111 N.Y.S. 1051 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff is the owner in fee simple of certain property lying on both sides of Twefth avenue and.extending from One Hundred and Fifty-first street to One Hundred and Fifty-second street in the borough of Manhattan, city of New York. One parcel lies between the easterly line of Twelfth avenue and the westerly line of the land occupied by the Hudson River railroad, being a strip eleven feet ten inches wide on the north side of One Hundred and Fifty-first street, two hundred and eight feet four and one-half inches long to the south side of One Hundred and Fifty-second street, where the strip is seventeen feet three and three-quarters inches wide. Immediately opposite said land,, on the westerly side of Twelfth avenue, she owns a lot, piece or parcel of land, or water lot, or vacant ground and soil under water to be made land, extending from One Hundred and Fifty-first street to One Hundred and Fifty-second street, about three hundred and forty-five feet in depth, "together with all the right of wharfage and cranage thereunto belonging or in anywise appertaining. In the papers upon which an injunction pendente lite was granted, plaintiff alleges that she
The plans and photographs exhibit the intention of the city to physically obstruct One Hundred and Fifty-first street by an impassable barrier eighteen or twenty feet high. The motion for the preliminary injunction was granted by the Special Term, the learned court stating: “ It seems to me that if it was designed, as it is stated by the defendant, that this is a part' of an extensive plan of public improvement in the section of the city referred to, then it is incumbent upon the city to take s.uch steps as are provided by law to accomplish the desired result. Chapter 1006 of the Laws of 18'95
Thereafter a motion made returnable on the 2d of July, 1906, was made by the city to dissolve the said injunction. From said motion papers it appears that all of the retaining walls and masonry have been completed on the extension of Riverside drive from One Hundred and Thirty-fifth street to One Hundred and Fifty-eighth street, except the portion of the retaining wall designed to cross the line of West One Hundred and Fifty-first street, and a short strip at the intersection of One Hundred and Fifty-fifth street and Riverside drive extension; that the local board of Washington Heights district and the board of estimate and apportionment had passed a resolution closing West One Hundred and Fifty-first street from a point distant 470 feet westerly from Broadway to the easterly line of Twelfth avenue, and also from the westerly line of Twelfth avenue to the United States bulkhead established by the Secretary of War, October, 1890. It also appeared that the corporation counsel had instituted a proceeding for the assessment of damages and compensation therein on account of the closing of West One Hundred and Fifty-first street, had made an application for the appointment of commissioners of estimate and appraisal; that the court had duly appointed such commissioners, and that said commissioners had duly qualified.
The learned corporation counsel admits that the original injunction was properly granted, but contends that after the condemnation proceedings had been begun and a method of compensation granted to the plaintiff the injunction should have been vacated.
Access to the plaintiff’s property which abutted upon this public street is taken away by the closing of the street in the manner provided by statute, and will be physically prevented by the erection of a solid stone abutment carrying the Riverside drive extension when built as contemplated. It appears upon the papers that when the abutment is built, the sole access to the plaintiff’s property will be by water. If the property to be taken, instead of an easement in the public street, were land necessary for the construction thereof, it could not be physically interfered with, nor could the title thereto vest in the city unless a sure- and certain method of obtaining due compensation were provided. In ordinary street opening proceedings it is provided by section 990 of the revised charter, chapter 466 of the Laws of 1901,
Here is a complete scheme under which just compensation is provided, not only for the land taken, but for interest upon the value thereof from the time physical interference therewith is permitted by the vesting of title up to the payment of the award.
But the matter at bar does not come under the Street Opening Act, nor is any land or tangible property of the respondent to be taken. Her easement is to be destroyed and her property affected and damaged. To accomplish this result legally the city must proceed and has proceeded under the provisions of the Street Closing Act (Laws of 1895, chap. 1006). Prior to the passage of this act the effect of the" closing of a street in the city of New York was that public easements in the street were alone extinguished. Private easements therein of the owners of abutting lands of light, air and access still remained. The object of the statute was to enable the city to destroy not only the public easements but the private easements of the abutting owners. (Matter of Mayor, 28 App.
We have lately had this act under consideration in People ex rel. Winthrop v. Delany (120 App. Div. 801; affd., 192 N. Y. 533). In that case a small strip upon one- side of Depew place .had been closed by the city authorities, and the corporation counsel having refused to institute proceedings to ascertain the damages resulting to the premises of the petitioner by said closing, we directed that a mandamus issue to compel the institution of the proceedings. We held that under the statute a right was given to the owners of property to receive compensation where lands, tenements, hereditaments and premises or rights or interests therein were taken, affected or damaged by the discontinuance or closing of any street or part thereof.
The said act provides for the appointment by the court of commissioners of estimate and assessment and their method of proceeding. They
Here then is a complete scheme for ascertaining the just compensation to be made, and adequate provision for enforcing the payment of the amount so awarded. The act does not, however, fix the time when the title shall vest or when the city may enter upon, invade or destroy the easements taken ; nor is there any provision fixing a time from which interest shall run. It would seem to follow, therefore, that title would not vest until the confirmation by the court of the report of the commissioners, and interest would only run from the date of the report as provided in the Street Opening Act, to which the Street Closing Act alludes.
While the street becomes legally closed upon the adoption of the appropriate resolutions by the board of estimate and apportionment, this does not destroy a private easement so as to permit it to be physically invaded. As the proceedings may take a considerable time, and as there seems to be no provision for compensation during the time of the running of the proceedings, to allow such a physical deprivation of rights as that contemplated here, before confirmation of the report, would result in the appropriation by the city of private property without due compensation.
Ingraham, Laughlin and Houghton, JJ., concurred.
Amd. by Laws of 1903, chap. 418, and since amd. by Laws of 1906, chap. 658.— [Rep.
Since amd. by Laws of 1906, chap. 658.— [Rep.
See § 6.— [Rep.
Concurrence Opinion
I concur in result because in this particular case the way attempted to be closed is in effect a way of necessity.
Order affirmed, with ten dollars costs and disbursements, without prejudice to the renewal of the motion upon confirmation of report.