114 N.Y.S. 565 | N.Y. App. Div. | 1909
The complaint alleges that the plaintiffs are the owners .in fee of a lot of land situated on the northerly side of Canal street, known as 243 Canal street, upon which lot there is now- erected a six-story building ; that upon the premises to the east of said lot and known as 239 and 241 Canal street there was erected a six-story building now in course of demolition; the westerly wall thereof adjoins said premises and part of said wall stands on the premises known as 243 Canal street; that since on or about the 8th day of August, 1898, until on or about the 22d day of July, 1908, the plaintiffs or their predecessors .in trust have been the owners in fee of the right or easement to insert in said westerly wall of the building 239 and 241 Canal street the beams of the six-story building now standing on said premises 243 Canal street, and to maintain such beams in said wall as long as the same shall stand ; that the beams of the building 243 Canal street are so inserted in and rest upon the said westerly walls of said building 239 and 241 Canal street; that the building 243 Canal street and the floors thereof are supported on the easterly side chiefly by the said westerly wall, and if the said westerly wall is removed the said building 243 Canal street will be without support on the easterly side thereof ; that on or about the 6th day of July, 1908, the defendants Willcox and others, constituting the Public Service Commission, by the corporation counsel for and on behalf of the city of New York, applied for the appointment of commissioners of appraisal for the purpose, among other things, of acquiring title to said premises known as 239 and 241 Canal street, including all rights and easements therein, which proceeding is now pending, and on Or about the 22d day of July, 1908, title to said
It ¡appears from the record on appeal that the board of rapid transit railroad commissioners,' on behalf of the city, entered into certain contracts for the construction of a subway known as the Brooklyn subway loop lines, extending from the Brooklyn bridge under Center street, and intended to connect the Brooklyn bridge with the new Manhattan bridge and the Williamsburg bridge.
The Public Service Commission having succeeded under the Public Service Commissions Law (Laws of 1901, chap. 429) to the powers of the board of rapid transit railroad commissioners, it became its duty to carry oñ the. work of building this subway. For that purpose the Commission, under the provisions of the Rapid Transit Act, requested the corporation counsel to institute proper proceedings to condemn the necessary real property, including a ' parcel situated at the northwest corner of Canal and Center streets^ known as 239 and 241 Canal street, which was required for a station
The petition for the appointment of commissioners of appraisal was verified on the 6th day of July, 1908.' It alleged the preliminary proceedings by the board of rapid transit railroad commissioners, establishing the route of the proposed subway, and that on the 13th of- March, 1908, the petitioner, the Public Service Commission, adopted a resolution approving and adopting three similar maps or plans of certain parcels of property required for the construction, maintenance and operation of this loop. Upon each of said maps or plans there was placed a memorandum as part thereof, clearly indicating the particular estate or estates, rights, terms, privileges, franchises or easements to be acquired or extinguished for the purpose of such construction, maintenance and operation of a rapid transit railway, in relation to each and every parcel of property shown upon said maps or plans ; that the copies were duly filed and transmitted, as required by law. It further set forth: “ The following is a general description of all of the real estate to, or in, or over, or appurtenant to which any title, interest, right, franchise, easement, term or privilege is sought to be acquired or extinguished, and of every right, franchise, easement or privilege sought to be acquired by said city for public purposes. The premises in which an estate in fee simple is to be acquired in this proceeding are three parcels of land briefly described as follows.”
Then follows a description of three parcels of land. The first parcel consists of certain lots designated as Nos. 19,16 and 14 in block 208, section 1, which taken together form a parcel of land situated on the westerly side of Center street, extending from Canal street to Howard street with a frontage on the northerly side of Canal street extending about thirty-seven feet nine inches westerly from the westerly side of Center street and with a frontage on the southerly side of Howard street extending about thirty-six feet five inches westerly from the westerly side of Center street. Included in said first parcel is the property in question, designated as lot No. 19.
