60 How. Pr. 264 | N.Y. Sup. Ct. | 1881
The street, which it was the purpose of these proceedings to open, was laid out and delineated upon maps filed by the commissioners appointed for that purpose under chapter 115, Laws 1807.
The legislature, at that time, anticipating the future extension and growth of the city, made provision bv this act for
The maps filed by them contain a discription of the localities of the streets, avenues and public places required to be designated by them in the exercise of the authority created by its provisions, and when the maps were filed and published, as that was required by means of that act, a record was substantially made indicating the locality of these streets, avenues and places. After that had been done, and by means of chapter 86 of the ¡Revised Laws of 1813, it was further provided that measures might be taken on the part of the city for opening and imp roving such streets as the public interests and convenience should require that to be done. But in the meantime no person was allowed to erect any building upon the lands designated as streets, avenues or public places upon the maps of the commissioners, without the assent of mayor, &c., of the city, and in case they did so, they were simply to be at liberty to remove them at their own expense when it should become necessary to open the streets, avenues, &c., and that was not to be attended with expense to the public authorities ; but the commissioners to be appointed to estimate the damages and assess the expense of opening the street, &e., were prohibited from allowing any compensation whatever for any building which, at any time subsequent to the filing of the commissioners’ maps, might be built or erected, or placed upon any such street, avenue or public place {Revised Laws
In no other way can the proper advantage of this nature of property be acquired or enjoyed by the purchaser. The object of the testator in creating this power of sale, was to secure as large a sum as might be obtained from his property and a division of it among his devisees, and whatever was necessary properly to promote that end must be included within the power created by this provision of the will. The power properly to divide and lay it out in lots and streets, was a necessary incident of the power of disposition given by the testator to his executors. They might, it is true, have sold the property as a mass, but it is evident if they had done so, that the purchaser or purchasers would have been obliged to have opened the street in order to give them the full benefit and advantage of their purchases, and for that reason so much less would have been derived from the sale of the property as the land was considered worth, which would be required to be included within the limits of the street. The executors, in the exercise of them judgment, considered that not to be a favorable disposition of the property which they sold. They chose, on the contrary, to divide it up into lots bounded upon this street themselves, with the propable expectation that in pursuing that course more money would be derived from it than by a sale of it in any other manner. This was a subject which the testator had left to be determined by the judgment of his acting executors, and in what they did they seemed to have been warranted by the authority created by the will. In making the purchase the grantees must have paid part of the purchase-price for the privilege created by the deed of having the property purchased by them bounded upon this street. The deeds, as they are required to be construed, not only conveyed the land in terms described, but in addition to
To the extent of the large awards made for the value of this property, the report of the commissioners was unauthorized and it must be disaffirmed.
The land to the east of that owned by Smith Bloomfield was known as the Schermerhorn estate ; that extended easterly across the Second avenue. The First avenue and Avenue A to the East river, and so far as that was included within the limits of the street, awards were made by the commissioners for what they appear to have considered as its value as city property. Most of this land and that adjoining it was made the subject of an action in partition, which was determined in the year 1818. That was after the commissioners had located these streets and filed their maps, as it was required to be done by the act of 1807. While the land which was made the subject of the partition was hot in its divisions bounded by these streets, reference was still made to them as streets which had been laid out and designated by the commissioners under the act of 1807, and in the course of the description which was given of the property in this vicinity, this particular street was mentioned as one of those existing in the city. It was not itself made a boundary, but one of the boundaries of a part of the property was located by a reference to its distance from Sixty-seventh street, and the property described was stated to include-streets and avenues as well as the part that was not affected by their existence.
This reference to the streets, it is true, was not sufficient to create an appropriation- o-f any portion of the estate to their construction, but without compensation; but it was a clear and distinct recognition of their existence and of the relation the other portions of the- property described,, sustained to them..
In describing the property conveyed, they began the description on the southerly side of Sixty-seventh street at the distance of 150 feet westerly from the south-westerly corner of Sixty-seventh and Second avenue, and then ran the line westerly along the south side of Sixty-seventh street eleven feet and eight inches to the land of the heirs of Smith Bloomfield. While the division made in the partition suit was not of itself sufficient to constitute an appropriation of any part of this property to the purposes of the street, that together with this deed should manifestly be attended with such an effect.
