114 N.E. 837 | NY | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *401
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *402 In 1895, Augustus Van Cortlandt owned land which fronted on the Albany Post road in the city of New York, and extended from Two Hundred and Fifty-third street on the south to Two Hundred and Fifty-sixth street on the north. On the official map filed by the commissioner of street improvements in November, 1895, the Albany Post road was discontinued as a highway. The Van Cortlandt lots, as shown on the map, were bounded by Broadway on the east and Newton avenue on the west. Broadway, at that time, had been opened, and was already an existing street. Its grade was changed, however, in November, 1910. The Albany Post road, though discontinued on the map, remained in use as a highway, to the same extent as before, until August, 1914. At that time Two Hundred and Fifty-fourth street was opened so as to cross the Albany Post road five feet above its grade, and thereby bar its further use. Augustus Van Cortland who owned the lots in 1895, died in 1912, and title is now held by the trustee under *406 his will. There has been no other change of ownership. In April, 1915, the petitioner, individually and as trustee, moved that commissioners of estimate report the compensation due to him because of the discontinuance of the Albany Post road, and the extinguishment of his easements therein. The application was made under chapter 1006 of the Laws of 1895.
The validity and effect of that statute are no longer open questions in this court. We have held that when a map is filed under section 2, discontinuing an existing highway, all easements, public and private alike, are thereby extinguished (Barber v. Woolf,
The next question is whether there is any statute of limitation which has barred the right to compensation. The owner of this land had no notice, actual or constructive, of the filing of the map. Until the physical invasion of his easements in 1914, he had no notice of an intent to close the existing highway. In such circumstances, the period of limitation prescribed by section 5 of the statute is inapplicable. This was held in Matter of Cityof New York (Grand Boulevard and Concourse) (
We are told that great hardship will result to the city if it is charged with interest since the appropriation in 1895. But we do not now decide that it is chargeable with interest. That question has not been certified to us. The Albany Post road, though nominally closed in 1895, was not physically closed until 1914. Up to that time the adjoining owners had the same use of it that they had in former years. It will be for the courts below to determine, when the commissioners make their report, whether the value of the beneficial use may be set off against interest on the award (Matter of Dept. of Public *408 Parks, 53 Hun, 280; Matter of Mayor, etc., of N.Y.,
Our conclusion is that the act of 1895 is constitutional in its extinguishment of private easements; that the easements were appropriated in 1895; and that the claimant's right to compensation has not been barred by limitation.
The order should be affirmed, with costs; the first question should be answered in the affirmative; the seventh and eighth should be answered in the negative; and it is unnecessary to answer the other questions.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur with CARDOZO, J.; CUDDEBACK, J., dissents.
Order affirmed. *409