116 N.Y.S. 471 | N.Y. App. Div. | 1909
Lead Opinion
On the 18th day of March, 1897, an order was duly made and entered appointing commissioners of estimate and assessment in proceedings for the opening and laying out of Walton avenue from East One Hundred and Sixty-seventh street to Tremont avenue. Thereafter, from time to time, orders were made on the application of property owners or of persons claiming to be interested in premises alleged to have been damaged by the discontinuance of certain streets in the vicinity of Walton avenue, appointing the same commissioners as commissioners to ascertain and determine the compensation to be awarded to the respective petitioners and to report the same to the court, pursuant to the provisions of section 14 of chapter 1006 of the Laws of 1895. The commissioners heard their claims and filed a special report on the 5th day of Decern
It is advisable to consider at the outset the statute under which Walton avenue was laid out and the streets are claimed to have been discontinued, and the proceedings for ascertaining the damages sustained by closing the streets have been instituted.
Section 9 of the final maps of the twenty-third and twenty-fourth wards of the city of Mew York was duly filed in the various offices required by law on the 2d day of Movember, 1895. This map was validated by chapter 712 of the Laws of 1896. (See Matter of Mayor, etc., of N. Y., 166 N. Y. 495, 503.) It had been prepared pursuant to the provisions of chapter 545 of the Laws of 1890, as amended. By this map part of Walton avenue, described in this proceeding, was laid out as a new proposed avenue. On the 12th day of June, 1895, prior to the filing of the map, chapter 1006 of the Laws of that year became of force. That act in form was general, and applied to the discontinuance and. closing of streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than 1,250,000 inhabitants, but inasmuch as the city of Mew York was the only city having the population specified, its immediate application was to the city of Mew York only. The 1st section of the act authorized the local authorities of the city, in the manner therein provided, to discontinue “such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity, in the judgment of such local authorities, requires the discontinuance thereof in whole or in part. The local authorities referred to in
“ § 2. The local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues and roads in any such city or district thereof, and to make and file a map or plan showing the streets, avenues and roads so laid out, opened, altered, extended or improved, shall, upon any map or plan so made and filed by them, designate only the streets, avenues and roads which they may determine to so lay out, open, alter, extend or otherwise improve as the permanent streets, avenues and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes and thoroughfares which they may determine to discontinue or close. They shall also upon said map designate the public parks, parkways, squares, places and other public ways which they may determine to lay out and establish. "Upon and after the filing of such map the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, highways, alleys, lanes and thoroughfares theretofore laid out, dedicated or established, not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain for any purpose whatever a street, avenue, highway, road, alley, lane or thoroughfare, and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used. But in all cases where any such street, avenue, road, highway, lane, alley or thoroughfare is at the time of the filing of such permanent map or plan actually open and in public use, such parts or portions thereof as are included within the boundaries of any square or plot of ground
It must be now regarded as the settled construction of this statute that the Legislature intended to provide, not only for the destruction of public easements, but of private easements in the discontinued streets as well. (Matter of Mayor, Vanderbilt Ave., 95 App. Div. 533; S. C., 119 id. 882; affd., 189 N. Y. 551.) Said section 9 of the final maps of the twenty-third and twenty-fourth wards continued Jeróme avenue as it then existed and laid out Walton avenue, running parallel therewith about 450 feet southerly therefrom, and laid out Townsend avenue between them and parallel with them from East One Hundred and Seventieth street continuing beyond East One Hundred and Seventy-fourth street. It also laid out, some distance to the south of Walton avenue, a grand boulevard and con
The learned counsel for the city further contends, as already observed, that Seventh and Eighth avenues and Walnut street were not public streets. It is not claimed that the city ever acquired title to the streets. The theory of the respondents is that they
“ Map or plan with field notes and explanatory remarks, showing the location, width, windings, courses and classification of streets, roads and avenues and public parks or places within that part of the Twenty-fourth and adjoining part of the Twenty-third Ward of the City of Mew York, bounded on the west by Jerome or Central Avenue, on the north by Woodlawn Cemetery and north side of Pelham Avenue, on the east by the Mew York and Harlem Bail-road, Hoffman Street, Fordham and Third Avenues, and on the south by 161st Street in Morrisania, designated The Central District, as laid out and classified and discontinued and closed by the Com
“Dated New York, April Vlth, 1878.
