82 N.Y.S. 852 | N.Y. App. Div. | 1903
This proceeding was instituted under the provisions of the former Consolidation Act (Laws of 1882, chap. 410, § 955 et seq., as amd.) to acquire title to the' land known as Tiffany street, from Longwood Avenue to Intervale avenue, in the city of New York. The respondents do not claim to own any of the fee of the land taken for the street, and the damages claimed, relate solely to that sustained by the intended grade of the street, it being shown that a deep cut would-be made in front of some of the buildings and a high fill in front of others. The buildings claimed to have been damaged, and for which awards have been made, are situate on the easterly side of Tiffany street, between One Hundred and Sixty-fifth and One Hundred and Sixty-seventh streets. It appeared upon' the hearing that on June 2,1879, there was filed by the respondents’ predecessors in title a private map, showing the land upon which these buildings were erected and an additional quantity of land adjacent thereto. This map is called in the record the Lyman Tiffany map. It shows the location of Tiffany street, but there is nothing appearing thereon to show the establishment of any grade. While reference is made in the case to other grade. maps of the twenty-third and twenty-fourth wards of the city of New York, filed in the office of the commissioner of street improvements on January 18, 1894, and in the office of the register of the city and county of New York on January 19, 1894, and in'the office-of the Secretary of State of the State of New York on January 20, 1894, yet these maps do not appear to have been introduced in evidence, nor do they appear in the present record. Only one grade map was offered in evidence, and it appears to have been filed as a public record about January 25, 1900. It embraced a much greater extent of territory than is affected by the present proceeding. On this grade map is shown the natural surface of the street, the intended regulation of the grade established at that time, and also an intended
It is contended upon the part of the city that the respondent owners are not entitled to any award of damage for the reason that it appears that the grade established in 1879 was precisely the same grade as that confirmed and referred to in 1894, and that as the buildings were constructed subsequent to this timé no award of damages can be made therefor. The respondents’ contention is that they had no public notice of the establishment of any grade until the filing of the profile map of 1900, and that as they had no notice of the intended regulations and grade the damages have been properly awarded.'
It is. readily apparent that there is much force in the contention of the owners of the buildings. The proof appearing in the present record is quite doubtful as to the existence of any proof of which the landowners were bound to take notice that the intended regulation and grade of the street was finally and absolutely fixed and determined prior to January, 1900, when the grade map finally and permanently fixing the intended regulation and grade was filed. To work an estoppel upon landowners who have constructed buildings fronting upon-the street so as to preclude them from the recovery of damages which they have sustained by reason of the changed grade of the street, the proof ought to be clear and conclusive of the existence of facts charging them with notice of the intended regulation and change of the grade.' The landowner ought to have an opportunity to make a profitable use of his land and to make improvements thereon which will be beneficial to him, and if the action of the city will deprive him of such beneficial use it is incumbent .upon it to give fair notice of the changes it contemplates
In the present case nothing was done so far as appears between 1879 and 1896, when commissioners were appointed, a period of seventeen. years; and twenty years elapsed between the claimed establishment of the grade and the filing of the final grade map. We do not think that it would be equitable to deprive-the landowners of making use of their land during this long period of time at the peril of having any improvements they might make thereon destroyed or damaged and they be left remediless. The filing of the maps showing the intended regulation and grade is not conclusive in all cases, nor ought it to be, as great injustice may be worked in particular cases. The rule governing the question upon this subject is expressed in our former decisions.
In Matter of Opening East 187th Street (supra) the question was left open as to the effect of omitting to file claims for damage at the time when the notice required they should be presented, as it was not essential to a decision in that case. The same question, is presented, however, for determination in this case and is involved herein. The commissioners appointed are required by law to esti
It follows that the order appealed from should be affirmed, with ten dollars-costs and disbursements.
O’Brien, Ingraham and McLaughlin, JJ., concurred; Patterson, J., concurred in result.
Order affirmed, with ten dollars costs and disbursements.