159 N.Y.S. 478 | N.Y. App. Div. | 1916
Lead Opinion
The application to the court made on the 12th day of July, 1915, which resulted in the order from which both parties appeal, was made by Van Cortlandt pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895.
On the 2d day of November, 1895, the commissioner of street improvements of the twenty-third and twenty-fourth wards
It is recited in the order that the court found as matter of law that the Albany Post road between the points here involved became discontinued and closed and all easements therein both public and private extinguished on November 2, 1895, when said map was filed.
Van Cortlandt, individually and as executor, contends and the city concedes that the effect of the order is to require the commissioners of estimate to ascertain and determine the compensation as of the date of the filing of said final maps and profiles; but Van Cortlandt claims that this is erroneous, and he makes this claim on the ground that Albany Post road was not legally discontinued until the actual grading and improvement of Broadway adjacent to the premises on November 26, 1910; and on that theory he claims that the compensation should be ascertained and determined as of that date. On other appeals relating to the extinguishment of easements in this part of Albany Post road, in which the property owners are represented by the same counsel who represents Van Cortlandt on this appeal (Matter of City of New York
The city makes two contentions, as follows: First, that the easements appurtenant to the premises in question in Albany Post road have not yet been taken, and that the provisions of section 2 of chapter 1006 of the Laws of 1895, in so far as they provide that the mere filing of the map showing the discontinuance of a street, or the physical opening of a street shown thereon, operates as an appropriation of the private easements in the discontinued street, are unconstitutional; and that, therefore, Albany Post road was not legally closed by the mere filing of the map, even though Broadway adjacent to the premises was open and in use as a public street, and that no damages can be awarded for such easements; and, second, that if Albany Post road was legally discontinued and closed by the filing of the map and the easements extinguished, the right to compensation for the easements is barred by the failure to file a claim therefor within six years after the filing- of said map, as provided in section 5 of said act.
Said section 25 of the final maps and profiles showed Broadway as bounding said triangular tract of land on the east. It is contended in behalf of Van Cortlandt that Broadway as shown on said map does not coincide either with respect to its lines or grade with the public street then and theretofore in use as a public highway known as Broadway; but it appears by the affidavit of the engineer in charge of the topographical bureau in the office of the president of the borough of The Bronx that the lines of Broadway as shown on said map do coincide with those of the existing street by that name. The contention of Van Cortlandt that the lines of Broadway as continued on the map are not the same as the lines of the then existing street is now abandoned; but he still contends that the elevation of the continued street is not the same as the elevation of the then existing street. This contention is predi
The contention of the city that if the statute be construed as extinguishing private easements by the mere filing of the map, if there remains bounding the block an open street, it is unconstitutional, is based upon the decision of the Court of Appeals in Matter of City of New York [Grand Boulevard] (212 N. Y. 538), in which it was held that the limitation of six years for filing claims was unconstitutional, in so far at least as it applies to cases in which the discontinued street has not been physically closed, for the reason that it contains no provision for notice to the owners of the easements. Early in the application of this statute the city claimed that it was unconstitutional, but this court and the Court of Appeals held it to be constitutional (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409), and this court and the Court of Appeals have often since given force and effect to the provisions of the statute extinguishing private easements when an open street in public use remained bounding the block at the time of the filing of the map, or when a street bounding the block was thereafter opened. (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409; Matter of Mayor [Vanderbilt Ave.], 95 App. Div. 533; 119 id. 882; affd., 189 N. Y. 551; Swain v. Schonleben, 130 App. Div. 521; affd., 198 N. Y. 622; Matter of Mayor, etc. [Walton Ave., Petition of Brass], 131 App. Div. 696; affd., 197 N. Y. 518; Matter of City of New York [Walton Ave.], 145 App. Div. 855; affd., 204 N. Y. 670; Matter of Mayor, etc. [Walton Ave., Petition of Woolley], 156 App. Div. 775; affd., 209 N. Y. 571.) Moreover, if the statute were unconstitutional, it is manifest that easements could not be extinguished by proceedings thereunder; and yet after the doubt was expressed with respect to the constitutionality of the statute in the opinion of the Court of Appeals in Matter of Grand Boulevard {supra) that court with that opinion drawn to its attention took occasion to consider the scope and effect of said chapter 1006 of the Laws of 1895, for the benefit, as expressed in the opinion, of property owners, the municipal authorities and the legal profession, as if it were a valid and subsisting statute, without questioning its constitutionality, and held, reversing the decision of this court
It follows that the order should be affirmed.
Clarke, P. J., Dowling and Davis, JJ., concurred; Page, J., dissented.
Dissenting Opinion
The facts and contentions of the parties are fully stated in the opinion of Mr. Justice Laughlin. I cannot concur in the result reached by him.
The title of the bed of the Albany Post road at the place under consideration was vested in fee in the State of New York, subject to the easement of the public to travel thereupon, and to the easements of access, light and air in the abutting property owners. In this proceeding we are only concerned with the easements of the abutting owner. The Albany
By the terms of the act of 1895 (Chap. 1006), therefore, the easement of the abutting property owner was not appropriated until the Albany Post road was physically obstructed and Newton avenue opened, and compensation should be awarded in this proceeding as of that date, namely, August 1, 1914, and the order should be so modified and as modified affirmed.
We are not concerned with the question of the extinguishment of private easements arising from grants, nor in the easements in streets that have not been accepted by the public authorities, which has been the occasion of judicial differences in those cases set forth and discussed in Mr. Justice Laughlin’s opinion. Nor can any question of the constitutionality of the act of 1895 arise in this case, for the reason that the act as construed by the Court of Appeals, in so far as it relates to the cases of the character of the instant case, provides for an open and notorious appropriation of the right of access and the time limitation has not been exceeded.
Order affirmed.