United States Congressional Serial Set

CHANNEL OF THE HARLEM RIER SHIT CANAL.

LETTER

FROM

THE SECRETARY OF WAR,

TRANSMITTING

PURSUANT TO SENATE RESOLUTION NO. 347 OF SEPTEMBER 9, 1922, INFORMATION RELATIVE TO THE INTERFERENCE WITH THE STRAIGHTENING OF THE HARLEM RIVER SHIP CANAL CHANNEL BY CONVEYANCES OF CERTAIN LANDS MADE BY ISAAC G. JOHNSON & CO. TO THE NEW YORK CENTRAL RAILROAD.

NOVEMBER 23, 1922.-Referred to the Committee on Commerce and ordered to be printed.

The PRESIDENT OF THE SENATE.

WAR DEPARTMENT, Washington, November 21, 1922.

SIR: I have the honor to transmit herewith a letter from the Chief of Engineers of the United States Army dated October 26, 1922, indorsed by the Judge Advocate General, together with report of Col. Edward Burr, Corps of Engineers, dated October 17, 1922, in which is presented the information requested in a resolution of the United States Senate passed September 9, 1922, whether the conveyances made in June, 1922, by Isaac G. Johnson & Co., a corporation of the State of New York, to the New York Central Railroad Co., also a corporation of the State of New York, of certain land on or contiguous to the proposed modification of the channel of the Harlem River Ship Canal, prevents or seriously interferes with the straightening of such waterway in accordance with the project of improvement which was adopted and authorized by the act of Congress approved March 3, 1913.

Respectfully,

JOHN W. WEEKS,
Secretary of War.

Subject: Modification of channel in Harlem River Ship Canal.
To: The Secretary of War.

(Through the Judge Advocate General.)

1. There is submitted herewith for transmission to the Senate a report dated October 17, 1922, by Col. Edward Burr, Corps of Engineers, presenting the information requested by the Senate in a resolution passed September 9, 1922, reading as follows:

Resolved, That the Secretary of War is hereby directed to report to the Senate, as soon as practicable after due investigation, whether the conveyances made in June, 1922, by Isaac G. Johnson and Company, a corporation of the State of New York, to the New York Central Railroad Company, also a corporation of the State of New York, of certain land within or contiguous to the proposed modification of the channel of the Harlem River Ship Canal, prevents or seriously interferes with the straightening of such waterway in accordance with the project of improvement which was adopted and authorized by the act of Congress approved March 4, 1913.

Attest:

GEORGE A. SANDERSON, Secretary.

2. The improvement of the Harlem River near the Johnson Iron Works was authorized by Congress in the following item of the river and harbor act of March 4, 1913:

Improving Harlem River, New York: Continuing improvement, $100,000; for improvement in accordance with the project numbered three in the report submitted in House Document Numbered Five hundred and fifty-seven, Sixty-second Congress, second session, $5,000: Provided, That no construction work shall be executed by the Federal Government beyond the channel limits of the existing projects until local or other interests shall furnish, free of cost to the United States, the necessary land for the right of way required for said project; in all, $105,000.

3. The project for the improvement of the Harlem River, authorized by Congress prior to the legislation in question, provided for a continuous channel from the East River to the Hudson River, generally 400 feet wide and 15 feet deep at mean low water. In the report submitted in House Document No. 557, Sixty-second Congress, second session, in accordance with which the further improvement was authorized by the act quoted, it is shown that the development of navigation in the Harlem River is much hampered by the curve in the river at the Johnson Iron Works. Vessels entering the Harlem River from the Hudson pass through an arc of practically 180° at this point. The tidal currents in the vicinity are strong, and with the sharp turns make navigation somewhat difficult for single boats and dangerous when boats bound in opposite directions meet. The report presented four alternative plans for improving conditions of navigation, and recommended that designated as project No. 3, which provided for the rectification of the bend to the maximum extent possible without interfering with the line of the adjacent railroad right of way. The cost of the work was estimated at $850,000, and the work was recommended subject to the condition that no construction work should be executed by the Federal Government beyond the channel limits of the existing projects until local or other interests furnish, free of cost to the United States, the necessary lands for the rights of way required. This condition, specifically imposed by the act authorizing the improvement, has not as yet been fulfilled, and no construction work on the channel has as yet been undertaken.

4. The district engineer reports that under date of June 30, 1922, Isaac G. Johnson & Co. conveyed to the New York Central Railroad Co. two parcels of land, one of which extends over the right of way for the proposed modified channel authorized by Congress in the act of March 3, 1913. On this parcel certain heavy anchorages of the transmission line of the railroad are located. The eventual excavation of the channel will entail the removal of these anchorages and the consequent removal or modification of the transmission line. presents the conclusion that the conveyances mentioned in the Senate resolution will not have the effect of preventing or seriously interfering with the straightening of the Harlem River channel.