“ (Signed) E. B. Y AN WINKLE,
“ Topographical Engineer.
“(Signed) Julius Munckwitz,
“ Superintending Architects
Extract from field notes and explanatory remarks:
“ The Streets, Eoads and Avenues laid out by the Commissioners of the Department of Public Parks, * * * are indicated by red color, the sidelines thereof by full red lines, and the widths of the same by red figures.
“ The Eoads and portions of Eoads which are discontinued and closed by said Commissioners are indicated by india ink shading.
“The Streets which are designated on this map * * * as streets of the first, second and third class are indicated by the Eoman Numerals, I, II, III respectively.
“ Existing streets, roads and avenues and the names by which they have heretofore been known are indicated by black lines and letters.
“ Filed in the Department of Public Parks, February 21st, 1879. Filed in the office of Eegister of the City of New York, February 28th, 1879.
“ D. POETEE LOED, Acting Secretary, D. P. PS
Said chapter 604 of the Laws of 1874 authorized the commissioners of the department of public parks to lay out, survey and monument streets, roads and avenues in that part of the city embracing this territory, and section 3 thereof provides as follows:
“ The maps, plans and profiles of the said commissioners of the department of public parks, made and certified to as hereinbefore provided, shall be final and conclusive as to the location, width and grades of the streets, avenues and roads, public squares and places exhibited on such maps, plans and profiles, as well in respect to the mayor, aldermen and commonalty of the city of New York, as in respect to the owners and occupants of lands, tenements and hereditaments within the boundaries aforesaid, or affected by said streets,
The validity of this provision as a complete and final acceptance of a street theretofore dedicated and not accepted has been sustained by the courts. (Matter of Department of Public Parks, 53 Hun, 556; Matter of City of New York, Jerome Ave., No. 1, 120 App. Div. 297; Matter of Mayor, 24 id. 9.) Said section 9 of the final maps of streets in the twenty-third and twenty-fourth wards, filed on the 2d day of November, 1895, also shows these avenues and this street, but indicates that they have been closed and discontinued by that map. This evidence clearly indicates a recognition, by the city authorities of these avenues and this street and an acceptance of any dedication thereof, provided there was a sufficient dedication to authorize its acceptance. It was held in Matter of Department of Public Paries {supra) that where the park commissioners in 1877 filed a map adopting the lines of a certain street theretofore laid out on a map made and filed by a private owner of the property, their act constituted an acceptance of the dedication thus attempted to be made, and that even the prior occupation of a portion of the street by a grantee of the owner who had made the dedication was ineffectual to revoke the dedication before such acceptance because the revocation could only be made by the grantor. Of course a dedication by the owner and an acceptance by the city authorities did not vest the fee in the city, and the fact that authority was conferred to acquire the fee to streets shown on the map of the department of public parks in 1879 does not militate against the dedication and acceptance of the easements for public street purposes. The city offered no evidence on the question of user of those avenues or of this street. The property owners gave evidence tending to show that the avenues and street in question, and in fact all of the avenues and streets on the maps of the village of Mt. Eden, were open and in use by the public for a long period of years prior to 1893. One of the city’s experts testified that he had been familiar with this section for upwards of fifty years, and after testifying specifically that Seventh avenue had been opened and used by the public for over thirty-five years prior to 1902 and had been improved by the town authorities of West Farms, said that his testimony with respect to that avenue would apply to all of the streets laid down on said maps of the village of Mt. Eden. One of the property
The city further claims that the commissioners erred in their awards with respect to some of the parcels which are partly within this block and partly within the lines of one of the new streets bounding it as laid out on said section 9 of the final maps of the twenty-third and twenty-fourth wards. As already observed, neither Townsend avenue nor East One Hundred and Seventy-second street, which bound the block on two sides, was a public street when said maps were filed. The city showed that by proceedings duly had under the charter, the title to Townsend avenue vested in the city for public street purposes on the 6th day of September, 1897, and East One Hundred and Seventy-second street on the 4th day of December, 1897, and that proceedings were duly