Schroeder v. City of New York

PETITIONER:Schroeder
RESPONDENT:City of New York
LOCATION:Beaumont Mills

DOCKET NO.: 75
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 371 US 208 (1962)
ARGUED: Nov 15, 1962
DECIDED: Dec 17, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – November 15, 1962 in Schroeder v. City of New York

Earl Warren:

Number 75, Madeline C.Schroeder, versus City of New York.

Mr. Scheinman.

Louis B. Scheinman:

Mr. Chief Justice, Associate Justices of this Court.

This is an appeal from an order on a divided decision of the New York Court of Appeals which held constitutional a statute in a condemnation proceeding and which statute was attacked in this case on the grounds that the notice provided therein was inadequate in order to comply with due process as guaranteed by the Fourteenth Amendment.

For the reasons that the time that we have here today is short, I would like to forego speaking of the procedural aspects of this case and exactly how this case came to this Court except merely to point out that this was an action for an injunction brought by the plaintiff who was a riparian owner owning a home on the Neversink River.

That the City of New York had acquired the right to divert that river in a condemnation proceeding brought in 1952 and that this claimant or rather this plaintiff here had no knowledge or notice of this proceeding whatsoever and brought this action for an injunction in 1959 after learning of the acquisition of her property or portion of her property by the city.

The motion made here by the City of New York was for judgment on the pleadings and consequently all of the allegations of the complaint under New York law since this is a motion similar to the common law demurrer should be deemed true.

There was a cross motion made by the plaintiff, the appellant here to dismiss the city’s answer to the complaint.

The Court of Appeals as I’ve said by a four-to-two decision held that the notice requirements of this statute were adequate.

Now, the notice provided in this condemnation statute was notice that had no personal service or any effort at personal service provided in it.

The statute required in addition to publication in the city record which is the official publication of the City of New York and not a newspaper commonly read.

It also provided for notice in two newspapers published in New York City.

These properties are of course considerable distances outside of the territorial limits of New York City and this notice relating to city newspapers, is primarily for the information of city officials and New York City inhabitants.

In any event, the appellee here has never claimed that the notice in the New York City newspapers was even designed to calculate in any way to give any notice to the local property owners, many of whom are more than a hundred miles away from New York City.

What’s the purpose of that city notice?

Louis B. Scheinman:

The only purpose that I can think of is to give notice to city officials, members of the Board of Investment and Board Water Supply and that — their employees, the employees of the Department of Water Supply, Gas and Electricity and so on —

Instead of writing them letters?

Louis B. Scheinman:

Of the Water Supply project.

I don’t know of any other purpose that it can serve Your Honor.

In any event —

That’s not claimed here to be significant as far as your problem is concerned.

Louis B. Scheinman:

No, it does not.

And the city does not even claim it to be any form of notice that is significant insofar as property owners are concerned.

The remaining notice is that the notice of motion which the city is required to make in order to acquire this title be published in two newspapers located in the county in which the property is located.

And the briefs here have shown how the city has deliberately used the lack of definiteness in the statute.

The lack of any requirement that these newspapers be those published or having circulation in the area of the taking.

But a — just a general requirement that it’d be two newspapers in the county and I think the briefs have shown how the city has bypassed those newspapers which were like — would possibly be likely to give notice in the area of the taking and has gone too far into the county to find small newspapers of limited circulation which could not possibly be expected or calculated to have any circulation whatever in the area of the taking in which to technically comply with this inadequate statute.

There is one other requirement for notice and that is that handbills be posted in 20 conspicuous places in the area of the taking.

There are 20 places in the vicinity of the taking.

I think that is the way the statute reads.

Louis B. Scheinman:

Now, that has been construed in this situation here to constitute 20 notices, the city actually posted 22 along a seven or eight miles stretch of river, which would naturally mean 14 to 16 miles of riverbanks.

And which stretch of river had no less than 96 numbered parcels shown on the city’s maps.

