GUMENT

T’S OPENING AR

E MATTER OF.

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POR THE CUry.

New York, March 5, 1886.
Present—Commissioners Marsu and Paar.
Appearances—FRanKLIN Barriert, Esq., for the City.

Mr. Barrierr—May it please the Court: After many
months the claimants for awards in the Pelham Bay
Park have finished their case. The hearing has been
exhaustive, and your Honors have listened with un-
wearied patience ever since the 30th of January, 1885,
when we commenced to listen to the proofs of title and of
values which should be adduced by the land-owners and the
persons claiming the awards. It now becomes my duty
and my privilege to open the case for the City of New
York. Isay privilege, for I consider it a privilege to
defend the interests of this great municipality in a case
which so largely affects the City Treasury and the tax-
payers upon whom the burden must ultimately
fall; for in either event, whether these awards are paid for
by the issue of new bonds, or by the insertion of the
amounts of the judgments to be obtained in the City tax
levy, the burden must ultimately fall upon the taxpayers
at large. Our court of last resort--the Court of Appeals
—has declared the New Park Act to be constitutional.
The only question, therefore, which remains to be solved
is that question, which your Honors will have to deter-
mine: What shall be paid for the lands taken? This
question is one of great practical importance
affects indirectly every resident of the City and County
of New York—it is one which affects directly every tax-
payer. Your Honors, as soon as you were organized, be-
came a Court, as was decided in the matter of the Niagara
Reservation, in which the distinguished presiding Commis-

itis one which

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sioner here was also a Commissioner, and where the General
Term of the Fifth Department held that Commissioners,
as soon as organized, become a Court. In you are united
the dual functions of judges and jurors, and you derive
your powers as a Court from the organic law of the State—
the Constitution— and also from the language of the New
Park Act itself. You are the judges of the values—the
sole judges—and, in the absence of any substantial error
as to the admission of evidence, no successful appeal can
lie from your finding.

The position of the City here is not like that of an
ordinary defendant; it occupies rather the position of a
trustee—of a trustee acting in a fiduciary capacity for the
great body of citizens, and so bound to see that the City is
not muleted in any enormous amount.

What is the character of this proceeding? It is a
proceeding under the law of eminent domain—that great
branch of law under which private property is taken for
public use. it is a sovereign power which has existed for
centuries ; it is a sovereign attribute which is possessed by
every State, which arises from no contract or arrange-
ment between the State and the private imdividual, but
has its foundation in the imperative law of necessity. As
that eminent jurist, Judge Cooley, said in a great Michigan
case, it would be impossible for a government to further
the prosperity of its people if, at the option of individuals,
the right to exercise eminent domain might be withheld.
It is only necessary to show the importance of this branch
of the law, to point out the fact that without it every
public improvement would be stopped. There would be
no streets or highways, no railroads or canals, no bridges,
no parks or publie places, nor any improvements of any

kind.

Now, while it is true that all sovereignty in a constitu-
tional government like ours rests in the people, the
people bestow their powers on the Legislature, and the
Legislature, by virtue of this bestowal, has the right to
exercise eminent domain. And as this right of eminent

5)

domain pertains to the sovereignty, entirely aside from the
question of the ultimate ownership of property, and is
beyond it and paramount. to it, it is not too much to say
that the right could be exercised without making com-
pensation, were it not for the safeguard which is provided
in our constitution, and which is also found in the Federal
Constitution.

It was thought after the adoption of the Federal Consti-
tution that the citizen did not have his rights sufficiently
preserved, and that consideration, and the debates which
then ensued upon the exercise of the right of eminent do-
main, or its possible exercise, led to the adoption of the
Fifth Amendment, which provides that private property
shall not be taken for public use without just compensa-
tion.

