
    In the Matter of the Application of the City of New York, Relative to Acquiring Lands, etc., for the Purpose of Opening Decatur Street from Hamburg Avenue to the Boroug Line in the Twenty-eighth Ward of the Borough of Brooklyn, City of New York. In the Matter of the Petition of Frank B. Walker, Appellant; Philip Schmitt and Others Respondents.
    Second Department,
    June 18, 1909.
    Municipal corporation' —street opening-—rights of abutting owner and owners of fee.
    Streets to be opened in the future were laid out on a tract of -land which later became a' part of the then city of Brooklyn! The owner of the tract filed a map thereof by lots, showing said streets, and sold tlie lots'by descriptions ¡referring to the streets. Later the city of New York acquired the. fee of the land for street -uses,, and subsequent awards, for several parcels wholly within the lines of the street, and which had not been included in the conveyances of the abutting lots, were made to “unknown owners.” In a proceeding by one-who had acquired title to such -parcels to obtain the awards, held, that a, judgment allowing him only one dollar'for each- parcel, and giving the rest of the award to. the abutting owners Upon whose1 lands an assessment to- pay the awards.and expenses was cast, should he affirmed.
    An award to “unknown owners” is for the benefit of all persons whose inteiv ests, Whether in fee or by easements, were taken.
    Only a nominal award should have been made for taking the fee of the street by the city under the circumstances, . ' '
    
      That it does not appear that an assessment was cast on the abutting owners is immaterial where the public records show that such was the case, and sxieh consideration cannot.affect the rights of the owner of the fee and the abutting owners to have the award divided between them.
    Woodward, J., dissented, with opinion.
    Appeal by the petitioner, Frank B. Walker, from so much of 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 16th day of January, 1909, as directs the payment' to the respondents of certain awards made for lands taken by the city of ■ New York.
    
      John M. Perry, for the appellant.
    
      James A. Sheehan, for the respondents Schmitt, Schauf and Jung.
    
      Merle I. St. John, for the respondent Wenzler.
   Gaynor, J.:

Streets to he opened in the future, including the one now called Decatur street, were laid out on a tract of land in the township of Bnshwick, pursuant to chapter 296 of the Laws of 1852. The said town afterwards became a part of the city of Brooklyn. The'owner ■ of the said tract alsp made and filed a map thereof by lots and showing the said streets, and thereafter sold the -same by descriptions referring to the said streets. The said streets' thereby became subject to the easements of the said lots thereon. In 1903 the city of New York acquired the fee of the land iii the said Decatur street for street uses by a proceeding to open the said street. Awards for several parcels thereof were made to “ unknown "owners ”. The said parcels had not been included in the original conveyances of the abutting lots, and in that way became disconnected therefrom, and the fee thereof remained in the tract proprietor. The appellant succeeded to such title, and brought this proceeding to get the awards. The court at Special Term has allowed him only $1 thereof in the case of each parcel, and given the rest to the abutting owners.

If the awards had been made to. the owner of" the feCj he would not need to have brought this proceeding. By. the adjudication of tire order of confirmation in the proceeding they would have been his, and lie could not be deprived of' them. But being to “unknown owners”, they are for all persons whose interests, whether in fee or by easements, were involved in the taking,. excepting any of such persons to whom their awards are made to them by name, there being none such here. The awards “ were not restricted to the owners of the ultimate fee, but were intended to embrace all persons having any interest whatever in the lands ” ; and the case from which this quotation-is made is direct authority that the abutting owners have such an interest, however small or difficult of definition it may be (Matter of Opening Eleventh Avenue, 81 N. Y. 436). And that the award has to he divided between the fee owner of the street strip and the abutting owner is settled by authority. Each of them was entitled to only a nominal award and should have been given no -more. The naked fee in the street, disconnected from the abutting lot, is presumed to have only a nominal value. In the case of City of Buffalo v. Pratt (131 N. Y. 293) the abutting owner owned the land in the street, and it was therefore of substantial value to the owner. If an exceptional case can . exist where it is of substantial value to the owner when disconnected from the abutting land, the burden is on the owner to sliow it, which was not done here. In the same way the easements of the abutting owner, actually or theoretically taken in the- taking-of the street strip, are only of nominal Value. But whére instead, of a nominal award, a substantial award is made to “unknown owners ”, it has to be divided between them in some way. There is no one to take it. That this is so,- and that it is proper to make the division in the way the learned court below did, namely, give the nominal fee owner $1 and the remainder to the' abutting owner, for' the equitable reason that an assessment to pay the awards and the expenses is cast on -the abutting lands, is settled by authority (Matter of Opening Eleventh Avenue, 81 N. Y. 436; Matter of City of New York, Beverly Road, 131 App. Div.. 147).

