
    In the Matter of the Application of The City of Buffalo, for the Appointment of Commissioners, etc.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. _ Eminent domain—Abuttinb owner.
    Where an abutting owner has the fee of the land in the street, he is vested with aright to defend against and to enjoin a use of or an encroachment upon the street, under legal or municipal authority, for purposes inconsistent with those uses to which streets should be or have been ordinarily subjected, unless just compensation is provided to be made; nominal damages will not suffice.
    (New York city cases distinguished).
    2. Same.
    If the abutting owner does not own the fee in the street he has no right to compensation and is remediless against a taking of the street under legislative or municipal sanction, for the other purposes, unless such other uses be unreasonable, and in their nature so improper as to obstruct a free passage upon the street: or to amount to a nuisance; or to deprive him of the enjoyment of easement of light, air and access, when he would be entitled to equitable relief.
    Appeal from judgment of the superior court of Buffalo, general term, affirming order of the special term, appointing commissioners to ascertain and report the just compensation to be paid to owners and" persons interested in lands proposed to be taken,
    
      Wm. F. Mackey, for app’lt; John Gr. Milburn and Frank 0. Ferguson, for resp't.
    
      
       Affirming 39 St. Rep., 417.
    
   Gray, J.

In this proceeding the city of Buffalo sought to acquire the fee a public place, or street, authority conferred in a section of the city charter, which reads as follows, viz: “ The city may take in fee for public streets, alleys and squares the lands situate within the boundaries of any of the public streets, alleys and squares, in said city, which have been, or shall have been used as public streets, alleys or squares for more than ten years.” The public street affected by this proceeding was know as “ The Terrace ” and had been concededly in use as a street for a great number of years, and prior to the purchase by the respondents of their properties. Concededly, also, the respondents own the fee of the portion of the street in front of their premises.

The object of the city in seeking to acquire the fee in this street is not disclosed and it is not very material. A first report by the commissioners awarded nominal damages to the owners of the fee. of the land in the street; but upon its coming before the court for confirmation, tad being then objected to, it was ordered to-be set aside, on the ground that the commissioners had adopted an improper rule of appraisement in awarding only nominal damages and the report was sent back to them for further consideration. By their new report substantial damages were-awarded, and, being confirmed by the court below, the sole-question presented upon the appeal here is whether the respondents: are entitled to other than nominal damages. The point made by counsel for the city'is that the respondents, having acquired the fee of the street in front of their property subject to a perpetual public easement therein, acquired only the naked title to the fee, and, therefore, should be entitled to nominal damages only. This position the counsel for the city seeks to fortify by a reference to many authorities in this state and elsewhere; the most; weighty of which seem to be cases arising in street opening proceedings in New York city. 1 Wend., 262; 2 id., 472; 8 id., 85; 18 id., 411; 19 id., 128; 1 Hill, 189. It may be well to> consider the nature of these New York city'cases. They were.decisions by the old supreme court and the court of errors, and were made in proceedings taken on .behalf of the city of New-York for the opening up of streets, and upon applications to set. aside or to confirm the commissioners’ reports as to damages.. The question was whether the city should pay the full value of the lands taken for the street, and it was held that only nominal damages should be awarded." The decisions proceeded, however,, upon the theory that the right to claim damages, upon the opening of the streets by the city, was in the original grantor, or former proprietor of the lands, who had made sales of parcels, or-lots, bounded upon streets as projected upon the city surveys; and upon maps. It was held that their grantees had acquired no, title to the land occupied by the street, but had only acquired by a conveyance on, or bounded by, streets an easement or right of way in the street As to the former proprietor of the land, he was considered to be entitled only to nominal damages ; because he must be deemed to have engaged to give the ground for the street whenever the city required it, or to nave adopted the street as it had been previously laid out by public authority.