had to determine the awards to be made to the property owners, and that the awards had been made and confirmed. The city gave evidence tending to show that in those proceedings the owners of those parcels who now claim damages upon the theory that Seventh and Eighth avenues and Walnut street were closed on the 2d day of November, 1895, gave evidence of their damages to the parcels, part of which were taken in the proceedings to open Townsend avenue and East One Hundred and Seventy-second street upon the theory that Seventh and Eighth avenues and Walnut street were then open and that they had valuable easements therein of light, air and access. After receiving this evidence the commissioners in this proceeding refused to consider the basis upon which the other commissioners made their awards. They say with respect to this in their report: “We have
In determining the just compensation to be awarded to the owners of lands, the damage parcels show the parcels as they- stood at the time the maps were filed which closed the avenues and street within the boundaries of this block. After the commencement of this proceeding and before the awards in question were made, the city acquired parts of some of these parcels for Townsend avenue and for One Hundred and Seventy-second street, but notwithstand
If it were not for other special objections to some of the damage parcels in this block, which will be considered presently, these views would lead to an affirmance as to all parcels within the block in .question which embraces parcels Nos. 24, 28, 29, 30 and 34. There are no further objections to the awards for parcels Nos. 28 and 30.
An award was made for damage parcel 29 to Henry D. Clark as owner. Clark is appellant with respect to an award made for another parcel not in this block and is respondent with respect to this and one other appeal. The learned counsel for the city asserts
An award of $9,040 was made for damage parcel 24 in this block to Henry Edelmuth, as sole executor of Adolph Edelmuth. The objections filed to the report of the commissioners by the city relate to all of the parcels for which awards were made. The learned counsel for the city, in his statement of the facts, questions the jurisdiction of the commissioners to make an award for a greater sum than the amount specified in the claim filed with the comptroller, but a separate point presenting this question is not contained in his brief. The learned counsel for respondent Edelmuth, however, assumes that this question would be presented, and concedes that the claim filed with the comptroller, which is not in the record, was for $2,000 only. The commissionez’s, in their report with respect to this award, say: “We have determined that Henry E. Edelmuth, as the executor of Adolph Edelmuth, deceased, is entitled to the award made for Damage Parcel Mo. 24, notwithstanding that said award is greater than the amount specified in the claizn filed by hizn, as the claim filed by sozne of the parties who are beneficially interested in this award gave sufficient notice.” It is to be observed that the executor is acting in a representative capacity, and it is urged that the innocent beneficiaries should not in any event suffer on account of his failure to specify a claim for an adequate amount of damages. The statutory provision with respect to filing claizns is contained in section 5 of said chapter 1006 of the Laws of 1895. It is not entirely clear, in my opinion, that
It is, however, I think, unnecessary to consider this question further, for assuming that it was necessary that the claim should be filed, I am of opinion that the claim filed was sufficient to authorize the commissioners to award the actual damages. The provision of section 5 with respect to filing claims is as follows: “ Provided, however, that within six years after the filing of such map any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller of such city a written statement or claim for compensation, and a request that such proceeding be instituted for the ascertainment and
Eighth avenue southerly of Jerome avenue was a cul de sac only a few hundred feet in length. The outlet to Jerome avenue was through this new block, through which, it became legally closed by the filing of the map on the 2d of November, 1895, as has been shown. It ends opposite damage parcel 32, just southeast of the new Townsend avenue, as shown on said map. Damage parcels 32 and 33 are not in the block in question but both front on Eighth avenue just beyond it. Their only outlet was through Eighth avenue northerly to Jerome avenue. This outlet became legally closed through the block within which streets became, according to the ruling already made herein, legally closed on the 2d day of November, 1895. The claims with respect to these two parcels, while not falling within the letter of the statute, fall within the fair intent and meaning thereof, because the part of Eighth avenue which remained open in front of