What are the two pre-requisites which are provided
in the Federal Constitution and in the constitution of
the State of New York—for the language is iden-
tical? “ No person shall be deprived of life, liberty or
property without due process of law, nor shall private
property be taken for public use without just compensa-
tion.” Here we have the two pre-requisites for the
exercise of this power. First, the due process of law. Now,
what is due process of law ?

The Seventh Section of Article I of our State Constitu-
tion provides that when private property shall be taken
for public use, the compensation to be made therefor, when
such compensation is not made by the State, shall be ascer-
tained by a jury, or by not less than three commissioners
appointed by a court of record. So we must have either
a jury or three commissioners ; and then what else is re-
quired to make “due process/” But two other things
are essential: due notice to the land-owner and a fair
hearing.

The Court of Appeals has held in this very case, the
opinion being written by Judge Finch, that due process of
law entitles the property-owner to notice of the proceeding
against him and an opportunity to be heard, and the Court

4

of Appeals effectually disposed of all the objections which
had been raised against this act based on the theory that
no sufficient process of law was provided for. The Court
held that the procedure and the method to be taken were
matters within the discretion of the Legislature; as long
as adequate notice and the substantial right to a hearing
were guaranteed, the act was constitutional. Moreover,
whatever objections of this character might have been
urged in the beginning against this act have lost all their
force from the action taken by the Commissioners, because
there can now be no question as to adequate notice and
the patience and fairness of the hearings which have been
granted to these claimants.

We now come to the other question—the other pre-
requisite—aside from the dune process of law. What is
that ¢ That just compensation shall be made to the citizen.
What is the meaning of this expression? Although we
find the words “just compensation”? used in most of
our State constitutions, used in the Federal Constitu-
tion, and the constitution of the State of New York, in
some States we find other words, and, notably, in the State
of Massachusetts, the language is “reasonable compensa-
tion,” so that it would seem that “just compensation ”
means “reasonable compensation.” But, aside from any
constitutional construction, the Courts have told us in
many cases what this language means. Just compensation
means the fair market value—the fair market value in the
open market. And the Supreme Judicial Court of Massa-
chusetts, a year or two since, defined expressly the term
“market value.’ Market value, says that Court, means
the fair value of the property as between a man who
wants to purchase and one who wants to sell any ar-
ticle—not what could be obtained for it under peculiar
circumstances when a greater than its fair price
could be obtained—not its speculative value, not a
value obtained from the necessities of another.
The damages then must be measured by the market value of
the land at the time of the taking—not its value to the
petitioner on the one hand, nor to the respondent on the
other, not the value which it might have under different

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circumstances than those existing ; and I say, it is the es-
tablished and settled law of this State that any contin-
gency of future development cannot be taken into con-
sideration, nor can the Court, in making its awards, con-
sider the desirability or fitness of the land taken for the
particular public use intended. The last point was
decided within a year or two by one of our General
Terms. The reason for this is, that it was the intent
of the law and is the intent of the law tiat no pro-
fit shall be made out of the State or City. The intent
of the law is, that the property-owner shall have the value
of his property and nothing more, and that he shall not
make a profit out of the State or City, or a petitioner
exercising the right of eminent domain.

So much for the law.

How has the testimony produced by the land-owners
contormed to these rules of evidence? Ihave here the
tabulated result of the values of the property-owners’ ex-
perts, and these tables will be furnished to any gentlemen
present who would like them.

Let us glance at the fabric which has been constructed
by the property-owners and their experts, which might
well be likened unto a Burmese pagoda inasmuch as it is
most conspicuous for the love of gold therein displayed.

We commenced with the testimony in this matter on
che 30th of January, 1885, and the record now forms a
bulky volume of nearly a thousand pages. And I wish to
state that whatever delay there has been in this proceed-
ing has not been the fault of the Court, nor has it been
the fault of the counsel for the City—it has been due to
the procrastination and postponement of the property-
owners, who were evidently inspired by the manifest
dread lest, in the presentation of their claims, they should
be outstripped by their neighbors in the largeness of the
awards asked for. That was, indeed, a mistaken dread ; for
all, rich and poor alike, have united in claiming for their
land far more than could have been anticipated in the
wildest dream of a mad enthusiast.