But it is said that it does not appear that such- an assessment was cast in this case,— that the amount was not cast on a wide assessment district instead of on the abutting lands — or that the city did not pay a part of it. Well.-this is all a matter of public record in-the. building in which our court sits, and we may inspect the same and see that the assessment was made- in the usual way, i. e'.,,to the centre of the blocks* to uphold the order, below. Moreover, the .brief of the learned counsel for the appellant raises no-such question, but on the contrary argues, that the. abutters acquiesced in. the assessment ” of the- abutting lots for the- awards and expenses, nor was it raised, below. And. finally it was, held in Matter of Opening, Eleventh, Avenue (supra),; that, the said considerations could mot afect, the,.rights of. the parties'to, have the award-divided between, them.

The order should- be affirmed.

■' Jen-ks, Burr and Miller* JJi.,, concurred; "Woobwarb', J.,. read for .reversal. ■ ,

Woobward, J.

(dissenting):

In the. year 1903- the city of He.w York instituted proceedings to acquire the, title; to- land, required for the--opening of Decatur street, . in. the borough of Brooklyn-., Commissioners, were duly appointed, and awards, were made, to the respondent, Schmitt for parcel Ho.. 7 in the- sum of $-l„662-,12, .to- the respondent S'chauf for parcels, 10.- to-21. in, the. sum of. $1,569.78, to, an unknown: owner for' parcels' "Hog. 24 and 25 in the. sum of. $24.6.24, and. to, an- unknown owner for parcel Ho* 26 in the; sum of $677.16-, The report of the; commissioners was- confirmed on- the 26tli day .of October, 1906, and no-appeal has, been, taken from, this, determination,, so that,, mo- matter- how excessive these, awards, may be, they are final1 and eon-elusive-,, eve*» though, it be assumed that th:ey should have been but for nominal damages; and that the commissioners;and the-court,, when.it confirmed the, report, mistook, both, the-law and the facts,-applicable to- the ease; (De Peyster v. Mali, 92 N. Y. 262, 269 and- authorities there cited.) These awards were, made- for certain definite parcels; of land,, and, so long: as, the awards remained in force, none, of the. parties could! dis-pute that the amounts awarded were just and proper. It was sufficient, for the owners of any of these- parcels to show that the title was, in them at- the, time the. awards, were made,, and this fact entitled them to the moneys- awarded to such 'parcels. (De Peyster v. Mali, supra, 269, 270.)