The petition further sets forth as follows: “ Each lot or parcel of
The prayer of the .petition was duly granted -and an order appointing commissioners of appraisal was duly made, and the oaths of the commissioners were duly filed on the 22d of July, 1908. By section 47 of the Bapid Transit Act, chapter 4 of. the Laws of 1891, as added by chapter 752 of the Laws of 1894, and amended by chapter 519 of the Laws of 1895, it was provided-that upon the filing of the oaths of. the commissioners of appraisal, “ The said city shall be and become, seized and possessed in fee or absolute ownership of all those parcels of property, rights, terms, franchises, easements and privileges which aré in the maps or plans and memoranda referred to in section forty of this act, described as parcels of prop
It appears that on parcel 19, the property in question in this proceeding, and described as extending thirty-seven feet nine inches on Canal street, had been erected a building whose westerly wall extended two inches further to the west, and so encroached to that extent upon the property of the plaintiffs. It was in this wall that the plaintiffs claimed an easement by way of beam rights.
. It is clear that by operation of law title to this parcel of land, extending thirty-seven feet nine inches westerly from Center street, vested in the city upon the filing of the oaths of the commissioners of appraisal. The plaintiffs contend that because the intention to acquire this particular easement was not specifically set forth upon the maps or plans filed, upon the memoranda attached thereto, or
. Passing the question of the insufficiency of the complaint upon this point, we will .treat it as if properly before us. The complaint itself alleges in the 6th paragraph thereof as follows: “Upon information and belief, that in said proceeding described in paragraph Fifth hereof, application is not made to acquire title to any part of said premises known as ¡No. 243 Canal street, except to acquire such part of the easement described in paragraph Third hereof as may be imposed upon said property sought as aforesaid to be acquired by the defendant The city of ¡New York.”
That is an allegation that the said easement is sought to be acquired. But passing that, the statement in the papers in the condemnation proceedings is as clear as language can make it, that what is intended to be acquired is “ an estate in fee simple absolute,, free -from all liens or encumbrances.” There can be no doubt that the property sought to be acquired, 239 and 241'Canal street, is incumbered - by the easement which it is claimed 243 Canal street has to insert its beams in the westerly wall of 239 and 241 Canal. street-, so long as the same shall stand, and that a fee simple absolute, free from all liens and incumbrances in 239 and 241, cannot be obtained otherwise than by tlie acquirement of said easement. Fee simple absolute is the broadest term describing title to real, estate. When that is sought to be acquired the whole title is included.
The words of the rapid transit statute, specifying rights, franchises, easements or privileges, in no respect' affect the question. This statute was passed for the purpose of providing a .way for the city to procure transit facilities. The roads to be built thereunder might be surface or elevated or sub-surface roads. If elevated and on the streets of the city, the fee of property abutting upon the streets would certainly not be required; but, under the doctrine of the elevated railroad cases, the abutting property would possess easements which would have.to be acquired; and so the statute properly provided that the city authorities vested with jurisdiction should
We, therefore, hold that the language used in all the documents incident to the condemnation proceedings accurately sets forth the purpose thereof, namely, to acquire the entire title to the property in question, and that since the date of the filing of the oaths of the commissioners of appraisal that entire title has been vested in tlie city with a corresponding obligation upon the city to pay to the former owners of that property the due compensation required by law. If the plaintiffs, as owners of 243 Canal street, have a property right in the property sought to be condemned by way of a beam-right easement taken in this proceeding, they are entitled to compensation therefor. That compensation must come from the total amount paid for the acquirement of the full title to 239 and 241, heretofore burdened as the servient estate with this property right. The award takes the place of the property. As the property was burdened with the easement, so the award must answer for the extinguishment thereof. When the city takes property in fee simple, it must pay for such title. Out of that is to be carved such portions as represent the fair value of the subsidiary interests which, taken together, make up the entire estate. “The awards, therefore, represent the aggregate value of all the interests in each parcel.” (Matter of Eleventh Ave., 81 N. Y. 436.) “ It is quite apparent that, two or more persons may have an interest in land which' taken together- would constitute an ownership of the land, and whether they are entitled as tenants in common to the fee of the land, or one is the owner of the fee while the other is the owner of an estate, either for life or for years, or an easement to which the land is servient, they together are the owners of the land and are entitled to the fund which stands in place of the land according to their respective interests.” (Matter of Board of Street Opening, 27 App. Div. 265.)
Ingraham, Laughlin, Houghton and Scott, JJ., concurred.
Order reversed and injunction vacated, with costs and disbursements. Settle order on notice.