It should be observed, .in considering these cases, that Manhattan Island had been surveyed under acts passed very early by the legislature of the state of- New York. This legislation provided for and regulated the future opening by the city of streets and avenues as surveyed and laid out in anticipation of the-growth of that municipality, and it was also provided that, as the result of street opening proceedings, the fee should at 'once vest in the city. The compensation for the land' the court decided to be due to the former proprietor who had granted,, the lots upon the streets, and not to the purchasers from him; but this compensation should only be nominal, and as for the naked fee; because an easement or right of way was vested in the purchasers, under a dedication of the land in the street, and because there was an implied agreement on the part of the former owner to give the land for the street when the city, by instituting proceedings to open it, thereby adopted it as proposed. He was deemed to have granted with reference to existing legislation, and in anticipation of the future opening of the streets by the city. He was deemed to have received an enhanced value from his grantee by reason thereof, and from his having dedicated the land to street purposes. The pur.chasers were held to have taken no interest in the street other than that of an easement or right of way. Apparently the principle which the decisions undertook to work out was that of protecting the abutting owners against being charged for the value of the fee taken by the city, and the court was con-cerned with the relative situations of the original grantors and these abutters. In Bissell v. The New York Central R. R. Co., 23 N. Y., 61, the question upon the case was whether certain conveyances between the years 1828 and 1845, conveying lots in the city of Rochester, on either side of Brie street, carried lands to the center of that street It was held that where a conveyance was' bounded upon, or by a street, it carried the fee to the center of the street as part of the grant, notwithstanding the authority of the New York city street cases, which were there, and are- here, referred to. It .is a question how far the Bissell -case impairs the force of the authority of the decisions in the New York city street cases; for they went upon the theory that the grantee acquired no title to the land in the street at all. But however that may be, and independently of. such considerations, I think that the New York city cases were influenced by an existing state of facts which are not paralleled here. . .

The proceedings here have no reference to any original dedica- - tian which contemplated the future adoption of the street by the-city authorities and the vesting of the fee in the city as a consequence of the institution by them of legal proceedings. If or do they rest upon any legislation existing at the time of the grants by the former proprietors, or in view of and subject to which sales might be deemed to have been máde. The record is barren of evidence as to the authority by which the street in the present case came as such into the public use, or as to whether and how it was ever dedicated by the owner of the land. What we do know is that these respondents acquired the fee of the land in the street opposite their premises, and that the right of the city to take it was conferred by subsequent and recent legislation with respect to the municipal charter. I do not think that it is needed, or that it would be profitable to review the many cases in which the rights of owners of property in and abutting upon the street have been considered. The result has been to generally define and assign their particular interests and rights. The mere abutter, with no ownership in the bed of the street, is entitled to protection against an interference with certain easements in the street. They constitute property, of which neither legislature nor municipality can deprive him without compensation. Kane v. N. Y. El. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876.

It is unquestionable, however, that the ownership of the fee of the land in a street has a substantial value to the abutting property holder in the degree of control it gives to him over the uses to which the street may be put. It vests him with the right to defend against and to enjoin a use of, or an encroachment upon the street, under legislative or municipal authority, for purposes inconsistent with those uses to which streets should be or have been ordinarily subjected, unless just compensation is provided to be made. His ownership of the land in the street was subject only to the public easement therein as a highway.

In the absence of such a provision for compensation, the taking of the street for some new, or additional and inconsistent use would be illegal. But, if the abutting property owner does not own the fee in the land of his street, he has no sucli right to compensation and is remediless against a taking of the street under legislative, or municipal, sanction for other uses; except such other uses be unreasonable and, in their nature,. so improper as to obstruct a free passage upon the street, or to amount to a nuisance, or to deprive him of the enjoyment of easements of light, air and access. As to any such improper or unreasonable use of a street the abutting property owner would undoubtedly have the right to come into a court of equity and to claim its intervention to protect his general rights. In this case no reason appears, or suggests itself, to show that the public good and advantage will be better promoted by a change of title from the present owner to the municipal government For all governmental purposes the existing easement and public right of passage in the street are sufficient and will be in the future; unless there shall be some purpose to impose an additional burden upon the street; in which case the substantial nature of the respondents’ interest in opposing the award of merely nominal damages becomes very clear indeed. The fee of the land has a value to him; it seems valuable to the municipality. He has possible interests at stake to protect; the municipality may have other interests to advance.

It is authorized by law to take from him his title and he cannot defeat the proceedings, but the law requires just compensation to be made to him. What is there in the law, or in reason, which disentitles him to the receipt of substantial damage? I see nothing and I am adverse to holding that the exclusive rights in the land occupied by the street, which he possesses subject only to the public easement, can be taken from him by governmental authority without just compensation, to be measured by the value of these rights to him. I think that, within the circumstances of the case, the respondents were entitled to be awarded, as the compensation provided to be made in the act, upon the taking by the city of the fee of the land in the street in front of their premises, such substantial damages as would be ascertained by measuring the effect upon the value of their property of such a deprivation.

The order appealed from should be affirmed, with costs.

All concur.  