That is 20 notices, 22 notices for 96 properties.

And we know that not counting the riparian properties, those which are on the river and have their frontage right in the river, there are a great number of properties upland from the river which property owners have deed rights in their deeds to bathe, swim and to fish and use the river for various recreational purposes.

Altogether, we would estimate that there are approximately 200 properties that are affected in this Neversink riparian Section Number 4, that’s a seven or eight mile stretch of river.

And for these 200 properties, there were only 20 notices, or 22 notices.

The city did not even attempt to post these notices in public places but instead published — posted them on trees and poles along the river and this was done in January for a motion returnable in March.

And it was well known to the city that these properties in this area are — some were occupied mainly.

I believe that — I will say nothing further about the publication used here because of the time.

However, I do wish to point out that it is our position that even these posters and the city distinguishes between notice by publication and posting that even these posters are not in the least fit personal notice of any kind.

And that is that there is nothing personal with respect to these handbills that are posted up along the river.

The notice of motion is all that it is that is posted and that is all that it is that is published.

It does not contain the names of any of the property owners who are affected.

It does not advice them that there is anything that they have to do in order to ensure compensation for themselves.

There is a statute of limitations here whereby if their claim is not filed within three years from the date of the title vest, they are barred from any compensation whatever.

And the city has waited for that statute of limitations to expire in a great many cases and has refused to make any compensation whatever to those who failed to file claims within that time.

Arthur J. Goldberg:

Is it conceivable that the property owners in there did not actually know that this thing was going on?

Louis B. Scheinman:

It is not only —

Arthur J. Goldberg:

(Inaudible)

Louis B. Scheinman:

It is not only conceivable Your Honor but it is a fact that a great many of the property owners did not know.

You take this particular property here which is 25 miles downstream from the location where the river has been diverted.

That is 25 miles downstream from the dam.

As the river travels downstream, it picks up waters from the tributaries so that despite the fact that there is a hundred percent or near a hundred percent diversion as the location of the dam, there was only approximately a 50% diversion at the location of this property here in Orange County.

A 50% diversion does not make such a diversion apparent to the eye a layman.

The height of the stream is still substantially the same.

The thing that is drastically affected is its temperature, is its velocity of flow, is its carrying capacity, the fact that it no longer has a scoured and cleaned bottom but it’s unable to carry silt or sedimentation.

Now the stream was, before the diversion, a fleshy stream, that is that — had its times when it was high and when it was low.

It is really not possible for a layman to look at the river and to thereupon assume that there had been a diversion 25 miles upstream that — it was a diversion by a municipality for water supply purposes and that it had to file a claim for compensation or was even entitled to compensation within any specified time.

There was no way that a layman would know that unless that person happened to hear about it in some fortuitous manner.

In any event the statute —

(Inaudible)

Louis B. Scheinman:

I beg your pardon?

(Inaudible)

Louis B. Scheinman:

In this case, although it does not appear in the record, there was a consultation with an engineer and the engineer told Mrs. Schroeder what had occurred and discussed with her the fact that she — that this was an artificial diversion for which she had a right to file a claim for compensation.

Now —

Earl Warren:

Are the names of the owners and their addresses known to the condemning authority —

Louis B. Scheinman:

Well, their —

Earl Warren:

— were it available to them?

Louis B. Scheinman:

There was no question about — but that — that is so Your Honor.

The city has denied that in answer — answering brief here.

However, if Your Honor would — if Your Honors would examine the map which is defendant’s Exhibit A in evidence here, Your Honors would see that the index shows Parcel No. 424 is listed to Madeline Schroeder.

And if Your Honors would look at Parcel No. 424, you would see that its frontage in the river was mapped down to a tenth of a foot, that all properties are mapped down to a tenth of a foot.

These maps are filed in the county clerk’s office before the proceeding has commenced.

