153 N.Y.S. 128 | N.Y. App. Div. | 1915
The commissioners reported that they had made “no award for damage to this parcel' for the reason that said buildings were erected subsequent to the establishment of the grade. ” The owner claimed damages by reason of the intended regulation of West One Hundred and Seventy-second street.
The map showing the established grade of West One Hundred and Seventy-second street was filed in the office of the register of the city and county of New York on December 17, 1895, and at about the same time in the other public offices wherein it was required by law to be filed. Thereafter, and between the fall of 1902 and the summer of 1903, no steps whatever having been taken by the city of New York to open or regulate said street, and there being no indication of any immediate purpose so to do, the owner erected the building in question upon the lot, the same being constructed upon the natural grade, and not upon the grade as indicated upon the map. This building was set back sixteen feet from the street line, the platform of the porch being ten feet and the steps thereto two feet, back from said line. The land now included in the bed of West One Hundred and Seventy-second street had been actually in use as a street for the public for many years prior to 1895. On June 29, 1911, the board of estimate and apportionment of the city of New York directed the corporation counsel to apply for the appointment of commissioners of estimate and one commissioner of assessment in proceedings to acquire title to West One Hundred and Seventy-second street, which he did by petition, verified May 8, 1912, and the commissioners were appointed May 23, 1912. Meantime, and on March 1, 1912, the
The earlier decisions were not in harmony as to the right of the owner of a building, erected after the establishment of the grade of a street (but before it was actually opened) to recover the damages done to his building by the subsequent regulation of the street. (Matter of Rogers Place, 65 App. Div. 1; Matter of Mayor [Briggs Ave.], 84 id. 312; Matter of Mayor [Tiffany Street], Id. 525; Matter of Vyse Street, 95 N. Y. Supp. 893; Matter of Parker Street, N. Y. L. J., Aug. 20, 1912.) Attention was called to these cases, and the conflict between them in People ex rel. Bennett v. Dickey (148 App. Div. 663; approved in People ex rel. Janes v. Dickey, 206 N. Y. 586). While that was the case of an award made for a change of grade, the principle therein determined is equally applicable to the case at bar, which was (following Forster v. Scott, 136 N. Y. 577) that “to restrict or limit the free use of property is equivalent to taking property, for ‘ all that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. ’ ” The court then proceeded to say (p. 666): “The actual damage is done, and the consequent loss incurred, wjien the physical change of grade takes place, and the damage should be estimated as of that time unless there are peculiar circumstances not present in this case, which would render it inequitable" so to estimate it. To hold otherwise would be in effect to hold that the damage was wrought, or at least begun, by the filing of a map showing the intended change of grade. If after such filing the owner was debarred, except at his own peril, from improving the property, his damage should, in equity, include an allowance for the loss of its use between the date of filing the map and the date of the physical
In the case at bar no question of bad faith is raised. There is no claim that the then owner improved his land by the erection of the building in question thereupon, with either knowledge or reason to believe that the city would immediately, or within a short time, actually open and regulate the street, so that his improvement was with a view to mulcting the city in damages rather than for the actual, normal, legitimate use of the property. As a matter of fact, he did not build until the city had failed for seven years to take any steps whatever to open the street or regulate it, and it was eight years more before it took steps to condemn the property required for street purposes. This made a total delay of fifteen years between the filing of the map showing the established grade and the action of the board of estimate in directing proceedings to acquire the land, and it was a year more before the corporation counsel acted and commissioners were appointed. It would be destructive of an owner’s right to the enjoyment of his property to hold that he was debarred from improving the same for such an ■unconscionable length of time save in conformity to a grade that the city had shown no disposition to actually effect. To hold that an owner, in the exercise of good faith, is entitled to damages -under such circumstances, of course goes no further than to give him the right to his actual damage, which in many cases may be a very small amount. But in any event he is entitled to make his proof of damage, which the commissioners must consider and pass upon.
The order appealed from will, therefore, be reversed, with
Ingraham, P. J., Clarice, Scott and Hotchkiss, JJ.. concurred.
Order, so far as appealed from reversed, with ten dollars costs and disbursements, the objections interposed by owner of damage parcel No. 1A sustained, and the matter of fixing damage, if any, to said parcel referred to new commissioners for action. Order to he settled on notice.