412 



Suppose a railroad company should hereafter take proceedings to 

 acquire the fee of this land, would not the Courts hold that the 

 damages should be nominal to the owner, it being already burthened 

 with the easement of a public street 1 



Although the nominal fee is not taken from the City by this pro- 

 ceeding, yet its whole value is destroyed, except for a nominal 

 amount, so that the City only obtains in damages what the land 

 originally cost. 



It will be observed that the Statute of 1869 requires the 

 damages to the owners to be estimated, and it may well be, that, 

 considering the nature and extent of the easement, the damages 

 awarded or estimated are the full sum the land originally cost. At 

 all events, the amount was vested in the discretion of the Com- 

 missioners. 



It is immaterial to consider whether this law was an attempt on 

 the part of the Legislature to exercise the right of eminent domain. 

 Concede that it was not, yet the act is not invalid. The Legislature 

 had previously vested the fee of this land in the City of Brooklyn. 

 By the act in question, it is provided that a certain portion of it 

 should be taken for the use of the general public ; that the owners 

 (the City of Brooklyn) should be paid the amount of damages as 

 estimated by a commission provided for in said act ; and that two- 

 fifths of said damages should be paid by parties owning land on the 

 opposite side of the street. It was competent for the Legislature to 

 do this under its power of taxation. 



It is claimed by the appellants that the terms of the act are 

 answered by its application to Fifteenth street. But this is answered 

 by the terms of the act itself (Section 4), wherein it is careful to 

 provide that three-fifths of the expense and damage to be caused by 

 the widening Ninth avenue should be assessed upon the Park 

 side. 



(See also Section 11, page 1,106, R. S. Banks and Brothers, 5th 

 ed., Vol. 3.) 



But the act in question went further than to provide for an award 

 of damage to the owner of the fee. It provided that said Com- 

 missioners should assess the damages that might be sustained by any 

 person affected by such taking of land. 



The Act of 1861, which authorized the original acquisition of the 

 land by the City, authorized the City to issue bonds to raise money 

 to pay for the land, and created a sinking fund for the redemption of 

 said bonds. 



Section 12 of that act also pledged the land widened to the Park 