And consequently, in order to obtain all the detailed information that the city has to obtain to prepare these maps, it has made deed studies and — our deeds as mentioned in the complaint, it contains our address, the address of this property owner in New Jersey where she lives in the winter, and of course the city knows the address of the property it is taking, and knows the — its post office address at the property itself.

There was no question for that, the name and the address of this property owner was known to the city or could have been ascertained without any difficulty whatever.

The tax rolls had her name and her New Jersey address for example.

A letter mailed to her at the property would have been forwarded to her in New Jersey if it were done on the winter.

She would receive it herself if it were done in the summer.

There was no basis here to claim as the city has claimed that they were — that they did not know her address, unless by that, the city means that some attorney or other official of the city wanted to know Ms. Schroeder address and just didn’t think of what it was and didn’t have it in his head because he certainly had it in his files.

It’s impossible to draw any other reasonable conclusion, if it please the Court.

I would like to reserve a few minutes for rebuttal, if I may.

Earl Warren:

You may.

Louis B. Scheinman:

Thank you.

Earl Warren:

Mr. Lee.

Theodore R. Lee:

Mr. Chief Justice, may it please the Court.

Preliminarily, I would like to establish that the city complied with the various provisions of the Water Supply Act, the Court of Appeals expressly found that the city had complied with those provisions.

And I respectfully submit that, this Court is bound by that finding.

I shall confine my argument in view of the limitation in our time today to the proposition that the notice provided by statute and given here was constitutionally sufficient.

The handbills that were posted were printed with permanent ink on durable cloth, approximately two feet long by a foot and a half wide and they were firmly affixed to the places to which they were attached.

This is a facsimile of the handbill and it’s not likely that this handbill would be mistaken for a no trespassing, hunting or fishing sign.

Without reading though, what is the substance of the (Inaudible)

Theodore R. Lee:

It shows that the — it’s an application for appointment of commissioners of appraisal to determine damages to properties, these are riparian properties, properties that are located between Cuddebackville and Huguenot so that would definitely indicate this particular individuals’ interest in it.

Now, these —

Earl Warren:

(Inaudible)

Theodore R. Lee:

Yes, sir.

Earl Warren:

Did this state any of the requirements so far as the individual is concerned?

Theodore R. Lee:

Not except that on the particular day, an application will be made for the Commission to divert and — for the appointment of commissions of appraisal.

These (Voice Overlap) —

There’s a copy of that — is a copy of that printed in the record?

Theodore R. Lee:

On page (Voice Overlap) —

On the briefs?

Theodore R. Lee:

— 21 and 22A, I think it is.

I intended to making that but neglected to.

Now, there were five sections here and there were 22 or 23 of these posters post up in every section which means that there were 112 posters all tolled in these proceedings.

Now this present case furnishes a good example of how these posters were put where they were likely to be seen.

The only way, absolutely the only way, they will get to the appellant’s property is by turning off to Route 209, the road that roughly parallels the river on the west side on to a narrow, unpaved, dead-end road only three tenths of a mile long.

And only the appellant’s cottage and two or three other cottages were on this short road.

Now, one of these handbills was posted right at the junction, the Route 209, and this short road where anyone turning off in view of the narrowness of the road, anyone turning off of the appellant’s property couldn’t possibly miss seeing that notice.

And I say, whether she saw it or not, that anyone who saw that notice would observe, be likely to observe that it was a legal notice.

And anyone of some kind, and anyone living on that short road would be likely to read it, to see if it applied to her property or her neighbor’s property and if anybody did read it as I explained before that he — put on notices to what this was all about.

Potter Stewart:

Wasn’t this case decided in the pleadings, judgment on the pleadings?

Theodore R. Lee:

Yes, sir.

It was on a motion on the judgment of the pleading.

Potter Stewart:

And wasn’t there an allegation in the complaint that she didn’t —

Theodore R. Lee:

There was no allegation in the complaint that — well, no, there was a — this was a situation, the complaint alleged that she — before the retention of counsel in September 1959, that she was not aware of the fact that the city had acquired any portion of her property.