The appellant presented a petition to the Kings County 'Special Term in February, 1908, setting up an assignment from the devisees of Augustus Ivins made in 1907, and praying that amounts awarded 'for damage parcels 5, 7-21 inclusive, 24, 25 and 26, be ordered paid to him. The respondents Seliauf, Jung and. Schmitt joined issue by the service of answers and on March 3,1908, the matter was sent to a referee, who found that the respondent Schmitt, as owner of the fee in the street to one-third of parcel 7, was entitled to the payment of one-third of the award for that: parcel, and that the petitioner was entitled to payment of the whole of the award for damage parcels Nos. 8, 9, 10 to 21, 24, 25 and 26, ;and two-thirds -of the award made to parcel No. 7, with interest. The respondents filed exceptions to the report, and on the motion to confirm-the referee’s report the Special Term entered an order denying the motion to confirm and adjudged -that the interest -of the petitioner in each of the awards is the nominal sum of one dollar, and directing payment of the awards less such nominal sum and less the costs .of the reference to the respondents Schmitt, Jung and Wenzler. That is, the learned Special Term, holding-with the referee that the appellant Walker was the owner of the fee of the lands taken, lying entirely within the lines of Decatur street, in effect reverses the determination of the commissioners and the order confirming their report, and directs the payment of -anominal sum to the owner of the fee, and orders the payment of the balance of the award to persons who are claimed to have parted with no property whatever. We say that the court holds with the referee that the ownership was in Walker, for on no other theory could he be awarded nominal damages, and this ownership is recognized in the opinion handed down by the learned court. . 'The learned court, after discussing 'the ownership of Walker, as to which there can he no reasonable question, as I construe the record title, and holding that he was entitled to nominal damages for the taking of the fee, enters upon the discussion of the elai-in of the abutting owners. These are sho wn to tlie court’s satisfaction to have no interest whatever in the awards. Having thus disposed of the claims of both parties, -overruling a conclusive order of the court in so far as it related to the rights of the owner of the fee of the lands taken, the learned court travels outside of the record and concludes that as the abutting" owners are to pay the awards made, it is more equitable that they should have the money than that it should be retained by the city of Mew York, or be paid over to the owners of the property, who have already been conclusively adjudged'-to be entitled to the same. The court, evidently in a mood to do justice, says: So then the situation is this. There was on account of taking the property due nominal sums to the owners of the bare fee in the street and to persons-owning easements without such title. But the commissioners have given a joint award of many thousand dollars. Mo person can show other than nominal interest in it. What shall be done with it? Left with the city ? The city has no right to it and moreover will by assessment raise moneys to pay it. Who will pay the assessments ? The abutting owners. But on tliis.account they are not permitted of right to take the money as damages. The obligation- to pay an award is not relevant to show damages arising from taking property. But it is most equitable that the abutting owners should have this award. It ought, not to have been awarded to them and thereby necessitate an assessment against their property. But the award exists, although it ought not to exist. By returning the money directly to them this error can be measurably corrected. It may be that rules, practice and confirmation of the report will be evoked against such disposition. But who shall invoke them ? Persons not entitled to" the award cannot * * *. I order it paid to them, not because the damage belongs to them,, but because they must pay the same.” .

Passing over the obvious objection that this is permitting the Special Term to overrule and correct the errors-—if errors they are — of what has. been held to be a conclusive adjudication of the rights of claimants, there is a very fundamental objection upon the merits to this empirical administration of justice. It does not apjiear in the record before us that the abutting owners are to pay these awards, nor do we find such a provision in the statutes. .Chapter 6o8 of -the Laws of 1906 amends title 4 of chapter 17 of the Greater Mew York charter (Laws of 1901, chap. 466) relating to the opening of streets and parks, and section 970, as amended, provides that the city of Mew York is authorized to acquire title either in fee orto an easement, as may be determined by the board of. estimate and apportionment, for the use of the public to all or any of the lands required for streets, parks, approaches to bridges and tunnels, etc., and that the said'city of New York is authorized to apply to the court for the appointment of commissioners of estimate to ascertain and determine the compensation and recompense which should justly be made to the; respective owners,” etc., of the lands, tenements, hereditaments and premises proposed to be taken for any of the purposes aforesaid, and,- in a proper case, for the appointment of one of such commissioners of estimate as a commissioner, of assessment to assess the cost of such improvement or such proportion thereof as the board of estimate and apportionment directs, upon such parties and persons, lands and tenements as may be deemed to be benefited thereby. Section 973, as amended, provides for the appointment by the court of three discreet and disinterested persons, citizens of the United States and residents of the borough to be affected, as commissioners of estimate, and one of said commissioners of estimate is to be designated as commissioner of assessment for the performance of the duties in the title mentioned. Section 980, as amended, provides that after such commissioners of estimate have heard the testimony, etc., in relation to properties to be taken, they shall without unnecessary delay ascertain and estimate the compensation which ought justly to be made by the city of New York to the respective owners, etc., of lands, etc., to be taken, and that “ the commissioner of assessment shall make a just and equitable estimate and assessment, also, of the value of the benefit and advantage of such improvement to the respective owners, lessees, parties and persons respectively entitled unto .or interested in the lands, tenements, hereditaments and premises, not required for the said improvement,” and that the “ commissioner of assessment shall in making his estimate and assessment of the value of the benefit and advantage of the said improvement, assess any and all such lands, tenements, hereditaments and premises within the area of assessment fixed and prescribed by the board of estimate and apportionment, as the area of assessment for benefit, in proportion to the amount of benefit received. Tlie board. of estimate and apportionment is hereby authorized and required at the time of the adoption of the resolution directing the institution of proceedings to acquire title to the lands required for the improvement to fix and determine upon an area or areas of assessment for benefit in all proceedings authorized by it, and shall have power to review .and alter such area of assessment at any time before such, assessment .for benefit shall be completed and be confirmed by the Supreme Court, if it shall deem such action .advisable. * * * It may in any ease determine whether any, and,- if any, what proportion of the cost and expense thereof shall be borne and paid by the City of Mew York, and may also determine in .any proceeding or class of proceedings or generally that theexpenses of the bureau of street'.openings incurred by reason, of the provisions of this title shall be borne and-paid by the City of Mew York and the remainder, of such cost and expense shall be assessed upon the property deemed by it to be benefited thereby.” There are other provisions of the same general nature contained in this section, but enough has been shown -to indicate that the compensation to be paid for lands taken is not, under the statute, confined to the .abutting owners. A portion of the cost of the improvement may be borne by the city of Mew York, and the remainder-is .to be assessed upon the assessment area fixed by the board of -estimate and apportionment, which may entirely exclude -the abutting property, though this is not usual. So far as the record now before ns discloses, the property owned by the three respondents may not be assessed a single dollar; it may be that the entire -advantage of the taking is that of the city of Mew York .and those owning property . reached over this highway. They own lands .abutting upon a'way opened by their predecessors in title under such circumstances'that it -could not be -closed to them; they lose nothing by .the city of Mew York taking -the fee for the purposes of -a highway, but who shall say, as a matter of law — for -there are no .facts disclosed by the record^ and the statute does not so provide —- that these lands have been benefited to the extent of the '.compensation awarded by the commissioners of estimate, or that .the commissioner of assessments basso determined % IIow much the city of Mew York is to pay of -this sum; how much the abutting owners are to pay; h.ow large the area of assessment fixed by the board of estimate and apportionment is, and-what proportion of the burden is to fall upon those who are in no wise related to this proceeding, are all matters which we know not from anything which is disclosed by the record. The area of assessment .may, extend for,a mile or more beyond the lauds taken; hundreds of people, aside from' the respondents, may be called upon to pay for this improvement, and thus these abutting owners would be receiving a gratuity, for which there could be no warrant in law or equity.

