
    In the Matter of the Application of the City of New York Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired to the Lands, Tenements and Hereditaments Required for the Opening and Extending of Tremont Avenue (One Hundred and Seventy-seventh Street), to Fort Schuyler Road, in the Twenty-fourth Ward, Borough of The Bronx, City of New York.
    (Supreme Court, New York Special Term,
    April, 1911.)
    Boundaries — Location of calls — Roads or ways as boundaries — Beginning point on side of way.
    Evidence — Presumptions — Performance of official duty.
    Highways — Change of grade — Right to compensation or liability for damages caused by change of grade — Measure of compensation.
    Upon the production of a map from a public office where it is required by statute to be filed, compliance with all statutory provisions necessary to the legality of its filing will be presumed.
    
      Where the city of New York had taken steps looking to changing the grade of a street and had destroyed the old grade in front of, at or adjoining certain premises, the owner is entitled to substantial damages for injury to buildings subsequently removed.
    The owners of the fee of a street subject to the public easement are entitled, to substantial damages when the city takes the fee and where substantial damages are awarded to some owners and only nominal damages to others the latter’s objections to the report of the commissioners should be sustained.
    But, in such a case, the owners are not entitled to consequential damages to their abutting lands not taken.
    A description of property commencing at the intersection of the northerly side of a street with a creek shows an intention to exclude the fee of the street.
    Proceeding for the opening and extension of a street.
    Archibald R. Watson, Corporation Counsel (James Regan FitzGerald, of counsel), for city of New York.
    A. C. & F. W. Hottenroth and James A. Flannery, for property owners.
   Greenbaum, J.

This is a proceeding for the opening of Tremont avenue from the Eastern boulevard to Fort Schuy • ler road. The fee of the bed of Tremont avenue at the time of the institution of these proceedings was vested in the abutting property owners, subject to a public easement acquired by the town of Westchester under chapter 720 of the Laws of 1869. The object of these proceedings is to acquire the fee of the avenue, and it further appears that as part of a contemplated plan of improvement the grade of the avenue is to be raised to some fifteen feet above its present level. Various objections have been filed to the report of the commissioners by the property owners and also on behalf of the city. These will be considered seriatim.

The objection by the city to the award made to Henry Feulner for damages to the building known as parcel la, upon the ground that such building was erected subsequently to the. time that the grade was established, must be sustained. Assuming that the map filed in 1901 was required to be advertised under- section 436 of the old charter (Laws of 1897, chap. 378), the presumption arising from the production, of the map from the public offices' where it was legally required to be -filed is that all statutory provisions necessary to the legality of its filing had been previously complied with. Matter of Mayor, Vanderbilt Ave., 96 App. Div. 525, 538.

The objection of the city to the award made for damages to the building known as parcel lb presents the question as to whether the erection of the elevated roadway over the sewer at the intersection of Avenue A and Tremont avenue constituted a change of grade authorizing the commissioners to award damages for injury to buildings under section 980 of the revised charter. The building in question was removed by the claimant in July, 1909, subsequently to the construction of the roadway by the contractor. It appears that the sewer through Avenue A at the intersection of Tremont avenue was constructed under a contract in which the contractor was required “ where the embankment obstructs or interferes with any roadway * * * to do * * * all work to put the roadways referred to in good condition and to form suitable approaches thereto.” Apparently in obedience to this provision, the contractor erected the elevated roadway in question to accommodate traffic and preserve the free use of Tremont avenue, making.suitable approaches thereto on Tremont avenue running from a point 100 feet to the west and 150 feet to the east of Avenue A. The conclusion is irresistible that the sewer, sixteen feet above the old grade, was built to conform to the new grades established on the map of Tremont avenue, and that the acceptance by the city of the work of the contractor, who built . a temporary highway or bridge at a grade substantially conformable to the new grade fixed for Tremont avenue, i-s a practical interpretation of the contract for building the sewer; that the “ suitable approaches ” mentioned in the contract had reference to the proposed change of grade of Tremont avenue. We have thus a situation in -which the city had in fact destroyed the old grade of the road in front of the claimant’s premises, and had in effect taken steps looking to the actual raising of the grade. Under these circumstances the award for substantial damages was justified and should not be disturbed. The objection of the property owner to this award upon the ground of inadequacy should also be overruled. The objection by the. owner of parcel lc to the award of nominal damages for injury to his building, also arising from the elevation of the roadway by the contractor, must be sustained. For reasons already stated the change of grade had been partially effected, and since it appears that the removal of his building did not take place until after the grade at or adjoining his building had been changed I think he is entitled to substantial damages.