Potter Stewart:

Yes.

Theodore R. Lee:

She also said that, she was not aware of the fact that she had a right to file a claim but there I think it’s very significant that she does not specifically allege that she was unaware of the diversion.

Potter Stewart:

Well, it’s at least ambiguous, isn’t this something that — let’s assume that you’re correct that whatever the shortcomings of a statute as to notice might be constitutionally, that if the petitioner had — had actual notice and that could be shown that these — that this — in this case she was not deprived of her property by — in violation of due process of law, but isn’t that a matter of proof in view of the allegation of the complaint.

Theodore R. Lee:

A matter to prove as to whether she had noticed it or not?

Potter Stewart:

That’s right.

Theodore R. Lee:

I don’t — I wouldn’t say so.

By the way, I won’t — I might add this to clarify (Voice Overlap) —

Potter Stewart:

And I mean, isn’t —

Theodore R. Lee:

— even before —

Potter Stewart:

What I’m really suggesting to you is that the — you’re telling us about where these notices were posted and so on and you tried to make that proof to us, but this was a case decided on the pleadings —

Theodore R. Lee:

But the —

Potter Stewart:

— and the allegation to the complaint was she didn’t know.

Theodore R. Lee:

Well, in the record there is an affidavit of an Alfred J. May, which tells exactly where these posters were put — afoot.

Now, and I’ll return — I want to clarify this, you acted about what appeared in the complaint, in addition to the things I mentioned, it says that she wasn’t aware of the proceedings.

It didn’t say that she was not aware of the verdict — diversion since she was aware of the proceeding.

Now, —

Arthur J. Goldberg:

(Inaudible)

Theodore R. Lee:

Sought to acquire — sought to (Voice Overlap) —

Arthur J. Goldberg:

(Inaudible)

Theodore R. Lee:

— acquire the right to divert.

She said, she didn’t acquire the right to divert, but that doesn’t say that she didn’t know about the diversion as I read it.

Potter Stewart:

Well, at least it’s subject to different readings, isn’t it?

Theodore R. Lee:

Well, (Voice Overlap) —

Potter Stewart:

If you’re right — excuse me —

Theodore R. Lee:

That the way I — the way I interpret it, there are — maybe to an actual amount of arguments over the subject, but it seems to me that since you put all of these different allegations in, that there’s — it looks like she carefully omitted to say she was not aware — that she was unaware of the diversion.

Potter Stewart:

Well, my only thought — the thought behind my question was this, that if you are right, the actual knowledge, pure as any constitutional defect in the statute, that should — or perhaps to be a matter of proof in this case rather than — rather than to have it something decided on the — on the pleadings.

Theodore R. Lee:

Well, we’re not depending so much on actual notice in this case under these circumstances.

But the test that has been laid down by this Court in the preceding cases down to the years is whether or not the notice is reasonably — kept reasonably calculated to come to the attention of the parties.

And I say that, in view of the posting, in view of the publication, in view of the patently visible effect of the diversion, and in view of the nature of these proceedings, and the nature of the project which was so big that it would be bound to come to the attention of everybody around, in view of all of these circumstances, the notice given here, whether she saw it or whether she didn’t see —

Potter Stewart:

Well, what you’re saying then is that —

Theodore R. Lee:

(Inaudible)

Potter Stewart:

— this statute, whether she knew about it — actually knew about it or didn’t know it, this statute is constitutionally (Voice Overlap) —

Theodore R. Lee:

Exactly and that any further —

Potter Stewart:

So, if she showed that she was in Europe for ten years while this was going on and there was no caretaker in her property, still the state could do this to her (Voice Overlap) —

Theodore R. Lee:

That is absolutely right that being a nonresident here, she would be under some — a resident of New Jersey, she would be under some duty to come here because this notice in view of all these circumstances I make — mentioned, this notice was so sufficient that it seems to me, to require any different or additional notice would be merely superfluous.

