In re Pearsall Street, 135 N.Y.S. 763

In re Pearsall Street

135 N.Y.S. 763

| N.Y. Sup. Ct. | 1912

GARRETSON, J.

[1] There is no proof of title to damage parcels Nos. 61, 64, 65, 66, 87, 89, 92, 101, 108, and as to damage parcels 33, 36, 37, 44, 45, 46, and 47, the proof, so far as presented, shows that the deeds of abutting property carry only to the' side or lines of the street. All of these several parcel numbers are of land within the lines of the street. These street lines are coincident with those of Fourth street, as shown on the map of land of Francis and Eve Duryea made and filed in 1860, since which time the street has been opened as a way for all persons, owners of lots, shown on the • map and for 30 years if not for the entire period by the public generally. The Debevoise map and the incidents since its filing present a similar state of facts relative to that part of the street shown thereon; the land in the street being subject to the easements of necessary access appurtenant to all of the lots laid down on the maps. The market value of the fee thereof is not more than the nominal sum awarded, and the fact that the' street, when opened under the proceeding, will not affect the abutting owner’s access to his premises, and will detract nothing from the practical value of what he had by virtue of its easements of access, requires, no greater award to him by way of compensation. Matter of City of New York, Decatur Street, 196 N. Y. 286, 89 N. E. 829.

[2] It also appears that several years ago the city or its predecessor constructed a sewer and laid a water main in the street. This, under the circumstances, may be regarded as an acceptance of a dedication tendered by the filing of the Duryea and Debevoise maps. Matter of Hunter, 163 N. Y. 542, 57 N. E. 735, 79 Am. St. Rep. 616.

[3] It will be presumed that these street improvements were made by public authority. It would seem to follow that the city has control of the street by dedication and by acceptance thereof before the proceeding was begun, and, even though this be not free from doubt, the instituting of this proceeding is an acceptance.

*765[4] The fences, stoops, and so much of the house front as are within the street line are mere encroachments for the existence of which the abutters are alone responsible and for the removal of which they are not entitled to compensation. Matter of the Department of Parks, 53 Hun, 556, 6 N. Y. Supp. 779; Bridges v. Wyckoff, 67 N. Y. 130.

[5] The commissioners having had the advantage of a view of the premises, and having heard the advisory testimony of expert witnesses, and it not being shown that the commissioners have adopted an erroneous principle or proceeded upon an erroneous theory, the award should not be disturbed.

The motion to confirm the report of the commissioners is granted.