in the Ninth Judicial District.  