135 N.E. 521 | NY | 1922
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *338 Carsten Henry Offerman, John Offerman, Theodore Offerman, Lena Maria Rasch and Anna Catherine Schmidt were the owners in fee of premises known as 503-513 Fulton street in the borough of Brooklyn, city of New York. Under the surface of Fulton street there has been constructed a subway railroad. Commissioners, appointed to assess damage to property owners occasioned by the building of this subway, awarded to these abutting owners $21,000 for the value of all vaults and vault rights taken in the proceeding. The order confirming this award has been unanimously affirmed by the Appellate Division which, however, granted leave to appeal to this court as in its opinion questions of law are involved which ought to be reviewed by us.
The question of law is whether or not these abutting owners on Fulton street had any property rights in these vaults under the highway which entitled them to compensation.
This proceeding was instituted to acquire a perpetual underground easement for rapid transit purposes in Joralemon street, Fulton street and Flatbush avenue, and was taken pursuant to the Rapid Transit Act (L. 1891, ch. 4, as amended) as it was in 1905. The board of rapid transit commissioners, appointed by the act, was authorized to acquire by condemnation any property rights, privileges, franchises and easements, whether of owners or abutters, which in the opinion of the board was necessary for the purpose of constructing and operating such subway road. The word "property" as used in the act was said to include real estate and any rights, terms and interests therein, or rights, privileges, franchises or easements of abutting owners. (Section 39.)
The excavation in front of respondents' property was begun in July of 1905 and finished in July of 1907. As constructed, the subway occupies almost all of the space in the bed of the street in front of this property which was formerly occupied by a vault used by respondents *339 in connection with their steam heating plant. This vault extended under the sidewalk on the Fulton street front nineteen (19) feet and ran along parallel to the building ninety-nine (99) feet. In it were installed four large boilers and coal bins, providing heat, light and power for the seven-story building erected on the lots.
The commissioners found, and the finding has been unanimously affirmed by the Appellate Division, that the permits under which these vaults were constructed contained the following clause: "This permit is issued subject to revocation thereof at any time hereafter by the Deputy Commissioner of Highways, when in his judgment the space occupied by said vault or any portion thereof may be required for any public improvement, or upon any violation of any of the terms or conditions hereof."
It is the claim of the owners which has been sustained by the courts below that these vault permits gave to the abutting owners an interest or privilege in Fulton street which could not be taken or extinguished without compensation. The basis for this claim, as I understand it, is: First. That the permits have not been revoked by the city so that the vaults are property or easements of the abutting owners as against the board of rapid transit commissioners or the city acting as a subway builder.Parish v. Baird (
The Offermans had no right as abutting property owners to construct vaults under the highway of Fulton street without the permission or authority of the city of Brooklyn, later merged into the city of New York. The permits granted for this purpose were revokable when the street was required for a public improvement, and did not constitute, in our judgment, a right, privilege, franchise or easement as these words are used in the Rapid Transit Act for which compensation was to be made when such were taken or destroyed. As the city of New York had the right to revoke these licenses or permits when the space was required for any public improvement, it is reasonable to expect that the legislature would be quite specific and clear in its direction to pay for the extinguishment of such privileges, if such were its intention, and not leave it to conjecture or implication. If the legislature intended that such revokable rights or privileges should be paid for in constructing a subway, it should have so stated. The city could revoke these permits and remove the vaults whenever a public improvement was undertaken which necessitated such an act. Having this right, why should the taxpayers be called upon to pay for its exercise? If the legislature had power to impose the damages incident to removing these vaults upon the city, which had specifically reserved the right to remove them without cost, the legislature *341 should have made the direction very plain. We do not consider that the word "privilege," used in the Rapid Transit Act, has reference to such revokable permits.
We are further led to this conclusion when we consider the other claim put forth by respondents in the light of our decision in Lincoln Safe Deposit Co. v. City of New York (
Much has been said in the briefs of counsel regarding the fee of Fulton street. Part of it is in the city of New York, part of it is said to be in unknown owners. We do not consider the discussion at all important. The *343
ownership of a fee in a street does not give the abutting owner the right to construct and maintain vaults in the highway. A permit or license from the municipal authorities is even then necessary. Such construction may materially interfere or endanger the use of the highway for street purposes. No vault, therefore, can be constructed, whether the abutting owner has the fee or not, without the consent of the municipal authorities. This authorization once given for reasons above stated can be withdrawn when public necessity requires the use of the street for other purposes. Whether in condemning the fee in the street such a privilege or license may be taken into consideration in determining value, we need not now determine. (See Matter ofCity of New York [Pier Old No. 49],
For the reasons here expressed, we determine that the respondents are not entitled to any damage for the destruction of their vault rights and that the orders below must be reversed and the award vacated, so far as it pertains to these vault interests, with costs to appellant in all courts.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, MCLAUGHLIN and ANDREWS, JJ., concur.
Orders reversed, etc. *344