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A great English novelist, if your Honors please, has
said that no one preserves the imagination after 40 years.
He certainly could not have listened to these experts in
this Pelham Bay Park matter; for here all of these
experts, far past 40, have shown that them
imagination was still very vivid. They have in
fact, given loose rein to the imagination and allowed
their fancy to run riot. Now, what does their testimony
amount to? This in brief: That we must pay for these
lands taken the enormous, monstrous sum of $5,050,000.
For what do they ask us to pay this sum? For 1,700
acres of land, with a few buildings, all lying three miles
beyond the confines of this county, and in the town of
Pelham. Ido not assail the property-owners, for the
greed of gain or love of gold is one of the most potent
and all-absorbing of human passions. Awri sacra fames,
“The cursed greed of gold” is just as fierce now as it was in
the daysof Virgil. And possibly some of these land-owners
may really believe that the values they ask for are genuine.
Nor do I wish to attack the experts, because I am well
aware of the result of thinking for months in one particu-
lar train of thought, and I know that the facts that we
shall bring out will form a sufficient arraignment and in-
dictment of the views of these experts. Their estimates
have been so exaggerated that they have caused, not un-
naturally, a feeling of indignation throughont the whole
community, and this feeling has been so strong that even
some of the gentlemen who seek awards have come to me
and said: ‘“ What do these men mean by putting such
values on my property ; [ want no such price for my land.”

Let me, for a moment, call the attention of the Court to
the peculiarities of some of the experts. Let us see upon
what they base their financial ideas. Let us take Mr.

Jampbell. He has been called to the stand. He is the
superintendent of Larchmont Manor, and he bases his ideas
of the value of the property upon what he considers the value
of the property there in his own pet project, and one or two
other places along the Sound. It has been sufficiently
brought out in the evidence, and it will be strengthened

5

further, that the character of those places upon which he
bases his valuation is entirely and radically different.

Let us take Mr. LeCount. He is another expert. I
say that his estimates are not entitled to any weight what-
soever, that they should have no weight before your
Honors, because they are based entirely on prospective
conditions — on something which may take place a
half-century hence, or a century hence, and on a condition
of affairs which is non-existent to-day, and which your
Honors have no right to consider. He expressly divides
all these areas and tracts into quarter-acre plots and acre
plots, and on that future development, its division into
village plots and lots, he bases his present valuation.

In regard to Mr. Findlay, I was amused somewhat by
his frank confession that he could not attempt to give the
market value of this property. He said it had no market
value as far as he knew, and he could not give it; so, of
course, his testimony is entitled to no weight.

What was the condition of this area when the Park act
was passed in 1884—of the portion of the 3,166 acres in
the town of Pelham, viz. : 1,700 acres which is included
within the area of the Park? Except the little settlement
or hamlet at Bartow, there had not been six houses built
within twenty years. There was only one store, and
not a church, or a manufactory, or a school-house in the
whole district. The farming lands were lying fallow, the
meadows were yraste and barren, as Mr. Hunter himself
testifies in regard to one of his farms. I remember well
the occasion of my first official pilgrimage through
the Pelham Bay Park; how I was impressed with the
barren and waste appearance of the whole tract ;
how I was impressed with the grass-grown drives
and the creaking piazzas, and the general aspect
of ruin. It was upon this moribund and stagnant
district that the passage of the New Park Act came like
manna. It was indeed a Godsend, for these men had been
for years and years trying in vain to dispose of their prop-

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érty. Their experts say there were no sales—in other
words, there was no market. How little they realize
what a fatal admission that is to any claim for high
values, for all political economists will tell you that where
there have been no sales and could be uo sales, the re-
sult is always a lowering of the market price. Now, I
wish to illustrate. Take the dry goods trade. If there is
an over-production, or a glut arises from any cause—a glut
arises from the failure to sell, or from a general stag-
nation of the market—prices go down, irrespective of
what the goods have cost; and it is not very rare
in this City to see great sales of print-cloths where the
production of the mills are sold out at a great loss.
What is the cause of that? Because there had been
no sales of any magnitude for months before. So, natur-
ally, the market price goes down, and the goods have tobe
disposed of ; and, I say, the same general rule applies in
regard to this land. They couldn’t sell it, and therefore,
there was no market, and whatever price was upon the
land necessarily declined.