For while the partition assumed the existence of the street, this deed unequivocally adopted it as a fixed and definite boundary of the property conveyed by it. The effect of that was to entitle the grantee under the deed to insist upon the right to use this street as a public avenue for the convenient -enjoyment of the property conveyed to it. It brought the case as to this estate within the principle already mentioned and to which the westerly portion of the same street has already been subjected.
The street, as it was referred to in the partition and as it was also mentioned in this deed as one of the boundaries of the property conveyed, extended easterly upon the commissioners’ map to the East river.
It ran in a straight line through this locality, and for that
Upon this subject it has been held that when the owner sells his lots, he sells them with all the privileges and advantages appertaining to them. One of them is that the street shall be opened without payment for the land taken.
“The purchaser of every lot gives an enhanced price in consequence not only of having a street adjacent to his own lot, of having a number of streets in the vicinity of his own lot according to the plan or map by which he purchased, and if no other map is used to designate the lots sold, the commissioners’ map must control and be considered as referred to in the conveyance ” (Wymon agt. Mayor, 11 Wend., 487, 494; People agt. Brooklyn, 48 Barb., 211; De Witt agt. Ithaca, 15 Hun, 568).
It was suggested in Badeau agt. Mead (14 Barb., 328), that some of the authorities had extended this principle beyond the point at which it could properly be maintained, but it was-not intimated that it should be as far restricted as to prevent the grantee, in the conveyance bounded upon the street, from acquiring the right to have the entire street opened for his use, as it is referred to in the deed. And for these reasons the commissioners do not seem to have been justified in making any of the substantial awards which they did make for that portion of the Schermerhorn property as was included within the bounds of this street. But however this may be, they certainly were not justified in making the awards which they did for the property lying between the easterly point mentioned in the deed to the railway company and the westerly bounds of Second avenue. The effect of the executor’s deed was surely to entitle the grantee to insist upon the opening of that part of the street which was included between the easterly boundary of the land conveyed to the westerly line of Second avenue, upon the payment of mere nominal awards,
These were clearly unfounded, even if substantial awards might be made for the land included in that part of Sixty-seventh street lying easterly of Second avenue. Another partition of this property was made, in which it was declared that the reference to the streets should not be regarded as a dedication ; but that can have no effect upon the disposition which should be made of this part of the controversy, inasmuch as the original decree in partition, together with the deed after-wards made by the executors created such a dedication. It is possible that facts may be proved which should require a different disposition of the portion of the controversy relating to the street east of Second avenue; but if that can be done they have not now been made to appear as they have been disclosed. There seems to have been no legal foundation for the large awards made for that portion of the street passing over the Schermerhorn estate. It had not previously been Opened; but the right to open it seems to have been created substantially by the deed which the executors gave. If, however, these awards were not wholly unjustifiable from the proofs which have been produced upon the hearing of this application as to the value of property situated within the lines of streets laid out by the commissioners, the amounts awarded are greatly in excess of the real value of the property taken.
Allowing all proper effect for the observation and judgment of the commissioners themselves, the sums allowed by them appear largely to exceed that which would be just under the circumstances; and for that reason the report of the commissioners to this extent should not be sustained.
It appears by the conveyances which have been made since the executors’ deeds of the property fronting upon Sixty-seventh street, between Second and Third avenues, that it has been bounded substantially in the same manner as it was in their deeds by the sides of that street. There has been no
The motion to confirm the report must be denied for the reason that the public authorities surely had the right. to appropriate this portion of the property to the opening of the streets upon making a merely nominal compensation for the title taken to its owners, who held it subject to the right qf the adjacent proprietors to have it used in that way, and because the awards for the lands east of Second avenue were greatly in excess of their market value. Whether the further hearing, which will be required, shall be had by the same commissioners or others will be determined when the order shall be settled, which will be upon notice to the respective counsel appearing.