153 A.D. 164 | N.Y. App. Div. | 1912
This proceeding was instituted by the city of New York to acquire the lands necessary to lay out a new avenue 60 feet in width from the northerly line of West One Hundred and Seventy-seventh street to a point about 434 feet north of the northerly line of West One Hundred and Eighty-first street, between Fort Washington and Haven avenues. The respondents severally owned parcels of land fronting on Northern avenue, some distance north of West One Hundred and Eighty-first street, and they have separate easements by grant over part of the premises acquired by this proceeding south of West One Hundred and Eighty-first street. These easements had their origin in conveyances made to the respondents’ predecessors in title by John A. Haven and G-urdon Buck, who,
West One Hundred and Eighty-first street was opened by the city from Broadway to Eiverside drive in 1897; West One Hundred and Eightieth street from Broadway to Buena Vista avenue (which includes part of Southern avenue) in 1904; and Northern avenue,, which, as already stated, embraces within its lines the Northern avenue laid out on said map by the original owners, from West One Hundred and Eighty-first street to a point about 770 feet north of said street in 1905. Ingress and egress to and from the lands owned by the respondents to Broadway — formerly Kingsbridge road — is now had over Northern avenue and West One Hundred and Eighty-first street. At the time this proceeding was instituted, the lands within the lines of the new avenue in the block between West One Hundred and Eightieth street and West' One Hundred and Eighty-first street were, so far as they embraced said old road, subject to the easements of the grantees of said John A. Haven and Grurdon Buck throughout this tract of land, but to the north, West One Hundred and- Eighty-first street was open and improved and to the south, West One Hundred and Eightieth street was likewise open and improved as a public street. In acquiring the land for West One Hundred and Eighty-first street awards were made to unknown owners
The Fort Washington Syndicate owns the fee of that part of the land acquired, in which the respondents have easements, and it has been awarded only the value of the fee subject to the easements. It now asks that the report of the commissioners of estimate should be sent back to them, or to new commissioners, with directions to make awards for said fee unburdened with any easements.
The Order of the Special Term, however, instead of confirming the awards to the fee owner, referred the report back to
The learned counsel for the city contends that the report should have been confirmed with respect to the awards to the owner of the fee, and we agree with that contention. The theory on which the owner of the fee bases this claim is that the easements have been extinguished by the condemnation of the easements in another part of the road as stated. That may have affected the valúe of the easements, but I fail to see any theory upon which it can be said that they have been extinguished or have reverted to the owner of the fee. The respondents . claimed before the commissioners that they were entitled to awards representing the value of the easements, which was excluded from the awards made to the owner of the fee. The commissioners ruled otherwise, but the learned justice at Special Term sustained this contention, and on that ground referred the matter back to the commissioners. The learned counsel for the city contends that the respondents are not entitled to awards, for the reason that their easements were merged in the title acquired by the city which was the fee in trust for street purposes. We have examined the authorities cited in support of that contention, and are of opinion that they do not sustain it. One of these authorities (Matter of Adams, 141 N. Y. 297) held that where land was conveyed subject to a private easement for highway purposes, and the public easement in the land was subsequently taken for street purposes, the grantor was only entitled to an award for the value of the public easement taken, less the value of the private easement created by his conveyance, and that such damages were only nominal, for the reason stated by Judge Finch in Matter of Village of Olean v. Steyner (135 N. Y. 341) as follows: “The real burden is in no manner increased by absorbing the private in the public right, or substituting the latter in the room and stead of the former, since as bur
I am of opinion, however, that the private easements of the respondents are not, and could not be acquired in this proceeding, which is merely to cut off such property rights and interests as preclude the general public from enjoying a right of way over the land in question similar to that enjoyed by the respondents, and from improving and maintaining it as an open public avenue. It is not essential to the enjoyment of the public rights sought to be acquired that the private easements of respondents be condemned. The city has not acquired the fee simple absolute. It may not build upon the land or appropriate it to any use inconsistent with its use for public street purposes. The city will improve and look after the avenue as it
In Matter of Mayor (Vanderbilt Ave.) (95 App. Div. 533), followed in Matter of Mayor (Vanderbilt Ave.) (119 id. 882; affd., 189 N. Y. 551), it was distinctly held by this court that it was the intention of the Legislature, by the provisions of said chapter 1006 of the Laws of 1895, to authorize the condemnation and extinguishment of all easements, both public and private, that is to say, the rights of the abutting owner, merely by virtue of his ownership, on a public street (See Lahr v. Met. El. R. Co., 104 N. Y. 268, and Holloway v. Southmayd, supra), and any easement he might have by private grant, when a public street was discontinued and closed, and this ruling was emphasized by a dissenting opinion by Mr. Justice Ingraham on the first appeal to this court, and a dissenting opinion by him on the second appeal concurred in by Mr. Justice Clarke. In that case the award was made for closing the avenue to an abutting owner who did not own the fee of the street, and solely for a private easement by grant to use the street for ingress and egress. This court decided that the Statute of Limitations had run against the abutting owner’s claim for damages on account of the discontinuance of the public easement, but had not run against a claim for damages for his private easements by grant which the Legislature subsequently by virtue of said statute, as we construed it, declared extinguished and authorized damages therefor. The order of this court, remitting the matter to the commissioners to make the award, contains the following: “Ordered and Adjudged that the order appealed from be modified by denying the motion of the appellant so far as it relates to any damages which she lost by the discontinuance of the said street as a public highway, but granting it as- to damages which she may have sustained by the destruction of her private easements, and as so modified, the said order is affirmed without costs.”
The report of the commissioners, showing the basis upon
The Court of Appeals affirmed the order confirming that . award without opinion. That decision is cited in the later decision of Johnson & Co. v. Cox (supra) as if it related to easements of light, air and access incident to ownership of land abutting on a public street, which was not the case, and while it is to be presumed that if it had been intended to overrule the earlier case, it would have been so stated in the opinion, yet it is difficult to perceive the theory upon which a private easement by grant, existing at.the time a street is closed, is extinguished if it exists as to that part of the closed street which is directly in front of the lands to which it is appurtenant, but not, if the abutting owner owns the fee in front of his land and has a private easement over the rest of the street,, which is closed. .In Matter of Mayor, etc. (Walton Avenue) (supra), we construed the decision of the Court of Appeals in Matter of Mayor (Vanderbilt Avenue) (supra), as authoritatively adjudicating that all easements, public and private, are extinguished when a street is closed pursuant to the provisions of said chapter 1006 of the Laws of 1895. Assuming that those decisions are to be deemed to be consistent, and both stand as the law, then it appears that the Court of Appeals has drawn a distinction between private easements owned by an abutting owner, immediately in front of or adjacent to his premises, in a public street, and those owned by him in other parts of the street when he happens to own the fee in the public street in front of his premises, and that the former are extinguished when the street is closed, but the latter are not. However this may be, it seems to me quite clear that if the private easements of an owner abutting on a public street closed,- in other parts of the street than those directly in front of his premises are not extinguished when
Two parcels not affected by the easements are owned by the Fort Washington Syndicate, and the awards made therefor have likewise been returned to the commissioners. No reason for not confirming these awards is disclosed by the record, and no argument has been made with respect thereto.
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion to confirm the report of the commissioners granted, with ten dollars costs.
Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to confirm report granted, with ten dollars costs.