
    Carlton G. Hallook et al., Respondents, v. State of New York et al., Appellants, and Perini Corporation et Ano., Defendants.
    Argued April 23, 1973;
    decided July 3,1973.
    
      
      Louis J. Lefkowitz, Attorney-General (Douglas S. Dales, Jr. and Ruth Kessler Toch of counsel), for the State of New York, appellant.
    I. The State Supreme Court lacks jurisdiction of the subject matter of the action. (Rindge Co. v. County of Los Angeles, 262 U. S. 700; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Matter of City of Rochester v. Holden, 224 N. Y. 386; Kaskel v. Impelliteri, 306 N. Y. 73; Matter of Brown v. McMorran, 23 A D 2d 661; Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, 4 A D 2d 801, 3 N Y 2d 1006; Eldridge v. City of Binghamton, 120 N. Y. 309; Matter of City of New York [Nostrand Ave.], 163 App. Div. 10; Brown v. United States, 263 U. S. 78; Dohany v. Rogers, 281 U. S. 362.) II. The complaint fails to state any cause of action. (Cross v. State of New York, 36 A D 2d 361; Duksa v. State of New York, 34 A D 2d 1053; Belott v. State of New York, 26 A D 2d 749; Zogby v. State of New York, 26 A D 2d 899; Berzal & Co. v. State of New York, 8 A D 2d 886; Matter of Huie, 1 A D 2d 500.) III. The State of New York is not a necessary or proper party.
    
      John R. Davison, Scott B. Lilly and Peter A. Giuntini for Power Authority of State of New York, appellant.
    I. The complaint fails to state a cause of action and the Supreme Court lacks jurisdiction of the subject matter. (Matter of Mazzone, 281 N. Y. 139; Rindge Co. v. Los Angeles County, 262 U. S. 700;. Kaskel v. Impellitteri, 306 N. Y. 73, 347 U. S. 934; People v. Adirondack Ry. Co., 160 N. Y. 225, 176 U. S. 335; Matter of Fowler, 53 N. Y. 60; Matter of Public Serv. Comm., 217 N. Y. 61, 251 U. S. 537; Matter of City of New York [Ely Ave.], 217 N. Y. 45; County of Broome v. Trustees of First M. E. Church, 37 A D 2d 1036; De Matteis v. Town of Hempstead, 286 App. Div. 1025, 286 App. Div. 1104; Shoemaker v. United States, 147 U. S. 282.) II. There is no triable issue of fact which would preclude dismissal of the complaint or the granting of summary relief. (Hofbauer v. Liss, 18 A D 2d 672; Lanza v. Wagner, 11 N Y 2d 317; Plaza Mgt. Co. v. City Rent Agency, 31 A D 2d 347, 25 N Y 2d 630; Matter of City of New York, 190 N. Y. 350; St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N Y 2d 317.)
    
      Anthony M. Quartararo for respondents.
    I. Although the condemning Authority has the power to determine which par-
    
      cels of land it deems necessary for its stated purposes, the courts historically have been able to inquire whether the taking was for a public use. (Matter of City of New York [Flatbush Ave.], 60 Misc 2d 1062; Saso v. State of New York, 20 Misc 2d 826; Rindge Co. v. County of Los Angeles, 262 U. S. 700; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, 4 A D 2d 801, 3 N Y 2d 1006; Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342.) II. When the Authority is empowered to take any interest in land it deems necessary, the taking of a fee to property located two miles from the construction site for the sole purpose of extracting minerals therefrom is not taking for a public purpose. An easement is the proper legal method of acquiring a right to take minerals from land removed from the public improvement. (Maxson v. Gale, 142 App. Div. 335; Matter of Mayo v. Windels, 255 App. Div. 22, 281 N. Y. 837; Onondaga Water Serv. Corp. v. Crown Mills, 132 Misc. 848.) III. Taken together, or separately, the complaint as well as the supporting affidavits contain sufficient allegations to confer jurisdiction upon the court. (Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342; Kaskel v. Impellitteri, 306 N. Y. 73; People v. Fisher, 190 N. Y. 468.) IV. The Supreme Court of the United States has specifically prohibited condemnors from speculating in land values. (Brown v. United States, 263 U. S. 78; Fifth Ave. Coach Lines v. City of New York, 11 N Y 2d 342; Salzman v. Impellitteri, 305 N. Y. 414.)
   Jones, J.

Sand and gravel are required as filler for the construction by the State Power Authority of a dam for a power project. This case raises the question whether in this instance the taking by eminent domain of a full fee interest in the property from which the sand and gravel are to be extracted can be justified where it is said that an easement would serve the public purpose as fully. In our judgment this issue cannot be decided on the meager record before us and the case must go to trial,

Appellants (State and Power Authority) appeal, pursuant.to leave granted by the Appellate Division, from an order of that court which modified, on the law and facts, an order of Supreme Court denying the State’s and the Power Authority’s mdtidné td dismiss the cemplaint, and denying respendents’ (Halleck’s and Phillips’) cross motion for summary judgment. The Appellate Division modified by granting the motions to dismiss the complaint as against the two contractors, Perini Corporation and Gordon H. Ball, Inc., and, as so modified, affirmed the order of Supreme Court. The following question was certified: “ Did the Special Term err as a matter of law in failing to grant the motion to dismiss the complaint?”

