135 N.E. 825 | NY | 1922
A number of years ago the Brooklyn City Railroad Company acquired by purchase a tract of land in the borough of Queens abutting upon its right *391 of way. This land it subsequently leased to the Brooklyn Heights Railroad Company in whose possession it now is. No buildings have been erected but it is surrounded by a high fence and is covered by numerous railroad tracks. Upon these tracks the lessee stores its cars when not in use and it or some similar parcel is essential for the proper and convenient operation of the railroad.
In 1905 the city of New York instituted proceedings for the opening of a street called Juniper avenue. Commissioners were duly appointed to appraise the damages resulting and to assess the benefits. The commissioners later made a report assessing the land in question for $3,953. Their report constituted a finding of fact that this particular parcel was benefited to that extent. The report was confirmed by the Special Term but on appeal to the Appellate Division the resulting order was reversed as a matter of law upon the theory that this property being devoted by the railroad company to a public use no possible benefit could have accrued to it because of the opening of a street in the neighborhood. That court, therefore, returned the report to the commissioners, with instructions to strike out the assessment and redistribute the amount thereof upon other property within the area benefited. The commissioners again heard evidence, considered the matter and finally in obedience to these instructions made a new report in the form required of them. An order confirming this second report was made and unanimously affirmed by the Appellate Division. Then an appeal was taken to this court from such final order and also from the intermediate order of the Appellate Division reversing the original report of the commissioners. As the action of the commissioners involved a finding of fact that no benefits were received and this finding has been unanimously approved, we might not review the last order appealed from were it not for the fact that we are also *392 reviewing the first order. The question is, therefore, properly before us whether the reversal of the first order may be sustained.
Whether or not a particular parcel of land has been benefited by a particular improvement is ordinarily a question of fact. The test is not whether as now used by its present owner any advantage is received but whether its general value has been enhanced. It is immaterial whether land is owned by a railroad company or by a church or by an individual unless we can say as a matter of law that the improvement may not by any possibility increase the value of the property. If we cannot, the extent of the benefit is for the determination of the commissioners. They may consider all the circumstances. A certain parcel may be held under such a restricted title as to enjoyment or alienation that a local improvement is of less advantage to it than to another parcel of equal size owned in fee simple absolute. (Owners ofGround, etc., v. Mayor, etc., of Albany, 15 Wend. 374; Matterof Mayor, etc., of N.Y., 11 Johns. 77; People ex rel. Howlett
v. Mayor, etc., of Syracuse,
The orders of the Appellate Division and that of the Special Term must be reversed and the matter remitted to the commissioners for further consideration in accordance with this opinion, with costs in all courts.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, MCLAUGHLIN and CRANE, JJ., concur.
Orders reversed, etc. *394