5. By an act approved by the Governor of the State of New York on April 1, 1922 (chap. 407, Laws of New York), the State of New York appropriated $1,500,000 "to enable the State to purchase the right of way necessary for the improvement of the Harlem River and Spuyten Duyvil Creek from the North River to the East River through the Harlem Kills."

6. Under the authority thus granted, the State authorities are negotiating for the purchase of the necessary lands for the right of way for the channel at the Johnson Iron Works. I know of no reason why the transfer of a parcel of the land from the prior holder to the New York Central Railroad Co. should prevent the acquisition of the land by the State of New York, and I concur therefore in the views of the district engineer that the conveyances mentioned will not have the effect of preventing the straightening of the Harlem River channel in accordance with the project of improvement as authorized by the act of Congress approved March 4, 1913.

LANSING H. BEACH,

1. On September 29, 1922, the Senate of the United States passed a resolution reading as follows:

Resolved, That the Secretary of War is hereby directed to report to the Senate as soon as practicable after due investigation whether the conveyances made in June, 1922, by Isaac G. Johnson and Company, a corporation of the State of New York, to the New York Central Railroad Company, also a corporation of the State of New York, of certain land within or contiguous to the proposed modification of the channel of the Harlem River Ship Canal prevents or seriously interferes with the straightening of such waterway in accordance with the project of improvement which was adopted and authorized by the act of Congress approved March 4, 1913.

As a preliminary to compliance with this request the Chief of Engineers has prepared a report to the Secretary of War stating that he knows of no reason why the transfer of a parcel of the land from the prior holder to the New York Central Railroad should prevent the acquisition of the land by the State of New York, and he therefore concurs in the views of the district engineer (Col. Edward Burr, C. of E.) that the conveyance mentioned will not have the effect of preventing the straightening of the Harlem River channel in accord

ance with the project of improvement as authorized by the act of Congress approved March 4, 1913.

This office concurs in the views expressed by the Chief of Engineers. By chapter 407 of the Laws of 1922 of the State of New York an appropriation of $1,500,000 was made by the legislature—

to enable the State to purchase the right of way necessary for the improvement of the Harlem River and the Spuyten Duyvil Creek from the North River to the East River through the Harlem Kills.

That act contained no provision for condemnation of the land in question in case of failure to agree upon a purchase price with the owners thereof, probably because by section 14 of chapter 414 of the Laws of 1913 (of which the act of 1922 was amendatory) condemnation of these lands, in the absence of agreements, has already been provided for.

2. As respects an acquisition by purchase, it would seem to be immaterial from whom the State was required to purchase, because in any event the State would be required to meet the purchase price set by the vendor. There is nothing in these papers which would warrant the assumption that the New York Central Railroad intends to place large improvements on the land recently purchased. If it were to do so, that might, it is true, "seriously interfere" with this project, but the War Department is without information on the plans of the railroad in this connection.

3. If the underlying thought in this resolution is that the conveyance to the railroad may result in improvement being made on the property which, in the event of condemnation, will enhance the damages, all that can be said is that the law of New York, like the law generally elsewhere, seems to provide that the good faith of one who purchases or improves land prior to an acquisition which he knows is contemplated by the State may be inquired into, on condemnation proceedings, and improvements made in bad faith for the purpose of enhancing the damages disallowed. (20 Corpus Juris, p. 802.) In condemnation proceedings a number of questions would probably arise, such as whether or not the State had proceeded far enough to put the railroad on notice, whether the parcels which it was purposed to condemn had been sufficiently identified prior to the improvements by the railroad, etc., for the answers to which there are not sufficient facts disclosed in the accompanying papers. This office, therefore, is unable to express an opinion on the law applicable to a contingency which would necessitate so many assumptions of fact.

4. If the acquisition of this property by the New York Central Railroad were to prevent its condemnation by the State of New York or by the United States, that fact would, of course, constitute a serious interference with the work now projected, but "the rule is well established that property previously devoted to one public use may be taken under the power of eminent domain for another and different public use." (20 Corp. Juris, sec. 88, citing numerous New York cases.) That lands held by a corporation or public body in New York but not used for or necessary to a public purpose may be taken as if held by an individual owner, see Matter of Rochester Water Commissioners, 66 N. Y. 413. It has likewise been held in New York that the rule that property already devoted to a public use can not be

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