these parcels was of no value as a means of ingress or egress to or from these parcels. I am of opinion that this construction will best accord with the legislative intent and will be the' most practicable. The only other construction that might be given is that Eighth avenue within the block became closed as to property owners within the block, but not as to other property owners. That would doubtless be a literal construction of the statute, but it would thwart the purpose of the Legislature in declaring that the part of the streets legally closed might be inclosed by the owners of the fee. I am of opinion that it was intended to terminate all public and private easements in that part of the street declared to be closed and not merely to terminate those easements as to property owners within the same block and leave them outstanding as to other property owners, which would require that the streets remain open indefinitely, for there is no time limited within which the city must open the new streets, upon the opening of which only on this construction would the easements of these claimants in Eighth avenue
The claimants for the damages to damage parcels 32 and 34, the latter parcel being partly within the block in question, were Louis Brass and Emilie Hamann. An ejectment action was pending in the Supreme Court between these parties. The heirs of Emilie Hamann duly filed a claim and obtained an order to have their damages ascertained. The commissioners directed the payment of an award equal to two-thirds of the total amount of damages to these heirs, provided they be successful in the ejectment suit, and made no award as to the remaining one-third interest, apparently upon the theory that the other heirs entitled thereto were not before the commissioners; but in the event that the heirs should be unsuccessful in the ejectment suit, they awarded the payment of the total damages to Louis Brass, and with respect to parcel 34 the commissioners made an award of two-thirds of the damages to said heirs, provided they should be successful in the ejectment suit and made no award in the event they should be unsuccessful. This was upon the theory, as stated by the commissioners, that Louis Brass had obtained an order for the assessment of his damages with respect to parcel 32 but not with respect to parcel 34. Louis Brass does not appeal nor does he even appear as to these parcels. The learned counsel for the city contends that no order was obtained as to either parcel and none is found in the record. The only jurisdiction which the commissioners have to make an award is by an order obtained pursuant to the provisions
The city also claims that the commissioners erred with respect to the award made to John J. Schaclit for damage parcel 39, shown on damage map No. 4. This parcel is on section 14 of the final maps of the twenty-third and twenty-fourth wards, filed in the office of the register of the city of New York on the 17th day of December, 1895, which was made pursuant to the same authority as section 9 of the final maps already considered. The damages are claimed on account of the closing of Punett street, which was not a street shown on either map of the village of Mt. Eden. This map indicated the former existence of Punett street within the block bounded by Jerome avenue, Tremont avenue, Walton avenue and East One Hundred and Seventy-seventh street, and shows that it was intended to be closed. Not only was this block bounded by Jprome avenue, but this parcel had a frontage on Jerome avenue and the claimant ■ owned the fee of Punett street. The award was made upon the basis that Punett street was an open public street and was closed by the filing of the map on account of the fact that Jerome avenue was retained as it previously existed; but the damages were awarded not as of December 17, 1895, when section 14 of the final maps was filed, but erroneously as of November 2, 1895, when section 9, which did not embrace these lands, was filed. The city, however, makes no point with respect to this. The observations already made show that Punett street, if it existed as a public street, was closed by the filing of the map on account of the fact that the block was bounded by Jerome avenue. A serious question is here presented with respect to whether Punett street was a public street. The claimant Schaclit took title to a plot of ground on the northeast corner of Jerome avenue and Waverly street in 1886, having a frontage of about 254 feet on Jerome avenue and 346 feet on Waverly street, extending in depth on the easterly line about 243 feet and on the northerly line about 283 feet. On the map filed by the department of public parks in 1879, to which reference has
