196 N.Y. 255 | NY | 1909
On July 24, 1901, a resolution was duly adopted by the board of public improvements of the city of New York requesting the corporation counsel to take the *257 necessary proceedings to acquire title to the lands required for the purpose of opening and extending Briggs avenue in the borough of The Bronx, city of New York. At that time Briggs avenue was opened from Maple avenue to White Plains road and one Edwards was the owner of certain real property situated between said Maple avenue and White Plains road on the northerly side of said Briggs avenue as then opened. The proposed opening and extension of Briggs avenue would take from the lands so owned by Edwards a strip about eighteen feet in width along and adjoining said avenue. This proceeding was commenced and on the 9th day of December, 1901, commissioners were duly appointed by an order which was thereafter and on January 17, 1902, duly filed. The commissioners duly filed their oaths and organized as a board of commissioners, and on January 28, 1902, inspected the lands sought to be condemned. They thereafter published a notice to property owners to file their claims as required by statute. They met thereafter from time to time until July 3, 1902, when the damage maps were delivered to the commissioners, and on September 17, 1902, they commenced taking testimony relating to the damages of the several persons whose real property was proposed to be taken by the proceeding, and on May 18, 1904, signed their preliminary abstract of estimate and assessment, and caused the necessary advertisement to be published.
On June 26, 1902, said Edwards sold his said real property to the appellant. The appellant had prior thereto, and on or about June 1, 1902, acquired by purchase at auction a building which had been taken by the city and compensated for in another street opening proceeding, and then located on the White Plains road, a short distance from the real property purchased of Edwards. The land so purchased of Edwards was of more than sufficient depth on which to place the building so acquired by the appellant without its extending southerly of the proposed line of Briggs avenue. The appellant, however, removed the old building to the lands purchased of Edwards and placed the front thereof on or near the old line *258
of said Briggs avenue and about eighteen feet southerly from the proposed line of Briggs avenue. He commenced placing such building thereon about December 22, 1902, and finished the work of placing the same upon said lands May 20, 1903. Thereafter and on March 10, 1904, he reconveyed to his grantor, Edwards, the northerly or rear part of the real property, which had been purchased from him as stated on June 26, 1902. The effect of reconveying such rear part of said real property was to prevent moving said building back to the proposed line of Briggs avenue without to some extent interfering with an extension erected by him in connection with said building on the rear thereof. By the preliminary report of said commissioners no award was made to the appellant for that part of the building covering the lands taken from him in this proceeding. The report was thereafter confirmed by the Supreme Court. An appeal was taken from the order of confirmation by the appellant which resulted in a reversal of the order. (Matter of City of New York [Briggs Avenue],
Some period of time necessarily elapses between the commencement of a proceeding to take property by the right of eminent domain and the order confirming the report of the commissioners appointed therein. There is always some uncertainty about the length of such intervening time and also as to the final outcome of the proceeding. The ordinary use of property sought to be condemned is not prevented by the *259
commencement of such a proceeding. This court has held that to prohibit the allowance to the owner of land taken for a street, of any amount for a building erected or placed thereon after the filing of a map of the street as prescribed by a municipal charter, imposes a restriction upon the use of land which amounts to an incumbrance and so is unconstitutional. (Forster v.Scott,
The order should be affirmed, with costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur.
Order affirmed.