But it is said that we are not at liberty to take this view; that we are concluded by authority; that in Matter of Opening Eleventh Avenue (81 N. Y. 436) the court held the doctrine of the Special Term in this case, and if this is true, then, no matter what the processés of reasoning, we must acquiesce. We are not bound, however, to extend the authority of a close case beyond the facts disclosed in the particular action or proceeding, and there are at least two conspicuous particulars in which the facts now under consideration differ from those in the case cited as controlling. In the Eleventh Avenue case the commissioners, upon-an original report, awarded merely nominal damages to the premises, which, as in the case at bar, consisted of property in a way dedicated by the owner to the use of persons who had purchased the adjacent lands on the theory that these had been dedicated to public use. The court refused to confirm this report, and sent it back with directions to award just compensation for the land described in the conveyances as streets and avenues. Subsequently the commissioners made a new report, awarding substantial damages, and this report was confirmed, no appeal being taken from the order of confirmation. Several parties claimed the award as abutting owners and as owners of the fee, and upon the matters being sent to a referee for adjustment the learned referee reported in favor of dividing the award, one-fourth to the owner of the fee and three-fourths to the owners of the easement or right of way over the lands as streets which-the city was taking in fee, and it was this report of the referee which was confirmed by the judgment in that case-.. It did not hold that the owner of the fee, subject to the private easement, had only a nominal interest in the premises; the judgment determined that he- was entitled to one-fourth of a substantial award, and upon this point the court say: “ The rule of apportionment adopted by. him, viz., one-fourth to the owner of the barren fee and three-fourths to the owners of the easement or right of way it is difficult for us to review. It was adopted with reference to all the circumstances and equities of the case in the exercise of a sound ■ judgment by a referee who evidently had a thorough comprehension of the case and was eminently '. qualified tó decide such a'matter. With .his determination we see no reason to interfere.” .(P.450.) In the'case now before us'the learned referee held that.the entire award should go the owner of" the fee, and .this determination lias been overruled, not upon any .consideration of ¡the evidence, but upon.the assumption that the owner of the fee had only a nominal interest in'the land. This is clearly in conflict, with .what was determined in the' Eleventh Avemie Oase (supra),. for there the original award was refused . confirmation because.it only allowed nominal compensation, and upon the final adjustment.the fee owner, subject to the easement-, was awarded one-fourth of the entire award, thus clearly recognizing that a fee, owner of land, subject to an easement in behalf of those owning the abutting lands, is entitled to more .than a¡ nominal sum for his premises ; \ lie has rights in the land which are not'absorbed in - the mere private easement or- right of way, and these rights the court in that case held must be respected -— were respected in the adjustment made by the referee giving him onetiourth- of the award as -made under the direction of the court. Clearly this case affords no justification for the arbitrary'determination of .the court at Special Term or here that the owner of the fee, subject to a private easement or right of way, has only a nominal interest in the land where substantial damages-have been awarded by the commissioners,'and this award lias not been challenged. Whether the report of „the referee made a proper disposition of-the matter, upon equitable grounds, presents a different question; but. it is certain that the Eleventh Avenue case does not justify the determination here under review, but is directly contrary to what, was determined by the judgment in that case.