It is quite clear that the plotting of Punett street as a new street , on the map filed by the park department affected no right, title or interest of the owner. Down to that time there had been no attempted dedication of those lands as a public street and there was nothing for the public authorities to accept.' As already observed, the map was prepared upon the theory that this was to be laid out as a new street and not upon the theory that there was a dedicated street to be accepted. Assuming that the acts of the owner thereafter indicated an intention on his part to dedicate the street, it would seem that it would require some further act of the public authorities accepting the same. There being no evidence that the map prepared by the owner with reference to which he sold his land was filed so that it became a public record, it is doubtful whether he would have been estopped from claiming full value for the land had the city instituted condemnation proceedings. In view of the fact that the alleged street was merely a cul de sac and led only to these two places of business, the evidence with respect to the use of the street by the public is too meagre to constitute an acceptance. The evidence perhaps gives rise to the inference that the men who worked on the street were employees of the city, but it is not entirely clear that the work they did was for the purpose of keeping the street in repair for public travel, and some of it, at least, indicates that they may have been trespassers and that their object was merely to open the gutters to enable the waters to run from the public street.- In any event, it was not such as to give rise to a presumption that it was authorized by the city. If, upon a rehearing, it should be established that this was a public street, it is to be borne in mind that the claimant at the time it was closed owned the fee, and it would seem that his damages should be assessed upon the basis of the extinguishment of the public ease-
All of the other awards were made for parcels within blocks shown on section 9 of the final maps of the twenty-third and twenty-fourth wards, wholly bounded by new streets and avenues which had neither been dedicated nor acquired by the city nor were in use as public streets at the time of the filing of said map. In each instance the commissioners have proceeded upon the theory that the streets which were intended to be closed and discontinued by this map became legally closed and discontinued when title to the first street or avenue ■ bounding the block in whole or in part vested in the city, and in no instance is there any evidence that such street had been actually physically opened for public use. The city contends that the commissioners erred in ruling that the streets became legally closed, and that the right to damages accrued to the owners upon title vesting in the city to one of the new streets bounding the block in part. I am of opinion that this point taken by the learned counsel for the city should be sustained. Although, as already observed, the Legislature has not by section 2 of the act of 1895 provided in all cases that an open existing street was not to be closed until the property owner should be afforded access to his premises through a new street, yet, to the extent that an attempt has been made in this direction, it is upon that theory. It was evidently intended that streets then in use should not be discontinued until at least one street bounding the block should be opened for public use. This view was expressed by Mr. Justice Scott in Johnson & Co. v. Cox (42 Misc. Rep. 301), which was cited with approval by this court in Matter of City of New York, Jerome Avenue (120 App. Div. 201). Our decision in the last-mentioned case was modified by the Court of Appeals and affirmed. That court, however, agreed with our construction of the statute in this regard, and squarely held that the statute has reference to actual physical opening of the new street. (Matter of City of New York, 192 N. Y. 459.) All of the other claimants, therefore, at the time of presenting their claims still retained the same right to use the streets which are to be discontinued that they theretofore enjoyed, and their claims were prematurely filed before any right of damages had accrued. With
It follows, therefore, that the order in so far as it confirms the report of the commissioners as to awards for damage parcels Nos. 24, 28, 30, 33 and 34 should be affirmed, with costs to respondents separately appearing, and with respect to the awards made-for damage parcel 32, other than to Louis Brass, it should be affirmed, with costs to respondents, and in so far as an award is made to Louis Brass, it is reversed, without costs, and with respect to the award for damage parcel 39, and with respect to all other awards, it should be reversed, without costs, and the matter referred back to the commissioners for a rehearing, or to revise their report, both as to awards and assessments of benefits, but the order is to he settled on notice, and the direction with respect to referring it back to the commissioners may then be further considered if necessary.
McLaughlin and Houghton, JJ., concurred; Ingraham, J., dissented, in part.
