
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, etc., to the Lands, Tenements and Hereditaments Required for the Opening and Extending of Briggs Avenue (Although Not Yet Named by Proper Authority) From the Bronx River to Pelham Bay Park in the Twenty-fourth Ward, Borough of The Bronx, City of New York. Frank L. Bacon, Appellant.
    First Department,
    March 8, 1907.
    Eminent domain — compensation for taking building erected after proceeding? is commenced — measure of compensation therefor.
    As .the title to real estate remains in the owner until it is actually taken by eminent domain, the owner may recover compensation for the taking of buildings erected thereon by him after the beginning of the condemnation proceedings, even though they were built for the purpose of recovering compensation from the city.
    The question of good or bad faith in moving a building to the land for the purpose of securing compensation is immaterial, but in making the award the commissioners may consider the cost of again, moving the building back on portions of the property not taken. • ,
    Appeal by Frank L. Bacon from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of May, 1906, and in the office of the clerk of the county of Mew York on the 4th day of January, 1907, confirming the report of the commissioners of. estimate and assessment in the above-entitled proceeding.
    
      Lawrence E. French, for the appellant.
    
      John P. Dunn, for the respondent.
   Scott, J.:

The appellant, the owner of lots, a portion of which were taken in this proceeding, appeals from the order confirming the report of the commissioners of estimate and assessment, his grievance being that the commissioners have refused to include in their award'compensation for a building erected by him under the following eircumstances: On December 31, 1901, the commissioners were appointed in the proceeding. On June.l, 1902, the appellant, Frank L. Bacon, bought from the city of Hew York at public action the building in question, which had been taken by the city and compensated for in another street opening proceeding. Under the terms of his pur- ■ chase Bacon was obliged to take the building off the lot upon which it then stood. On June twenty-sixth he purchased the lots upon which the building now stands and proceeded to prepare a foundation and to move the building. This work was completed by May 20, 1903. The building was so.erected upon the lots involved in this proceeding that, in front, it projects about eighteen feet over the property to be taken in this proceeding. The cost to the appellant of moving and re-erecting the building appears to have been about $3,000. It does not appear how much lie paid for it at the auction sale. The amount claimed as compensation for the building is much greater than its apparent cost to the appellant. It was considered by the court below, and we assume for the purpose of this appeal that the appellant deliberately and intentionally placed the house where he did for the purpose of recovering from the city, as compensation for its taking, a very much larger sum than it had cost him. At the time he purchased the lots these proceedings had been in progress for about six months, and it is hardly supposable that, when he bought, he did not know all about the proceedings and just how much of his lots would be taken. The court below was of opinion that because it appeared that appellant had been- guilty of bad faith in deliberately placing the building where he did place it, for the sole purpose of enhancing the damages to be collected from the city, he had thereby forfeited any fight to compensation for the destruction of or injury to the building. We regret that we are unable to concur in this view. It is perfectly well settled that title to real estate remains 'in the owner until it is actually taken by the city, and until that -time he has the legal right to deal with it as his own, and it is now well settled in this State that the act in force for many years, which forbade the allowance of compensation to the property owner for buildings erected upon his land after the filing of .a map showing that the land on which the building was erected was to b.e thereafter appropriated, to public use, was unconstitutional'because- it deprived the owner of the use of his land without compensation or due process of daw.' (Forster v. Scott, 136 N. Y. 577.) That, decision rested upon the clear and strong ground that all that is beneficial' in property arises from its use and the fruits of that use, and that whatever deprives an owner óf thefee deprives him of all that is desirable-or valuable in the title and possession. 'We are unable to see why the principle of that case,, and those which have followed it, does not extend to and cover the present case. As we view it the owner of the lots had the absolute right, until the city had actually taken title, to use and improve his property as he would, and if lie'exercised nó more than his strict legal right the question of good or bad faith is not important. Of course if an ównér, knowing that the property is soon ..to be taken, places upon it extravagant or inappropriate improvements he runs a risk that' the commissioners may not deem the improvements to be worth as much as they cost, but that question does not arise here. It is not to be lost sight of that it is always a matter of much uncertainty. when a proceeding of this nature will be concluded, for the city may discontinue at any time. It is a matter of common knowledge that such proceedings often extend over many years. Indeed the motion to confirm the. report of the commissioners in this proceeding .was not made until February, 1906, four years after the commissioners were appointed, and nearly three years after the appellant had moved and set up his house. That the house'had already . been condemned and paid for in another proceeding -is of no moment, for precisely the same question would have arisen if Bacon had erected a new house where he set up the old one. When the city in the first proceeding acquired the house it might have destroyed it. It elected to sell it, with the requirement that it be moved away. Or it might by resolution of the appropriate, board have taken title at any time^ but elected not to do so. Either of these steps which the city might have taken, but- did not, Would have effectually prevented the re-erection and recondemnation of the house. How mñbh should be allowed is á question not now - before us. That rests with the cginmissioners. All that the statute requires is just compensation and all that the city needs to acquire is about eighteen feet of the house. In view of the facility with which this particular house can be moved about, and the appellant’s opinion, expressed by his acts, that it is an appropriate improvement for lots in this locality, the commissioners may consider that the cost of moving it back on the property not taken for street purposes will be an element to be considered in arriving at the just compensation to be awarded.

The order must be reversed and the report returned to the commissioners for revision in accordance with the view herein expressed.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Order reversed and report remitted to commissioners as stated in opinion, Settle order on notice.  