179 A.D. 172 | N.Y. App. Div. | 1917
Lead Opinion
The parcels of land owned by the petitioner originally formed part of a plot owned by the Downing estate in what was the town of Westchester prior to annexation by the city of New York. In April, 1893, this plot was laid out upon a map known as Map No. 1076, filed in the register’s office. On this map was shown a street called Graham street, 50 feet wide, commencing at Morris Park ayenue and running northerly about 340 feet. Graham street was physically laid out in accordance with the map, and the petitioner’s lots, together with all lots facing upon Graham street, were sold with reference to the map, and are contiguous to and front on Graham street. This thoroughfare was subsequently used by vehicles and pedestrians as an approach to the lots fronting thereon and the roadbed was in a fit condition for travel by horses and automobiles for many years and down to the closing of the street by the city. In 1905 the Bronx Gas and Electric Company, a public service corporation having a franchise to install gas mains in the various streets of the town of Westchester, installed a gas main through Graham street, which main has remained in the bed of the street ever since for the purpose of supplying the owners of abutting property with • gas. In 1906 the petitioner’s predecessor in title procured a private sewer to be laid in the street, which was done after the issuance of a permit by the bureau of sewers of the borough of The Bronx. On October 17, 1907, the city of New York filed a map showing this territory as laid out in streets and avenues by the constituted authorities. On this map Graham street was indicated by broken lines, showing that it was not intended to be one of the public streets according to the plan then laid out. Under the provisions of chapter 1006 of the Laws of 1895, upon the filing of this city map, Graham street ceased “ to be or remain, for any purpose whatever, a street, avenue, highway, road, alley, lane or thoroughfare.” (See § 2.) Consequently the petitioner’s lot was marooned and cut off from street access to Morris Park avenue, which was continued as a public street upon the city’s plan. Thereupon the motion was made, eventuating in the order appealed from, for the commissioners of estimate and assessment to take proof and report the compensation which should-justly
The first question to determine is whether Graham street was a public street, in the sense that it had not only been dedicated and used as such but had been accepted by the city, for in such case the petitioner would clearly be entitled to compensation for the deprivation of her public easement therein and her private easement growing out of the contiguity of her lot and the street. Neither the laying of gas pipes by the public service corporation nor the building of a private sewer with the consent of the city authorities constituted an acceptance of the dedication of this street and it was not a public street in such a sense. This presents the second and real question in the case, namely, whether the closing of this thoroughfare deprived the petitioner of the easements in what was, prior to the filing of the city’s plan, Graham street, which easements were created by private grant, originating in the sale of lots according to a plan showing a street which thereafter came into physical existence but which was never accepted as a street by the city. Whatever doubt may have heretofore existed about the right to recover compensation in these proceedings for all easements extinguished by the city, whether public or private, and, if private, whether growing out of contiguity or originating in private grant, has been definitely determined, as it seems to me, by the decision of the Court of Appeals in Barber v. Woolf (216 N. Y. 7). It would serve no purpose to review this long-standing controversy, for that was done clearly and comprehensively by Chief Judge Bartlett in the Barber case, and in his opinion the cases of Matter of City of New York (Grand Boulevard) (160 App. Div. 80, 83) and Matter of Olinger (Id. 96) were criticized and their reasoning on this point involved rejected, in spite of which they continue to be cited as authorities for the proposition that in such proceedings as these a property owner can claim no damages for the extinguishment of easements originating in private grant unless the street closed was on a public street in the sense that it had either been opened as such or the city had accepted a dedication of it. The learned chief judge
In Matter of White Plains Road (N. Y. L. J., July 23, 1914) the corporation counsel claimed on the authority of the Grand Boulevard and Olinger cases that unless the fee of a closed street has vested in the city of New York the presumption is that the owners of the abutting property have easements by grant and that such easements are not extinguished by the closing of a street, each abutting owner still having the right for his own purposes to uninterrupted passage over the same and to unobstructed light and air from the particular strip. Mr. Justice Page, in a very careful opinion, concluded that any such interpretation of the law did violence to the purposes and intent of the statute. Justice Page said, after quoting the statute: “ Language more comprehensive could hardly be used to declare the intent that there should be "a uniform plan for streets, avenues and roads within the city or the district thereof for which the map or plan was filed, and that all streets, roads, highways, lanes, alleys or thoroughfares theretofore in any manner created, existing or contemplated which were not retained on the permanent plan, together with
The important consideration, as it seems to me, is not the character of a street, road or thoroughfare, but whether closing it impairs or extinguishes any private easements therein. The facts that the easements may be in a public street, or in a street never opened or both dedicated and accepted, but used as a street, or in a lane or alley or other thoroughfare, is only important as affecting the amount of damages recoverable. The right to recover depends upon whether any easement has been extinguished, either public or private, and irrespective of its origin. Whether Graham street was a public street or (in the sense that it had never been opened, or both dedicated and accepted) a private street, or was a lane or alley or any other kind of thoroughfare, it is undisputed that it was closed when the city’s map •was filed. How such closing affected the petitioner’s private
For these reasons the order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., and Davis, J., concurred; Scott and Laughlin, JJ., dissented.