Theodore R. Lee:

Now the notice was —

Hugo L. Black:

You make it — you make it rather dangerous to own a property and not live on it, wouldn’t it?

Theodore R. Lee:

Well, I wouldn’t say so, because this Court has said in a number of opinions if the nonresidents who live on property usually have a way of finding out things that are happening to their property.

Now, in this particular case, she owned the property in New York and according to the allegation of the complaint and the statements in the brief, she spend about two months — two months every year at this property.

And its inconceivable to me how under those circumstances, she wouldn’t hear about the construction of this huge reservoir and she wouldn’t see this poster, and if she did see it, that she — she wouldn’t read it.

But I say under all other facts and circumstances, this notice is given, we bear in mind that we are acquiring limited inputs, the right to divert here.

And under these peculiar circumstances particularly, the notice given here was legally sufficient.

Now, if I may address myself briefly to this newspaper — these newspaper publications, the question was asked, I believe, by Justice Harlan, I believe it was in regard with the purpose of New York City papers.

One of the New York City papers that was published then was the New York Times, and of course it has a circulation outside of the area.

But I’m not stressing that so much as to indicate that — I think it does have some tendency to give some notice.

But my friend, Mr. Scheinman here has suggested that we should’ve had picked out different local newspapers in Orange County.

And now, it happened — and that he suggested, we should have published to newspapers in the cities in Orange County.

But this is what I suggest and that is, those were weekly newspapers.

It may be that their circulation wasn’t as great as city newspapers might be.

But when people read these weekly newspapers, they’re inclined to read them all the way through including legal notices.

And when they read them, they start talking about them, to their friends and neighbors.

So, the Court of Appeals found, the majority of the court did, that these were appropriate newspapers.

Earl Warren:

Was there any newspapers in the county that were closer to the diversion or to (Voice Overlap) —

Theodore R. Lee:

There —

Earl Warren:

— of these properties (Voice Overlap) —

Theodore R. Lee:

There were a couple — I think one in Port Jervis and the other one I believe is — was Middletown who — that were somewhat closer to this particular property although the three immediate communities around closest to her did not publish newspaper.

There were two city newspapers located in Orange County that were somewhat closer.

I might say this in view of the statement in the appellant’s brief.

I don’t know if it mentioned here, he said these newspapers were some 30 or 40 miles away.

Actually by a road, there were 22 and 27 miles away respectively or direct — in a direct line, 17 and six-tenths and 18 and two-tenths miles away.

They weren’t — there were some distance away but they weren’t quite afar away as suggested by the appellant.

Hugo L. Black:

Does the record show whether the names and residence — and addresses of the owners were available?

Theodore R. Lee:

The record I think would show that the name was available.

I do believe the record is silent as to whether the address — there wasn’t — there was no allegation in the complaint and I think the record didn’t — is silent on that point in regard to whether the city knew the appellant’s address although the appellant now contends that the city did.

And the fact is that although — of course, the city knew the location of this property, it didn’t have the appellant’s post office address.

Earl Warren:

Home address, you mean?

Theodore R. Lee:

Well, the — there’s a difference between the legal description of property and the post address.

It’s impossible to tell just where those lines are.

And also from these deed studies that he mentioned, they were prepared by engineers for the purpose of preparing the maps and they showed only the names of the owners and the description of the property so that wasn’t the source of information regarding — regarding their address.

In any event, the addresses are not a reliable source of informa — deeds are not a reliable source of information concerning the addresses, bearing in mind there were over 400 properties involved in this proceeding.

Many of the deeds would be old, the addresses of the grantors who were shown frequently not the addresses of the property and the addresses —

Hugo L. Black:

Are there any taxes —

Theodore R. Lee:

— of the grantees are frequently the addresses from which they’re moving instead of — to which they moved.