What do we propose to do? We propose to show your
Honors that the lands and buildings here taken were not
worth in 1884—in June, 1884, when this act was passed—
more than one million and a half dollars. We propose to
show it by four distinct kinds of evidence. We propose, in
the tirst place, to show you the sales within the park itself.
It is true, as the experts on the other side have testified,
that there have not been many sales, but still, there have
been seventeen or more sales since 1879, and whereas, it
might be claimed that the older sales were no indication
of values, it is certain that sales made within a short period,
and within the area itself, are evidence of what the true
value should be.

Where, in December, 1881, 55 acres and the buildings
were sold for $26,000, it can hardly be claimed, with any
show of right, that 81 acres of the same land are now
worth, without the buildings, $103,000.

Nor where, in 1884, 7 acres of a certain piece of land
were sold for $7,000, and in the same year an acre and three

9
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quarters of the same for $2,500, and in 1879, 107 aeres of
thesame tract had been sold for $51,677, I say that the claim
‘of $368,448 tor that tract, without the buildings, is a mani-
fest fraud. And so, too, the $17,000 paid for the 52 acres
of the James Morris property is some indication of what
the real value of the property is, because that sale took
place in June, 1883—only a year before the passage of
this act. And again, the $8,500 paid by Mr. Hoyt for
Twin Island in 1881 is very significant, and at once stamps
as preposterous and ridiculous his claim of $100,000, which
he now presents for the land alone. So, too, the sale in
1880 of Hunter’s Island for $102,000 shows that the
claim of $575,000 now presented is beyond the bounds of
reason, and is absurd. We shall also call your Honors’ at-
tention to the fact of the recent foreclosure sale of the Secor
place, where some 45 acres were sold for $14,000—
14 acres of which are included in this park.

Our second branch of evidence will be the sales in the
vicinity—the sales in the lower part of Westchester
County. Of course, the latitude of our proofs, and the
extent to which we shall go into these sales in the County
of Westchester, will depend largely upon the ideas of
the Court; it is certainly within the discretion of
the Court ; but we can show that, in some localities even
within the limits of the City and County of New York
itself, no such prices as those claimed here have
ever been realized. I mean to say that there have
been sales within the limits of this County
within a few years which would fix the values asked for
now for the Pelham Bay Park property at much lower
figures then their experts claim. We will take the lower
towns of the County of Westchester—Westchester, and
Eastchester, and Yonkers, and New Rochelle, and Pel-
ham. The Pelham Bay property, property in the town of
Pelham, is worth less than land in any other of these
towns, and we shall show you sales in the other towns—
of course, we shall not go into Yonkers, because that is a
city by itself—but we shall show you sales in Westchester,
and Eastchester, and New Rochelle, which will prove how
fabulous are the sums now sought to be recovered.

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In Pelham itself we shall show a sale in July, 1889, So
of 41 acres for $4,635, and in December, 1882, a sale of a
12 acres for $3,000. In December, 1883, 4,1%7, acres sold .
for $6,500. In February, 1885, 43 acres sold for $3,000. }
In September, 1885, 6 acres sold for $1,000. . In 1882, 3
acres of salt meadow were sold for $200. And 13 acres on
the Boston Post road were sold for $1,758, or an average
of $150 an acre. We shall show in Pelham Manor a sale
of 17 acres in November, 1884, for $23,298; and in
December of that year, one of nearly 14 city lots for

$1,593. In February, 1885, 44 acres were sold for $8,000.