Dissenting Opinion
The city of New York appeals from an order referring to the commissioners of estimate and assessment appointed in this proceeding, the claim of Mary E. Farrelly for damages resulting from the closing of Graham street in front of and adjoining property owned by said petitioner.
The only question in the case is whether or not Graham street is a public highway. If it is the petitioner is entitled to damages, for the destruction of both her public and private easements resulting from the official closing of the street. (Barber v. Woolf, 216 N. Y. 7.)
If, however, Graham street is not and never was a public street, as claimed by appellant, but merely a private street
Graham street, so called, is in that portion of the city of New York which formerly comprised the town of Westchester. Its first appearance on any map was on a private map of the Downing estate filed in the Westchester county register’s office on June 9, 1893, before the annexation of the town of Westchester to the city of New York. On this map it is shown as a cut de sac fifty feet in width commencing at Morris Park avenue and running northerly for a distance cf about 340 feet. The filing of this map, while it doubtless indicated a willingness or offer on the part of the owners of the property to dedicate the strip of land as a public street, did not serve to make it a public street. To effect that purpose an acceptance by the town of Westchester, or later by the city of New York, was necessary.
No formal acceptance by either was shown whether by way of a resolution of the proper municipal authorities, or by the filing of an official map showing said Graham street as one of the public streets of the city.
The first official map showing the territory as laid out into streets by the constituted authorities was filed in 1907. On this map the so-called Graham street was indicated by broken lines showing that it was not intended to be one of the public streets according to the plan then laid out. This certainly was hot equivalent to an acceptance of the street as a public street, or even as an acknowledgment that it ever had been a public street, but was rather a repudiation of its attempted dedication by its owners.
It certainly cannot be said, therefore, that Graham street was ever formally accepted and adopted as a public street by any official map filed in pursuance of law by the public authorities.
The petitioner claims, however, that there was a practical acceptance of the street as a public thoroughfare evidenced by the acts of certain public officials with reference thereto. It is said that the street was for many years patrolled by the police, but this of course does not indicate an acceptance by the city, for it is the duty of the police to afford protection to private as well as public property. In 1905 the town of Westchester granted an electric lighting company a permit to lay mains in various streets of said town in pursuance of which the company laid mains in said Graham street, and in 1906 the owners of the abutting property laid a private sewer in the street under the authority and supervision of the president of the borough of The Bronx. Neither of these circumstances is sufficient to indicate an acceptance by the town or city of the street as a public street. That question was not presented to the officials who granted the permits, and was not one which they were called upon or were authorized to pass upon so as to bind the city to an acceptance of the street. Other similar acts by public officers are also relied upon by petitioner, but since they all occurred after the filing of the map of 1907 by which the city formally indicated the non-acceptance of the street, they do not require further consideration.
Our conclusion is that it does not appear that Graham street was ever a public street or was closed in this proceeding. Consequently the petitioner can claim no damages as a result of the closing and her petition should have been denied.
A majority of.the court while agreeing that the private way known as Graham street was never accepted by the city, and never became in any sense a public street or way, or a
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied.
Laughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements.