58 N.Y.S. 163 | N.Y. App. Div. | 1899
This is an appeal from an order confirming the report of a referee directing the payment to the respondent of an award made to unknown owners for a plot of ground taken by the city of New York for Brook avenue. The award was made for lot No. 73 on the damage map. There are two questions presented upon this appeal: First, whether the appellant acquired an easement in lot No. 73 on the damage mapsecond, if he had acquired such an easement, whether such easement was taken in this proceeding so as to entitle him to any portion of the award made to unknown owners for the property which was taken.
The facts show that one Frank L. Eldridge owned the piece of land which included the premises owned, respectively, by the appellant and respondent, and that the lot No. 73 on the damage map in question fronted upon a public road or highway called “Railroad Avenue.” Prior to the date of the deeds hereinafter mentioned, Brook avenue had been laid out on the map of the city, but was not an existing road or street, and no steps had been taken either to condemn the property or to open the avenue for use as a public street. This being the situation, Eldridge and his wife conveyed to the appellant a lot of land,
It is a little difficult to see just what easement could be implied by this grant, under the circumstances existing at the time of the execution and delivery of the conveyance. The land conveyed to the-appellant fronted upon Railroad avenue, a public street, from which, he had access to the property conveyed. Its boundary line extended, westerly to the southeasterly line or side of a piece of land laid out as ah avenue, but which had never been opened or used as a highway or private way, and which could afford the appellant no means of access to his property. It never having been dedicated as a public street, it might never be opened as such. It is true that the city of New York had laid out an avenue to be opened in the future, when the public interest should require it, but it was not obligatory upon the-city to open this avenue. Certainly, the grantor would be under no obligation to apply his property in the bed of Brook avenue as a private-way for the benefit of the appellant. There was no highway upon which the land abutted, nor did the grantor in any way, either expressly or by implication, covenant that there would be a highway, or that he would dedicate or appropriate the lands, the title to which he reserved by his grant, for that purpose. He had taken, as the boundary line of the property conveyed, the southeasterly side or line of the land that had been marked out by the public authorities as an avenue-which in the future might be made a public street. There was no dedication of this land for street purposes by the execution of this deed. There was no implied grant that this property should be used as a highway at the time of the delivery of the deed, because there was-nothing in the conveyance which treated it as an existing street or highway, or from which it could be inferred that the parties intended that it should be dedicated or used for that purpose in the future. No-right to usé this strip of land as a street could arise until proceedings-were instituted by the city by which the road or avenue as laid out should be opened, and the fee of the property acquired for that purpose. The language used in the description would seem to indicate that the-southeasterly side or line, as laid out by the city of New York as an avenue, was selected as the boundary to the lot conveyed, but there-
Under this proceeding, the city will acquire the fee of the property taken, to be held in trust, however, for use as a public street; and, when the fee is thus acquired, neither the city nor the state has the power to devote such property to any use inconsistent with that for
“Two or more persons may have an interest in land which, taken together, would constitute an ownership of the land; and whether they are entitled as tenants in common to the fee of the land, or one is the owner of the fee while the other is the owner of an estate, either for life or for years, or an easement to which the land is servient, they together are the owners of the land, and are entitled to the fund which stands in place of the land, according to their respective interests.”
We cited in support of that proposition In re Opening of Eleventh Ave., supra, which is certainly an authority for the position taken, and that position has never, so far as we know, been seriously questioned. There was no claim in that case that the owner of the easement was not entitled to any part of the award, for the reason that his easement had not been appropriated by the proceeding.
The right to have Brook avenue remain open as a public street accrued to the defendant as an appurtenance to his abutting property when the avenue was opened under this proceeding, and there is nothing to show that the amount awarded to unknown owners included the value of the interest of the appellant in the avenue which was not taken, or that the assessment for benefit imposed upon the appellant’s abutting property was not fixed' after considering the right that said property acquired by the grant in question. The city took in this proceeding, under the statute, the fee of the land, in trust to be used as a public street. It certainly never undertook to appropriate, destroy, or interfere with any easement of the appellant’s, for he had none.
We think, therefore, that, upon the facts presented, no property of the appellant’s in this street was taken, and that the appellant is not entitled to any portion of the award made for the property which was taken. The order appealed from is therefore affirmed, with costs. All concur.