In the form literally posed the certified question can only be answered in the negative. There is no dispute that, as stated by the Appellate Division, the only question raised on a motion to dismiss in a declaratory judgment action, is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment. The issue is not whether the movant, here the State and the Power Authority, is entitled to a declaration in its favor. (Rockland Light & Power Co. v. City of New York, 289 N. Y. 45, esp. at p. 50.)

We interpret the question certified, however, not in its most strict literal denotation, but1 ‘ in an effort to effectuate the intention of the.Appellate Division to present its decision for review in the Court of Appeals ” (Cohen and Karger, Powers of the New York Court of Appeals [Rev. ed.], § 87, p. 371). In that light we construe the question certified to inquire whether the Special Term erred in its decision that on the record before it there was not an adequate basis for making a declaration in favor of the State and the Power Authority. So understood the question should be answered in the negative.

The Power Authority is engaged in the construction of the Blenheim-Gilboa Pumped Storage Power Project in Schoharie ■ County, and has appropriated some 1,000 acres for that purpose. In the process of construction sand and gravel will be required for use as dam filler.

Hallock and Phillips owned a 67.7-acre tract of land in Schoharie County, located some two miles distant from and constituting no part of the proposed dam site or of the area to be flooded. • The owners had themselves been in the practice of selling sand and gravel extracted from their property.

In January, 1968, the State took soil samples from the property in question, and following analysis advised the owners that the soil on their tract was of superior quality for use as sand and gravel for high-grade dam filler. In 1969 the State, acting on behalf of the Power Authority, appropriated the entire 67.7-acre tract in fee. The owners allege in their complaint—which is to be construed liberally—and in the memorandum in support of its motion to dismiss the Power Authority repeats, that the State intends to use for the dam project only a small portion, perhaps some 300,000 cubic yards, of the 4,300,000 cubic yards of sand and gravel on the property.

By way of an action for a declaratory judgment in Supreme Court the owners sought to challenge in these circumstances the legal right of the State and the Power Authority by eminent domain to take a full fee interest rather than an easement only to extract sand and gravel. No question is raised that the use of the sand and gravel will be for a public purpose. The owners contend rather that it is here proposed to take a greater estate than appropriate for the public use, and that under the circumstances of this factual situation the proposed taking would constitute an illegal and even unconstitutional exercise of the power of eminent domain.

Under subdivision 10 of section 1007 of the Public Authorities Law, ‘‘ The authority may determine what real property is reasonably necessary for the construction or operation of any project ”.

We conclude that the State, as agent for the Power Authority, is a proper party to this action. We also conclude that it cannot be determined, on the complaint and the affidavits in support of the cross motions, that to take a fee interest in all 67.7 acres is permissible to accomplish the conceded public purpose of extracting a limited amount of sand and gravel. We would attach considerable but not necessarily controlling legal significance to a determination by the Power Authority, as delegatee of the Legislature, that a fee taking is here appropriate to the accomplishment of the public objective. Such a conclusion may be demonstrated on trial; it does not appear sufficiently on the record now before us.

. The Power Authority and the State acknowledge that not all of Hallock’s and Phillips ’ real property taken by the appropriation will be utilized for a public use, but assert that the questions of the necessity of appropriating any particular property and the extent of such taking are not subject to judicial review. We cannot agree with any such broad and unlimited assertion. The general principle that there is no right to condemn land in excess of the need for public purposes, and that no more may be taken than is required for the particular public purpose, applies not only as to the volume of land to be taken, but as well to the nature or extent of the estate in the property taken. In general there may not be the acquisition of a fee when only an easement is required. (Cf. Matter of City of New York, 174 N. Y. 26; see Sixth Ave. R. R. Co. v. Kerr, 72 N. Y. 330, 332; 2A Nichols, Eminent Domain, § 7.223, subd. [1], p. 7-63; Ann., 6 ALR 3d 297, esp. § 5, at p. 308.)

We note in particular that the statute, under which the State would carry out the Authority’s determination as to what real property is reasonably necessary for the project, explicitly authorized the acquisition of interests in such property less than full title, such as easements ”. (Highway Law, § 30, subd. 2.) In the face of this statutory language there must be a determination whether the taking of a fee title was authorized under section 1007 (subd. 10) of the Public Authorities Law and section 30 (subd. 2) of the Highway Law.

We do not find the cases relied on by the State and the Power Authority controlling, at least at the present' stage of this 'litigation. We note that in Sweet v. Buffalo, N. Y. & Phila. Ry. Co. (79 N. Y. 293) the court found that there had been a specific legislative determination that a full fee title was appropriate for the erection and maintenance of a seawall breakwater to protect the City of Buffalo from the waters of Lake Erie. Under the factual showing in that case such determination was not set aside as unreasonable. Kaskel v. Impellitteri (306 N. Y. 73) raised a factual issue as to whether the volume of land there challenged was appropriately taken and whether the taking was indeed for slum clearance; no issue was posed as to the extent of the estate in the land to be taken.