Moreover, there was evidence in that case that the abutting owners wére, in fact^ to pay for the lands taken, and it was -not left for the court to search the archives to discover whether this¡ fact did or did not exist. The court, say: “ The land was, before the opening of the avenue as a public highway, subjected to a perpetual easement,- which deprived the owner of the beneficial enjoyment of ..the land. There would: be manifest injustice in awarding the whole compensation to the owner of the fee, in view of the fact that such compensation is ultimately payable by the owners of thé'adjacent lots in the form of assessments, while no part' of-these assessments is chargeable to the owners of the fee of the land taken. The adjacent owners would thus be compelled to pay full value for a right of way which they already possessed. And it is in evidence in the case that all the lands fronting on the avenue were assessed for the expense of the improvement, one element of which expense is the damage paid for land taken. If the compensation paid to the owners of the fee had been merely nominal, it Would have been equitable to adopt the same rule in respect to the owners of the easement.' They would then have been compensated for their easement by the deduction of its value from the award to the owner of the fee, and the consequent reduction of the assessment chargeable against their property. But the commissioners having, under the direction of the court, awarded substantial and just compensation for the rights and interests of all parties interested in the lands, and having treated them as subject to no public rights, the aggregate of this compensation must represent the entire value of the land taken, and there; seems to be no means of equitably adjusting the rights of the parties except by pursuing the course adopted by the learned referee, of treating all these rights and interests as having been taken by the city, and apportioning the awards among the several parties in whom these rights and interests were vested.” (P. 448.) But beyond this, the court points-out in the opening paragraph of the discussion that the report of the commissioners “shows upon its face that such awards were designed to cover the value of the interests of all persons interested in the lands taken,” while in' the case at bar the report is not before us.