Hugo L. Black:

Any the taxes assessed against the property?

Theodore R. Lee:

A tax — taxes, I presume were — would be assessed to the property and my friend, Mr. Scheinman, suggest that we should’ve consulted the tax records.

But I submit and that’s reasonable to do when the taxing authority of the condemnor is one of the same.

But I call attention to the fact, here we were condemning interest in over 400 properties outside of the city limits and have a dozen different tax districts.

And in view of the adequacy of the notice and the nature of these proceedings, I respectfully submit that there should be no requirement for us to look at all of these different tax records and all of these deeds because that would unreasonably delay the proceeding and put the city to an unnecessary expense in view of the other surrounding circumstances —

Are these notices sent out from New York City, is that it?

Theodore R. Lee:

The — these particular notices were copies sent out from Kingston, New York.

That is — New York City Law Department has Water Supply Law Office in Kingston, New York and also one in Binghamton and in these particular notices were probably sent out from the Kingston office.

Kingston office.

Byron R. White:

As a matter of fact, you do not have the exact — the exact file.

Theodore R. Lee:

The names of the riparian owners we did —

Byron R. White:

(Inaudible)

Theodore R. Lee:

We did have — we did not have the address.

The names that the — the names appeared on the map and this doesn’t — and we also, as I’ve said, in that deed study, we had a description of the property.

(Inaudible)

Theodore R. Lee:

Not the post office address.

(Inaudible)

Theodore R. Lee:

It is possible that through — to searching the deeds or searching of the tax records, it might have been possible and I suggest that it should be required over the circumstances here where there’s a limited interest being taken in — for such a big project.

These proceedings or the posting of the notices as I understand it took place in 1952, is that right?

Theodore R. Lee:

That’s right.

And the action was brought in 1960?

Theodore R. Lee:

That’s right.

Is there anything that accounts —

Theodore R. Lee:

Because there was —

— for the eight — nearly eight years delay?

Theodore R. Lee:

Not that I can possibly see, it’s seven and a half years after the taking and six and half years after the diversions.

Instead of filing a claim within — in the proceeding within the three years prescribed in the statutes, she waited all of that time and that’s based (Voice Overlap) —

The statute of limitation is what — three years?

Theodore R. Lee:

Three years.

William J. Brennan, Jr.:

But she — well, did she allege that she didn’t know about her right of action until 1959, that’s in her complaint?

Theodore R. Lee:

But she’d — but she doesn’t allege what caused her after apparently being satisfied with the river.

Earl Warren:

It’s alright, go — go right ahead, go right ahead.

Theodore R. Lee:

After being apparently satisfied with the river for seven and a — for six and half years after diversion —

And the fishing had been (Inaudible) —

Theodore R. Lee:

— once she decides that she wants to bring this action, accept what complaints says that she wasn’t aware of those — these things that we’ve all —

Potter Stewart:

And in this —

Theodore R. Lee:

— been talking about until she consulted counsel in September 1959 (Voice Overlap) —

Potter Stewart:

In this case, we have to take (Voice Overlap) —

Theodore R. Lee:

(Inaudible)

Potter Stewart:

Excuse me, I beg your pardon.

In this case we have to take what said in the complaint is true, do we not?

Theodore R. Lee:

I would say so.

I am not prepared to say anything different.

Potter Stewart:

Well, you can’t, because this was decided on the pleadings, isn’t that correct?

Theodore R. Lee:

That’s right.

Potter Stewart:

I mean, you can’t and we can’t and in the posture that this case is now in.

Theodore R. Lee:

I would say that it’s right on the record.

Potter Stewart:

And I’d — may I ask you one other question?

The dissenters in the Court of Appeals, Judge Dye says at the bottom of page 51 of the record in the dissenting opinion that the city did have available, the appellant’s address.

And no reason appears why such a notice could not have been given, is that — do you challenge that as a matter of fact or?

