177 A.D. 361 | N.Y. App. Div. | 1917
This appeal comes here pursuant to section 446 of the charter of the city of Rochester (Laws of 1907, chap. 755), as amended by chapter 384 of the Laws of 1911.
In order to enable the New York Central and Hudson River Railroad Company to build a new station and increase its railroad facilities in connection therewith in the city of Rochester, and thereby assist in obtaining a great public improvement in such city, and in developing greater facilities for travel in, to and from such city, the common council of the city on the 26th day of April, on the 24th day of May, and on the 14th day of June, 1910, passed various ordinances. For ,the same purpose the authorities of the city of Rochester entered into certain agreements with the New York Central and Hudson River Railroad Company and the New York State Railways.
As part of the scheme for the improvement the common council discontinued the southern portion of Joiner street, and the railroad company took possession of and built upon the ground theretofore occupied by that part of the street so discontinued, and the principal question for our consideration on this appeal is whether or not awards of damages on account of such discontinuance to the owners of lots abutting upon that part of such street not discontinued, made by the commissioners appointed for that purpose and confirmed by the resolution of the common council appealed from, should stand.
The locality principally involved in the matter is that portion of the city of Rochester bounded northerly by Kelly street, easterly by Joseph avenue, southerly by Central avenue, and westerly by Clinton avenue north. The new station fronts on Central avenue. This territory which I have described is an irregular figure, Central avenue and Kelly street being about parallel to each other, the part of Central avenue in the boundary being about 400 feet in length and the part of Kelly street in the boundary being about 800 feet in length. Central avenue and Kelly street form right angles with Joseph avenue.
The motion to dismiss the appeal is denied.
The motion to add to the record certain documentary evidence to establish the status of Joiner street upon the claim that it became a street because it was laid out and designated as á street upon the map of the land through which it runs when the land was vacant land and owned by one person who, in the conveyances of the lots sold by him, described them as abutting upon the space designated as Joiner street is also denied, as such evidence would be immaterial in the view we take of the case.
Section 446 of the charter, as amended by chapter 384 of the Laws of 1911, permits us to deal with both questions of fact and questions of law on this appeal.
Sections 111 and 121 of the charter, in express terms, clothe the common council with power to discontinue streets in the city of Rochester and adequate means to that end are provided in the charter. The Legislature had the right to invest the common council with this authority. (Dillon Mun. Corp. [5th ed.] § 1160.) Section 121 of the charter is constitutional because it provides for the allowance of damages caused by such discontinuance when such damages exist under the well-known rules applicable to municipal corporations. (See, also, charter, § 453; Id. § 436 et seq. as amd. by Laws of 1911, chap. 384.) There seems to be no doubt that the ordinance passed by the common council and the discontinuance of the southerly portion of Joiner street pursuant thereto were lawful. (Weinckie v. N. Y. C. & H. R. R. R. Co., 39 N. Y. St. Repr. 584; affd. on opinion of the General Term, 133 N. Y. 656.) In that case the court, among other things, said: "The taking of land for a railroad depot is well settled to be a public purpose, and lands for that purpose may be taken by the right of eminent domain, and the rights of all abutting landowners, including those of the plaintiff, if she have any, are protected not only by this act by providing for compensation, but by the general law in the manner pre
The provisions of the charter of the city of Rochester are broad enough and full enough to authorize the common council not only to discontinue the public rights in a street, but, by reason of the provision for compensation for private rights destroyed, to terminate such private rights and close the street. We are not concerned here with claims for damages to lots abutting on that portion of the street which has been discontinued.
In the case at bar, assuming that the abutters own the fee in that portion of the street in front of their lots to the center thereof, the discontinuance in question in no manner affects or interferes with that ownership.
The abutters south of Hamburg street have a better claim for relief than those to the north, but the mere fact that their immediate access to their premises is not from two ends of a block does not entitle them to damages. Nor does the fact that their way to some parts of the city is lengthened entitle them to relief. Those of them farthest from Hamburg street are much less than 100 feet from Hamburg street, a distance less than the width of many streets. (Coster v. Mayor of Albany, 43 N. Y. 399, 414; Matter of Grade Crossing Commissioners, 201 id. 32; McCabe v. City of New York, 213 id. 468.)
Egerer v. N. Y C. & H. R. R. R. Co. (130 N. Y. 108) and Rigney v. N. Y. C. & H. R. R. R. Co. (217 id. 31) are easily distinguished from the case under consideration.
It is claimed by some of the respondents, as already appears, that they had private and peculiar easements in that part of Joiner street which has been discontinued which private easements arose from the fact that the original conveyances to those from whom they derived their title came, before the space designated as Joiner street became a public street, from a common grantor who owned the land within the boundaries of and contiguous to Joiner street, and described their lots in such conveyances as bounded on Joiner street, Let us consider this
All that was decided in this Twenty-ninth Street case was
We think there is no sound principle upon which the resolution appealed .from and the award of damages which it confirms can be sustained. We think that these claimants, especially with Hamburg street furnished for their convenience as it now exists, have sustained no actionable damages.
It follows that the resolution appealed from and the awards confirmed thereby should be vacated, set aside and held for nought, and that the claims of the respective claimants should be disallowed and dismissed, without costs.
All concurred.
Motion to dismiss, appeal denied. Motion to add to record on appeal denied. Resolution of common council and the awards confirmed thereby vacated and set aside, and the claims of the respective claimants disallowed and dismissed, but, under the circumstances, without costs.