This is the fair extent of the rule laid down in the Eleventh Avenue case, and to this extent it is controlling, that where one has granted lands bounded upon proposed streets, under such circumstances that it does not amount to a dedication for public use, or constitute them public highways, it operates to create an easement in the grantees of the lots abutting thereon, 'which, as between them and their grantor, and those deriving title under him, entitles them to have the lands described in the conveyances as streets and avenues left open as such, for the benefit of their lots; that such an easement for the benefit of lot owners does not take all of the substantial value of the owner of the fee, and that when the public authorities take the property, under the power of eminent domain, they must make just compensation therefor, which includes the value- of the land, taken, with the private, easements, and that, as between, the unknown owners of the .fee and-the easements, it is for the court to detérmine the equities. In other words, If a grantor conveys lands bounded by a proposed street, liis grantee takes the land with an easement in. the . proposed street for the benefit of his .land. The public had no- right in this proposed street; It is merely, a, matter between the grantor and the. grantee-, and they may, by mutual agreement, destroy this easement at any time.. It is this, land and this right of the grantor and grantee to destroy this easement that the power of eminent domain lays hold upon and takes for the purpose .of opening á permanent. highway, which, private individuals cannot obstruct or discontinue; it not only takes the land.-, but it takes from the abutting owner the power to. surrender liis easement in. such way, and these are: property rights which the public must pay for before they can take- the lands-under the- constitutional provision for just compensation, and these are necessarily involved in the taking of lands subject to such easements.. The commissioners determine the value of. the land, subject to-this easement, which- is the value of the land with the right in. the owner of the easement to surrender the same; or, to put it in. another- way, it is the full value of the land as represented by the owner of the- fee and the owner -of the private easement, and where these parties are unknown,, or.there is'a controversy as to how this just compensation shall be divided between the owners of the- tangible and intangible property, it is for the court, in a consideration of all the surrounding circumstances, to'say.; The abutting owner disposes of liis private easement, of light, air and access; disposes of his- right to surrender- these to- his grantor and- thus to vest in him the. full property right in the land, and,secures substantially _the same easements from the. public. (Holloway v. Southmayd, 139 N.Y. 390; 405,, 406.) Hothing in practical effect is taken from the abutting owner by the- operation, except his.right to sell the easement'to his grantor, but. the-owner of the fee is. deprived of his. land and of the right of extinguishing the. private easement, the situation, being, as to him, very different from a case where he merely owns- the- fee of a public, highway, where he has no right to repossess, himself, óf the. easement, except in the event of an abandonment of the. public use; Just how to. determine what interest the owner of the fee and the owner of the basements have in any particular piece of property is, of course, very difficult; it must depend upon the circumstances of each particular case. In some instances the right of the owner of the easement to surrender to the grantor -such right, .and thus to vest in him the full property right in the land, would be of great value-; might be equal to a considerable part of the total value of the land, while in other .instances it would have but a mere nominal value, and no r-ule can be laid down for the government of cases generally, hut each must depend upon its own peculiar facts. It is -certain, however, that laud subject to a private easement. is worth the full value of -the land and easement merged in one person, for it is within the power of the owners to so merge them, and the JElevénth Avenue Case (supra) merely holds that it is for the -court, taking into view all of the circumstances, to determine what portion -of the award belongs to the owner of the fee—what part to the owner of the -easement. " It cannot he 'determined arbitrarily, as a matter of. law, that it all belongs to the owner -of the fee, nor yet that it all belongs to the abutting owner, and the fact that the abutting -owner is to pay the assessment — if this is true—is merely one of the facts to be taken into -consideration in adjusting the equities, and it has no relation whatever to the question of law involved here. It has been conclusively established by the report of the commissioners, approved by the court without question, that .the owners of the fee and of the private easements, -are entitled to a substantial sum :as just compensation for the property taken, .and, as I have shown that it cannot be said as a matter of law that the -owner of the fee, subject to- an -extinguishable easement, is only entitled to nominal compensation, it follows that the judgment here under consideration is wrong and must be reversed.