Dissenting Opinion
The city of New York instituted this proceeding to acquire title to the real property necessary for the opening of Walton avenue from One Hundred and Sixty-seventh street to Tremont avenue in the city of New York. While that proceeding was pending the owners of certain real property applied to the court to have commissioners appointed in this proceeding to determine the damage caused to certain property owned by them in consequence of the discontinuance of certain streets and avenues upon which their property abutted. The commissioners of estimate and assessment made a report awarding various sums of money to the owners of property abutting on such closed and discontinued streets, and from the order confirming their report the city of New York appeals.
The question is again presented as to the construction to be given to the provisions of chapter 1006 of the Laws of 1895. It must be
The brief filed on behalf of the city asked to have determined the question as to when these streets ceased to be or remain for any purpose whatever a street or avenue. Section 2 of the act provides that: “ Upon and after the filing of such map the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues, roads, * * * theretofore laid out, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain, for any pur
As shown upon the permanent plan of the city there was a block or plot of ground bounded on the west by Townsend avenue, on the east by Walton avenue, on the south by One Hundred and Seventy-second street, and on the north by Belmont street. Across this plot of ground diagonally there ran certain old streets which were not shown upon the map and which were discontinued, known as Sixth avenue, Seventh avenue and Walnut street. (Matter of Mayor, 28 App. Div. 143 ; 157 N. Y. 409.) For the closing of these three streets damages have been awarded, some of which are objected to by the city. The owners of certain property within the bed of Townsend avenue as laid out on this map have been awarded damages caused by the closing of the streets not laid out on the map which intersected this block. In this I think the commissioners were wrong, for at most the owners of lots included in Townsend avenue, which was laid out on the map, were entitled to merely nominal damages. Townsend avenue had been laid out as a public street. So much of the bed of the discontinued street as was included within the boundaries of Townsend avenue', the continued or new street, remained a public street. Before it could be appropriated for that purpose it would be necessary for the city to acquire the title of the property in the street. But the discontinuance of the discontinued street would certainly cause no damage to that property. Assuming that in the block bounded by Townsend avenue, Jerome avenue, One Hundred and Seventy-second street and Belmont street the discontinued streets were closed upon the tiling of- the map because of the fact that Jerome avenue was an open existing street at that time, none of the other roads through the block to the south were closed by the filing of the map or until a street was opened which bounded upon that block, and when the city acquired title to the bed of Townsend avenue and appropriated the property ®f these petitioners in the bed of that avenue, whatever title or interest the owners of that property then had, which would include any right of damages against the city of New York, was acquired by that proceeding. In awarding damages for that property, if the commissioners held that
The next point taken by the city which it is necessary to discuss is as to Pnnett street. I think it is entirely immaterial whether Punett street was ever dedicated as a public street. It had been actually used as a street, and persons who had bought property abutting on the street had an easement which was discontinued by the filing of the map. It had been an actual, open and existing street that was under the act of 1895 closed and discontinued as a street for all purposes, and the owners of abutting property were entitled to compensation for the damages sustained thereby. Whether it was a public or private road the owners of abutting property were entitled to be paid by the city of New York the damages that they sustained because of its discontinuance as such a road. The act so declares and the Court of Appeals has held that the act is constitutional. The same principle would apply to Walton or Sheridan avenues and Eighth avenue.
I think it also clear that a claim must be filed within six years after the street is actually closed and discontinued and for all claims not filed within that time the owner is barred. It would appear, however, that an actual bona fide claim which merely by mistake contained a wrong description of the property could be amended and such mistake disregarded.
The city also complains as to an award having been made to a judgment creditor of an owner of a lot who would have been entitled
This seems to dispose of all the points raised by the city.
I concur with Mr. Justice ¡Laughlih, except as herein indicated, but I think that the case should be sent back to the commissioners to amend their report in accordance with the views here expressed.
Order as to certain awards affirmed, with costs, and as to certain awards reversed, without costs, and case remitted to commissioners for revision to the extent stated in opinion. Settle order on notice.