In The Founder's Constitution, an anthology of writings (letters, records of debates and early cases) relating to the Federal Constitution, Chancellor Walworth’s opinion in Livingston v Mayor of New York is included as Document 25 of the materials underlying Amendment V (Taking).
John R. Livingston, brother of Chancellor Robert Livingston, owned land in Manhattan which he developed by dividing it into 20 building lots. At the time the lots were sold, the streets were laid out on a map provided to the purchasers, but were not vested in the Corporation of the City of New York as public streets or highways.
The Common Council was petitioned to pave the streets -- now known as Attorney Street and Ridge Street—but was advised by the Street Committee that those streets could not be regulated and paved because the original proprietor of the land, Mr. John R. Livingston, refused to cede his interest to the City.
Eventually, the City took the four parcels of land required for the two streets, and the Commissioners of Estimate and Assessment awarded Livingston compensation of $1.00 with respect to his interest in Ridge Street. No monies were awarded for his interest in Attorney Street because the value of the lots that he still owned on that street increased in value when the roadway was paved. Livingston objected and sought compensation of $7,000 for his interest in part of Ridge Street and $30,000 for his interest in the other part of Ridge Street and the two parts of Attorney Street.
Livingston appealed to the New York Supreme Court of Judicature and when the Court affirmed the Commissioners’ report, he appealed to the Court for the Correction of Errors.
The case was argued in Albany in December 1831 with H. W. Warner and D. B. Ogden representing Livingston and Abraham Van Vechten and R. Emmet representing the Mayor. The Court for the Correction of Errors unanimously affirmed the Supreme Court decision.
Chancellor Reuben H. Walworth wrote an opinion in which he noted that if the plaintiff’s constitutional argument was valid:
all the streets which had been laid out in the city of New York for the last twenty years are wholly unauthorized and invalid except in those cases where the owners of the land have voluntarily given up their property for the use of streets.
The Chancellor held that 1) where the owner of lands in a city sells building lots bounded by streets laid out on a map but not actually opened, the purchasers acquire a legal right against the seller to have the streets opened to the width delineated on the map; 2) in calculating the value of land appropriated by the City of New York for streets, the land was deemed burdened by the easements of the purchasers of the lots; 3) where land is taken for a street, and the owner possesses adjacent property, the increased value of his adjacent property may be set off against the loss sustained by the taking of his property; and 4) where, in the Fifth Amendment of the Constitution of the United States provides that no person shall be deprived of his property without due process of law, the provision "was intended to apply to the general government only, for the purpose of restricting and limiting its powers, but without any intention of limiting or controlling State legislation."
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