Clark v. State

15 N.Y.2d 990 (1965)

Ernest L. Clark, Appellant, v. State of New York et al., Respondents. (Claim No. 37203.) Frank P. Thom et al., Appellants-Respondents, v. State of New York et al., Respondents-Appellants. (Claim No. 37940.) First National City Trust Company, as Trustee for John J. Astor and Others, Appellant-Respondent, v. State of New York et al., Respondents-Appellants. (Claim No. 37993.)

Court of Appeals of the State of New York.

Argued March 9, 1965.

Decided April 15, 1965.

Louis Young, Francis Preston and La Verne F. O'Dell for appellant.

Louis Young and La Verne F. O'Dell for appellants-respondents.

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman of counsel), for State of New York, respondent and respondent-appellant.

Thomas F. Moore, Jr., Edward L. Ryan and Louis R. Bennett for Power Authority of State of New York, respondent and respondent-appellant.

Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN concur.

*992MEMORANDUM:

The orders should be affirmed, without costs. The easement is to be construed strictly against the State and Power Authority and, at the very least, claimants possess "the right and privilege of using such property, provided the exercise of such right and privilege does not interfere with or prevent the user and exercise of the permanent easement" as well as "the absolute right to cross the said lands covered by the easement for purposes of ingress and egress, including the right to build roads across the said lands and to have the right in perpetuity to use said roads." Further concessions made by the State and the Authority in this court amplify that stipulation by conceding that it includes not merely the right of ingress and egress and to build roads on the surface of the land, but also to construct and maintain electric, telephone, water, gas, sewer and other customary wires and conduits or other usual utility structures, above or below ground at suitable locations in conjunction therewith. (Cf. Holden v. City of New York, 7 N Y 2d 840.) It follows that, if the State or Power Authority later interferes with these rights of claimants, they will have to answer for a de facto appropriation (Jafco Realty Corp. v. State of New York, 14 N Y 2d 556).

Orders affirmed.