We express no view whether justification may be demonstrated on trial for the acquisition of the full fee interest in all 67.7 acres of property when opportunity has been accorded the parties to develop all aspects of physical geography, of operational considerations and of economics, together with other relevant data. We do say, however, that such justification has not been demonstrated sufficiently on the record now before us.

The order of the Appellate Division is affirmed and the certified question answered in the negative.

Gtabrielli, J. (dissenting).

I disagree with the assumption used in the majority opinion that “ the only question raised on a motion to dismiss in a declaratory judgment action is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment.” The complaint must also allege facts, which if proved, would entitle the plaintiff to the relief sought (see 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., TÍÜ3001.12, 3001.13). In my view, no such facts have here been alleged.

Paragraph “ Sixth ” of the complaint states that the State was aware ” that the subject premises contained in excess of 300,000 cubic yards of sand and gravel. Paragraph ‘ ‘ Seventh ” states that the premises contain in excess of 4,300,000 cubic yards of sand and gravel. There is no allegation, nor any indication of any possible proof, that the State needs, or intends to use, only 300,000 cubic yards, or approximately 7% of the available material. In fact, one of the plaintiffs’ affidavits concedes that the Power Authority is extracting and is continuing to extract hundreds of thousands of cubic yards of gravel from the property in question ”.

The majority erroneously state that the Power Authority and the State acknowledge that not all of plaintiffs ’ property will be utilized for a public use. Neither the record nor any document before this court justifies such a statement, and to predicate a vital determination upon such an erroneous premise is not warranted. Additionally, an examination of the very document under attack together with the affidavit submitted by plaintiffs clearly arid succinctly belies the majority’s unwarranted statement.

Bather clearly, the necessity for the use of the entire parcel has not been challenged. The basis of the complaint lies in paragraph “ Twelfth ” where it is alleged that condemnation of land in fee constitutes an excessive appropriation; and. that the purpose of such condemnation was to deprive plaintiffs of the true value of the gravel deposits. Since, as previously noted, no facts are alleged that the condemnation of the fee was not necessary for the public use intended, the statements in paragraph “ Twelfth ” are conclusory and unsubstantiated.

The Power Authority is empowered under section 1007 of the Public Authorities Law to appropriate the subject land and subdivision 9 of that section provides that fee title may be. taken. In deciding a claim that a greater estate or right in lands cannot be taken when an easement or á lesser estate will suffice, this court in Sweet v. Buffalo, N. Y. & Phila. Ry, Co. (79 N. Y. 293, 300) stated that: 1 ‘ When the statute authorizes the taking of a fee it cannot be held invalid, or that an easement only was required by proceedings thereunder, on the ground that in the judgment of the court the taking of an easement only would accomplish the public purpose which the Legislature had in view. That is a legislative and not a judicial question.”

Where, as here, the State appropriated the fee for the sole purpose of extracting “ hundreds of thousands of cubic yards of gravel ”, we cannot say that such a taking was arbitrary and capricious. Absent unreasonableness, an appropriation made in good faith will not be interfered with by the courts (Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, affd. 4 A D 2d 801, affd. 3 N Y 2d 1006; Kaskel v. Impellitteri, 306 N. Y. 73; People v. Fisher, 190 N. Y. 468, 477). Within the sound exercise of legislative discretion, the necessity for an appropriation of lands for public use is solely a legislative function (Cuglar v. Power Auth. of State of N. Y., supra; Kaskel v. Impellitteri, supra; County of Broome v. Trustees of First M. E. Church, 37 A D 2d 1036; Harwell v. United States, 316 F. 2d 791). There are no allegations in the complaint or factual representations in plaintiffs ’ affidavit to indicate that the Power Authority acted irrationally or in bad faith. Bather, the Power Authority, in rendering a public function, appropriated land necessary for the completion of a public construction project. By no reading of this record are there any factual questions raised or is there any arbitrary or capricious conduct indicated. Consequently, the courts are prevented from reviewing a matter solely within the jurisdiction and discretion of the Legislature.

Accordingly, the order of the Appellate Division should be reversed and the certified question should be answered in the affirmative.

Chief Judge Fuld and Judges Burke, Jasen and Wachtler concur with Judge Jones ; Judge Gajbrielli dissents and votes to reverse in a separate opinion in which Judge Breitel concurs.

Order affirmed, with costs. Question certified answered in the negative. 
      
      . (Matter of City of Syracuse v. Eastman, 230 App. Div. 522; Matter of Albany St., 11 Wend. 149; Bennett v. Boyle, 40 Barb. 551; see Matter of Mayo v. Windels, 255 App. Div. 22, at p. 27, affd. 281 N. Y. 837; Onondaga Water Serv. Corp. v. Crown Mills, 132 Misc. 843, at p. 855; Ann., 6 ALR 3d 297; 19 N. Y. Jur., Eminent Domain, § 62, p. 260.)
     