Then we come to Westchester. We can show you there
sales of 5 acres of salt-meadow in 1882 for $300; in June,
1882, of nearly 26 acres for $10,000 ; in June, 1883, of 206
acres on the Boston road, for $82,000; in October, 1883,
of 18 acres near Williamsbridge, for $8,000. In Eastchester,
in December, 1882, 94 acres were sold for $1,350; in
March, 1883, about 20 acres brought $10,000.

In New Rochelle—and it should be premised that New
Rochelle is a place of some 6,000 inhabitants, and perhaps
the most progressive village or town in the County of
Westchester, and one of the most desirable places for
summer residences—we can show that in October, 1882,
there was a sale of 21 acres at $600. And we shall eall
your attention to sales in March 1882, of 313 acres, for
$2,700; in December, 1883, of 2} acres, very desirably
located, leading to the steamboat landing, for $3,250; in
April, 1884, of 4 acres and a house for $5,000; in March,
1884, of 14 acres, for $550, and in September, 1884, of
113 acres for $1,738. Some of these sales in New
Rochelle are worth noticing to greater extent; for
instance, take the sale from Prime to Leroy, in
June, 1885. The consideration there was $25,000. That
was for 31 acres, with a house and stable worth $20,000,
and a water-front on New Rochelle creek, and fine shade
trees. The average price for that land was $163 per acer.
Take the sale from the Manhattan Life Insurance Company
to Adrian Iselin, Jr., consideration $32,000 for 38 acres ; the
average price for that land was $781an acre. This wasin

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the best portion of New lRochelle, known as the Leland
place. Take the sale of Underhill to Iselin, Jr., 89 acres,
the average of the sale per acre, including the buildings, was
$654. Take the sale from Coudert to Lang, in September,
1882, where the average realized was $375 an acre. At the
sale of 33 acres to David H. King, in 1882, where the
land was exceptionally fine, the sum realized was $758 an
acre. Take the sale from Smith to Hudson, in 1886, where
the land brought $264 an acre
New Rochelle—and so on. I might multiply these in-
stances almost indefinitely, but I have stated enough to
show our line of proof in regard to sales in the County of
Westchester and in the vicinity of Pelham Bay Park.

57 acres in the heart of

There is another class of proof which we shall intro-
duce, and that will be the Assessors’ estimates or valuations
already in evidence. We shall call the attention of the Court
to this Assessors’ roll, because it is already in evidence.
And your Honors may remember that, whereas Mr. Mills
says that the Assessors’ valuations may not be evidence for
certain purposes, still, they are evidence to contradict the
estimates made by the land-owners. I shall argue that
these returns or valuations made by the owners, and the
values fixed by the Assessors, because the Assessors have
only the returns of the owners upon which to base their
valuations, are evidence, and are entitled to some weight—
what that exact weight is, it will be for your Honors to
determine ; but it is certain that the valuations fixed by the
Assessors will serve to show how enormous avd monstrous
the values of the property-owners’ experts are, and how
far beyond the realm of reason.

Then we come to our fourth class of evidence—our
experts. We shall place on the stand men whose names
alone will be a suflicient guarantee of an honest and fair
valuation. We shall put on men who are known through-
out the whole City of New York, and whose judgment as
to the value of property is entitled to the greatest consider-

ation, not only from the public, but from any Court.

I will indicate to your Honors what we propose to show
—what valuations we assert are just, and fair and honest,

12

and why we think that the sums now claimed are un-
worthy of any consideration, and are manifestly, in a legal
sense, fraudulent. In regard to the acreage claimed—
which as arule is nearly correct—there are some slight
variations of a few acres. Of course, the Court will accept
the measurements of the engineer of the Commission, and
so will the City, and I presume, so will the land-owners, and
therefore there will probably be no issue as to that. In
some cases the variation is two or three acres, and some-
times more, but as a rule the estimates are nearly correct.