Theodore R. Lee:

Oh, I presume, I don’t challenge it to this extent.

I presume by that — by that he meant that we could’ve consulted tax records or looked at deeds and probably have done little more than we did — do.

Theodore R. Lee:

That’s the way I interpret that.

Earl Warren:

Mr. Scheinman, you may —

Louis B. Scheinman:

A few minutes if I may.

Earl Warren:

Yes.

Louis B. Scheinman:

With respect to the address, if the city would’ve merely mailed notices to each property owner at the location of the property, now Mr. Lee could not deny that it did not know the post office address at parcel number 424 which it had mapped on — and placed on its maps.

That property had a post office address, would’ve been no effort to find that one and a letter mailed to the claimant at that particular address would’ve certainly reached her.

In any of event I say that this argument by the city at this point that it did not have the names, the addresses is truly not a fair argument for it to make for this reason.

What if it did have their addresses?

Each and every one of their addresses in — at the property and wherever else they live, it didn’t send any notices to anyone.

No one received any mail from the City of New York as to this taking.

It sent notices to no one, not even people who lived right at the riparian property.

So, consequently their argument now that they didn’t have the name and addresses is truly a much belated excuse and that’s not a reason for not mailing notice.

Certainly, with respect to Mr. Lee’s statement that the newspapers were selected in Orange County because they were weekly newspapers and the two newspapers near this property, one just seven miles away and one published in the city eight miles away, both cities on either side of this property.

And having circulation in this area, the reason that they selected these small newspapers as — he states 22 and 27 miles away was that the other newspapers were weekly, and these city newspapers were daily.

Well, if we look and see what the City of New York did in adjoining Sullivan County, we see that even that argument is not a sincere one.

In Sullivan County Section Number 3 runs three miles east of the county seat of Monticello which publishes three weekly newspapers.

Instead of publishing in those newspapers right in the vicinity of the taking and I might add that there were newspapers of both political faiths that that made any difference to the city selection of newspapers.

They went to the far western end of the county in Callicoon, a newspaper that until its editor run for assembly, I, living in Sullivan County did not even ever hear off.

And also published in a Liberty Advisor which is a giveaway newspaper, it’s not even sold.Now, this is in the briefs.

It’s a newspaper which just contains advertisements and a few — a few of these canned stories and is not even sold for two cents.

It’s just given away.

And those of the newspapers of the City of New York used to give notice of this taking.

In these communities in Section Number 4, there were three communities, Cuddebackville, Huguenot, and — the name of the other community is just staging for the moment.

Each of these communities have post offices, firehouses, grange halls, gas stations, the city posted no notices in any of these public places but stuck them up on trees in the wood — in the middle of the winter.

This notice may look pretty here.

It’s new and it’s fresh and it’s clean, but it doesn’t quite look the same after it’s been on a tree for long ago.

Hugo L. Black:

May I ask you just one question?

Louis B. Scheinman:

Yes, Your Honor.

Hugo L. Black:

You’ve asked to enjoin this diversion?

Louis B. Scheinman:

Yes, Your Honor.

Hugo L. Black:

What does that mean?

Louis B. Scheinman:

Well, this is the only type of an action.

Actually, it could’ve been brought, that would place the question of title, squarely an issue.

Hugo L. Black:

Are you claiming anymore than just compensation?

Are you making —

Louis B. Scheinman:

No.

Hugo L. Black:

— the right to make the city —

Louis B. Scheinman:

No.

I —

Hugo L. Black:

— that they can change the stream again?

Louis B. Scheinman:

No.

Your Honor, actually as we’ve explained in the briefs and as Judge Dye recognized in his dissent, its not practical now to have injunctive relief against the City of New York.

But at the very least, the relief that could be granted if this case were remanded, reversed and remanded to the Court of Appeals, the relief as Justice Dye indicates would be that the city would have to give adequate notice to all of these people who are presently waiting with cases in lower courts throughout the state for the outcome of this case.