The commissioners have awarded' nominal damages for the taking of the fee of the street to the owner of damage parcel 1L, situated on the north side of Tremont avenue. It is not disputed by the city that the fee of the street is vested in the owner, but it is sought to sustain this award on the theory that the owner of the fee of a street subject to a public easement is entitled to nominal damages only. The contrary rule, that the owner in such a case is entitled to substantial damages, is well settled. City of Buffalo v. Pratt, 131 N. Y. 293; Matter of Trinity Ave., 81 App. Div. 215. It may be observed in this connection that substantial damages, ranging from one dollar and fifty cents to three dollars a front foot, have been awarded by the commissioners to other abutting property owners for the fee of the street, and there is nothing apparent in the record and no testimony has been referred to by counsel upon which this difference in the measure "of damages adopted may be supported. The objection to this award must, therefore, be upheld.

As to the objection of the owner to the award of nominal damages for the taking of the fee of the street abutting parcel Iq, I am. of opinion that the description in the deed fixing the point of commencement of the property “ at the intersection of the northerly side of the Eastern Boulevard with the Westchester Creek ” shows a plain intention to exclude the fee of the street. See Potter v. Boyce, 73 App. Div. 383, 389. This objection is, therefore, not sustained.

The next question presented involves the right fidvaneed by the abutting owners to recover consequential damages to their land, upon the theory that the acquisition by the city of the fee of Tremont avenue, though burdened with a public easement, constituted such a taking of a portion of the real property as to entitle • them to all damages sustained to the residue of their property by reason of the proposed raising of the grade of the street. The commissioners have rejected this claim and have declined to award consequential damages to'the property owners. I am of opinion that the acquisition of the fee of the street, already burdened with a public easement, did not constitute such a taking as to form a basis for the award of consequential damages. ' The city, by virtue of its public easement in Tremont avenue, could have changed the grade of that street without any liability whatever for damages sustained by the owners- of adjoining vacant lands (2 Dillon Mun. Corp. [4th ed.] § 688; City of Boston v. Richardson, 95 Mass. 146, 159; Kelsey v. King, 32 Barb. 410, 417), and it must, therefore, be held in order to sustain the objectors’ position that the mere combination of the proceedings for the- acquisition of the fee and the change of the grade renders the city liable for the consequential damages, although no liability would exist if the latter had been conducted independently of or had preceded the former. It seems to. me that where, as here, the owners have parted with substantially the full enjoyment of their property in the bed of the street and the city desires merely by taking the fee to acquire larger and more extended rights in the use" of the street, that this is an insufficient taking upon which to predicate the award of consequential damages. In City of Schenectady v. Union College, 144 N. Y. 241, the question of the validity of two assessments for the paving of the street in front of land, the fee of which was in the defendants, subject-to all street servitudes, was involved, and in declaring such assessment illegal the court said: “According to -the common; ordinary use of the word lot it cannot be held to designate land in an open, public street. The fee of a street is of such inconsiderable value that the owner thereof is rarely, if ever, spoken of as the owner of the street. The public, represented by the city, has the paramount right in the streets, and may, with greater propriety, be called the owner of the street.” It may he true, as urged by counsel, that the change of grade is necessitated by the proposed erection of the bridge over Westchester creek; but this would constitute a legitimate improvement for street purposes, and would therefore confer no right to compensation by way of consequential damages upon the abutting owners. Sauer v. City of New York, 180 N. Y. 27, 29; Matter of Rapid Transit Comrs., 197 id. 81, 89. In any aspect in which this question is considered no claim for damages will lie. In other respects the report of the commissioners is confirmed.

Ordered accordingly.  