We shall show that the value of the Bartow property, 213
acres, or 2173 acres, instead of being as stated by the ex-
perts $467,953, is only $131,000, and that that is the full
market value of the property.

We shall show that Mr. Duryea is entitled, for his 92
acres of land and his buildings, to the sum of $39,000, or
thereabouts, instead of $197,000, as he claims.

We shall show that the Furman estate is entitled to not
more than the sum of $121,000, instead of $344,000,
the sum claimed by its experts.

We shall show that for the Twin Island property, the
total award should be $63,000—$48,000 for the buildings
and $15,000 for the land—instead of $150,380 asked for.

We shall show that the Bayard farm of Mr. John Hun-
ter, instead of being worth nearly $446,000, is worth
$106,000 at the most.

We shall show that the Hurst property, instead of being
worth $177,000, the average valuation of the experts on
the other side, is worth at the most $32,750.

We shall show that the fair price that the City should
pay for Mr. Iselin’s place is $175,000, instead of $575,000.

In regard to the Marshall estate, we shall show that the
honest valuation for that property should be’$88,000 in-
stead of $236,000, as claimed.

» 13

We shall show that for the Monroe place the correct
valuation is $19,250 —$14,000 for the building and $5,250
for the land—instead of $34,812 asked for.

We shall show that the R. R. Morris estate should be
awarded about $137,000—that is $127,000 for the land and
$10,500 for the buildings—instead of $437,000 claimed
by the experts.

We shall show that the James Morris property, now used
by the Country Club, is worth $58,000—-that is, $36,000 for
the land and the rest for the buildings——instead of $89,000
and upwards claimed.

We shall show that the 17 acres of the Raymond prop-
erty are worth $17,000, instead of $59,000.

We shall show that the Schuyler estate would be amply
paid by an award of $37,500 instead of $69,000, or there-
abouts, claimed on an average.

Vf

We shall show that Mr. Steers should be awarded not
more than the sum of $41,000, instead of $92,000 asked
for.

We shall show that Mrs. Ellen Ward should not receive
more than $46,000 instead of $189,000 demanded.

We shall show that Mr. Witherby, for his 32 aeres,
should not receive more than $33,000, that is, inelud-
ing the buildings, instead of $120,000 asked for.

We shall show that the Charles Squire Wood property
would be amply paid for by an award of $175,500, instead
of nearly $386,000 demanded.

It is not necessary to burden you with a very careful
and exhaustive recapitulation or explanation of our evi-
dence. I think that I have sketched with sufticient par-
ticularity our case. Thatis, I have outlined it sufficiently
in detail to warn the property-owners and to give notice
to the Court of the line of our evidence.

right of eminent domain is transferred into a le ma
plunder of the citizen. Now, I say that if these valu
which have been sworn to by these experts for these ]
owners be adopted, it will be a legalized plunder of
City of New York. .

Weshall produce our experts, and they will testify accord
ing to their conscientious judgment. They will not pi
estimates in order to have the Court strike an average—th
will testify to what they think is the full value. Our po
tion here is an impartial one ; we have no direct persone
terest such as the land-owners have, and the experts on
other side, and which is apt tu warp the judgment.
are acting here as the representatives of others,
being impressed with that fact, we shall deem it our d
to state what the real, honest compensation should be, a
not seek to place it below the true value. And in prepa
ing our estimates and our evidence, we have intended t
give these gentlemen all that their land is really worth. a |

We shall ask your Honors to listen to our proofs,
and to view these lands once more, or as often again as
you please, and then to make such awards as will leave this:
Court in honored memory when every root and branch in
Pelham Bay Park shall haye passed away, and long after
the all-embracing mould shall have claimed us for its own. ©

The Commission then adjourned to Thursday next, —
March 11, at two o’clock.

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