These people would all be given further notice.

They’d have their day in court and that’s all that matters.

How many cases —

Louis B. Scheinman:

Thank you.

— you have in pending?

Louis B. Scheinman:

Well, Mr. Lee can give Your Honor the exact answer.

I say that there are two to 300.

Mr. Lee knows precisely how many there are because claims are filed with the Law Department and he knows how many claims had been filed and rejected, I don’t.

I know this, that out of 224 mapped parcels, an examination of a certain record kept by the City of New York showed that less than half of the property owners filed their claims in time.

I also know from other cases in the lower courts, this Riley case and the Nielson case mentioned in the briefs, several of them being representative cases involving many, many properties that there are hundreds of other upland properties which are additional to the 224 mapped on the city’s maps, that a great number of which did file claims in time and a very great number of which, some of them — which claims I have — failed to file their claims in time simply because they were not aware of what had taken place in the river and incidentally —

Hugo L. Black:

Do you construe (Voice Overlap) —

Louis B. Scheinman:

— our complaint specifically is very specific on that point.

Hugo L. Black:

Do you construe your complaint as alleging and requiring you to prove in case you get a chance to prove it, that your client did not have actual notice of this diversion?

Louis B. Scheinman:

Well, it would be simple not for us to prove Your Honor.

I —

Hugo L. Black:

I say, do you construe your complaint as alleging that, are we to (Voice Overlap) —

Louis B. Scheinman:

Oh, yes.

Hugo L. Black:

— as alleging that your client did not have actual notice.

Louis B. Scheinman:

Very definitely, Your Honor.

Hugo L. Black:

And in (Voice Overlap) before the time that you filed this suit?

Louis B. Scheinman:

Yes, Your Honor, there was just no question about that.

We state it in several different respects and we also state very clearly and unequivocally that this woman had no knowledge of the city’s application of the right to diversion —

Potter Stewart:

But stated in the paragraph of the complaint?

Louis B. Scheinman:

There’s no question about it.

Potter Stewart:

As pointed out —

Louis B. Scheinman:

Yes.

Potter Stewart:

— there’s no allegation — there’s no allegation that she didn’t know what the river had been diverted.

Louis B. Scheinman:

Yes, there’s even that allegation.

Potter Stewart:

Where is that?

Louis B. Scheinman:

Well —

Potter Stewart:

I couldn’t find it in —

Louis B. Scheinman:

I believe it’s on page 10 or at the bottom of page 9 of this record.

Page 9?

Louis B. Scheinman:

Here it is, at paragraph 20 of the complaint, at the bottom of page 9, that the plaintiff has never been at any time notified in any manner that the City of New York sought to acquire the right to divert the Neversink River, just as clear as could be.

(Inaudible)

Potter Stewart:

What I meant was, there’s no showing and I’m probably — there isn’t any allegation because probably the facts are — couldn’t support an allegation.

She presumably did know that the river’s course had been changed —

Louis B. Scheinman:

It has not —

Potter Stewart:

Is that —

Louis B. Scheinman:

It had not been changed.

That’s the reason the layman cannot tell, the artificial diversion that has taken place.

Potter Stewart:

And what’s the damage to her property?

Louis B. Scheinman:

The damage is at the bathing and the fishing has been destroyed.

Potter Stewart:

I see, I —

Louis B. Scheinman:

This Neversink used to be one of the most famous trout streams.

Potter Stewart:

I see.

Louis B. Scheinman:

East of the Mississippi River.

Hugo L. Black:

And that’s recognized as a property right under the laws of New York?

Louis B. Scheinman:

No question about that, Your Honor —

Potter Stewart:

Riparian land?

Louis B. Scheinman:

The awards — the awards on these properties have run some — in the commercial properties to a hundred thousand dollars.

(Inaudible)

Earl Warren:

Very well.