It is true that this case appears difficult to distinguish from Matter of City of Mew York, (Beverly Road), 18.1 App. Div* 147. I took no part in that decision, and the court was not unanimous. ■ In that case there appears to have been some question whether the title of the fee was not the result of mere inadvertence, as other property conveyed.by the same grantor in -the immediate vicinity and out of the same plot, bad been- conveyed to the center of the proposed street, so 'that only a single piece- of property of a few. feet remained in the ownership of the grantor or his successors in title,, and this w^s' so involved in the general, scheme under which the adjacent properties were conveyed that it left no substantial value in the fee ownership. That is, the owner of the fee and the owner of the easement could not, by merging their interests, produce any" substantial property value, for the ■reason that this few feét of land in the highway," cut off from all the rest of the premises by conveyances which carried the fee to the center of the- proposed street, was incumbered by an easement for the benefit of these same adjacent properties. ■ The owners of the.fee of the way, who were likewise abutting owners, had an easement in this property for the purposes of access to the remainder of the way, and this was such an easement as could, not be destroyed by the concurrence of. .the owner of- the fee and of'the abutting premises. The adjacent owners of the way held the fee, subject to the private easement of all the other holders, including the owners of the. naked feé, and the learned referee who had the cáse under consideration, determined that this mere barren fee, subject to non-extinguishable easements, had only a nominal value. The learned Special Term thought that the equity, was equal to twelve per cent of the award, and directed such payment, but this court, viewing the case from tlie standpoint .of its own particular facts,,, held with -the referee and reversed the order.. The result of . that case, it- seems to me, was not inconsistent with my views. It did not hold, under all circumstances, that the owner of the fee in a highway, subject to easements, had only a nominal value; it merely concurred in the view of the learned referee that under the facts as they appeared in that case, the owner of the 'fee had parted with all substantial value in the fee of Beverly Toad by reason . of his having conveyed, the fee " to" all of.' the surrounding property on every side, so that all that remained to him was the fee of sixty .feet of the way, subject to the easements of the abutting owner of «light, air and access, and of those adjacent owners of the fee- of the way to access to their property over this way: This' is merely, following the rule of. tlie Eleventh Avenue case in effect, for- I recognize that, while the language of the opinion in the Beverly Boacl case attempts to. lay down a contrary rule, and toliold that oiily a nominal award should' be made in all cases, it is the judgment" which is actually controlling, and that did no more than to apply the rule of the leading case. That case recognizes the fact that a mere private way, subject to private easements, has a substantial value ; that it is the value of the fee and of the easements combined, and that these must be paid for under the nile which forbids the taking of private property for public purposes without just compensation. The sum to be paid is to be determined by the tribunal provided by law for this purpose, and the only question left in a proceeding of this character is to determine the equities as between the owner of the fee and the owner of the easement. The decision in the Beverly Road case, in taking the determination of the referee, under the particular facts there involved, was probably correct, but it certainly does not justify the conclusion that where a substantial award has been made and approved, this or any other court can arbitrarily say as a matter of law that the owner of the fee is only entitled to nominal damages; that is a question depending upon the facts — upon how much of the property right belongs to him. If the easement is of such a nature that it can be surrendered without substantially harming the owner of such easement so that it might be bought for a trifling sum, as might be the case, for instance,' if the owner of the easement owned an entire block, with access to highways on three sides, no other rights intervening. The public has no rights in a way such as is here involved, and the owner of the fee, in conjunction with the owner or owners of the easements, has all the rights in the land which he ever had, and it is absurd to say that such property rights are entitled to only nominal awards under any and all circumstances. They are worth just what the real estate is worth with the easements merged in a single owner; this is what the municipality is taking, and the award belongs to the owners of the tangible and intangible property in proportion to the value of each, and this is to be determined by the peculiar facts of each case, and not by an arbitrary assumption that the fee has only a nominal value, and that the abutting owners without fee rights are entitled to the whole amount, because it is presumed they are going to be called upon to pay the assessments levied to compensate for the taking. I do not think the Beverly Road Case (supra) decided anything different in it’s results than what I am maintaining here; but if it does, it is counter to the Eleventh Avenue Case (supra), and this being an Intermediate court, and the decision not having been unanimous, I am of the opinion that' it is not stare decisis here. The doctrine of stare decisis is based upon the assumption that the rules of law' to .which this doctrine applies' have previously been determined by the:court having final jurisdiction' on .the. questions involved. For this' reason, where the- decision of a tribunal is subject to review- by one: having superior authority over it for that purpose, or the question determined may be passed upon by such tribunal in another case^ the doctrine of stare deeisis does not. apply 'with full force until-the same questions-have been determined by the court of last resort. (26 Am. & Eng. Ency. of Law [2d ed.],, 163.): ’ In-this case I-think the principle has been decided in accord, with the views which I have expressed, and I am bound to yield obedience to the-voice of authority.

It does not appear clearly what the theory of' the learned referee was in awarding the entire sum to the petitioner,, but it would seem that he decided, as a matter of laW, that.the-fee being in Walker he was entitled to the money, this being evident from-liis reference-to the fact that “the commissioners took:testimony as to the value-of the land so -taken only, and no testimony was introduced - before them as to. damage (if any) done to the easements as to the abutting owners on each side of Decatur street.” But the question was not whether there was damage to the-easement; it was what-part of the award should go to the owners of the-easement, which they had a. right to surrender, What relation the surrender value of' that easement bore to the whole adjudged value of the.premises. As the public authorities could not take the land without making-. just compensation, and no One complained of the amount- of the award or objected to the confirmation of the report, the award must-be deemed to represent the-aggregate value of all the interest's in each parcel, and -the duty of making the distribution among tlie several parties, and determining the proportions in which the several, claimants should participate, devolved upon the court... (Matter, of Opening Eleventh: Avenue, supra, 443.) The mere determination, therefore, that Walker owned the fee did not meet the situation ;-the. owners of. thei easement were entitled to a hearing as to the value of such easement, as related to the'entire-award, and’ because this was not afforded, the report of the learned referee ought not to have been confirmed.

The order appealed from should be reversed, with directions to the court below to return the report to the referee for a further hearing in conformity with this discussion.

Order affirmed, with ten dollars costs and disbursements.  