
    In the Matter of the Application of the City of Rochester to Acquire Land for Park Purposes. Benjamin M. Baker, Appellant; The City of Rochester, Respondent.
    
      Condemnation of land, for park purposes in Rochester—right of drainage to be paid for, where the fee is taken—right to compensation for a highway thus taken — right to take a fee.
    
    Where an absolute title in fee of land is taken in proceedings instituted by a municipal corporation for its condemnation for park purposes, the owner is entitled to compensation, to be made in such proceeding, for the injury which will be done to other and abutting land owned by him which is drained by a system of drains having their outlet through a trunk sewer in the land sought to be taken, by reason of the right to maintain such outlet for the drains being taken away. He is also entitled to compensation for the loss of the right to use a public highway existing in the condemned land.
    
      It seems, that the Legislature may authorize the fee or any lesser estate in lands to be condemned in such proceedings.
    Appeal by the owner and claimant, Benjamin M. Baker, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 29th day of December, 1896, confirming the report of commissioners in proceedings for the condemnation of certain lands sought to be acquired by the city of Rochester for j>ark purposes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 16th day of June, 1896, appointing the commissioners.
    The proceedings were instituted by the city of Rochester under the “ Park Act ” applicable to said city, being chapter 193 of the Laws of 1888 and amendments, to acquire by condemnation certain lands for the purchase of which agreement could not be made with the owner. The result of the proceedings was an award by the commissioners of $2,600 for the land taken, being a sum much less than claimed by the appellant. The proceedings were under the provisions of the “ Park Act ” with reference to condemnation and not under the General Condemnation Law.
    Proceedings were taken through the common council of the city as provided by its charter. The land condemned was about twelve acres fronting upon the east side of the Genesee river within the corporate limits of the city. It was the front of the appellant’s farm of about one hundred and forty acres, the farm stretching to the eastward from the river. It was a valuable farm. As it sloped to the east the land descended, and in high water in the Genesee river was more or less submerged. To relieve the farm from this water and other surface water a series of drains had been constructed by the appellant which drained sixty acres of - the land lying directly back of the . twelve acres. . These drains upon reaching the twelve acres converged into one large trunk ditch or sewer, with twelve or fifteen-inch tile, which sewer was sunk in the ground low enough to carry off the water and empty it into the Genesee river. These twelve acres were the highest grounds in the farm and dry land. • These drains were necessary to drain the farm from water, and upon the twelve acres was the only orchard on the farm, which .was a valuable one. The buildings upon the farm were east of the twelve acres, and passing through the twelve acres and in front of the farm buildings was a highway called the River road, which was constantly used by the appellant and was the only direct, convenient access to the city of Rochester.
    
      John D. Lynn, for the appellant.
    
      Eugene J. Dwyer, Assistant Corporation Counsel, for the respondent.
   Ward, J.:

Considerable evidence was given in behalf of each side of this controversy before the commissioners to ascertain the damages that should he awarded, to the appellant for taking his lands for park purposes, and upon the hearing of the proceedings the appellant sought to show the damages that would result to him from being deprived of the system of ditches that had been constructed to relieve 'his farm from water and which connected with the Genesee river through the twelve acres fronting upon the river that the city sought to take and condemn for park purposes. He also offered to show the damages that would result to him from having the highway or River road transferred to the jurisdiction of the park commissioners and embraced within the park. This evidence was objected to by the corporation counsel and was ultimately rejected by the commissioners, they holding that neither item of damage could be considered by them, and giving the appellant an exception, so that these questions are fairly before us, being the only questions argued by the learned counsel for the appellant as grounds of error.

The Special Term did not decide these questions, holding that it had not jurisdiction to do so under the Park Act,” and that any error of the commissioners in regard to the exclusion or admission of testimony could only be corrected by appeal. The learned counsel for the respondent, however, contends that the order confirming the report of the commissioners is not appealable, as no right to appeal is given by the charter in such a case. This is a special proceeding and is properly appealable to this court under title 8 of chapter 12 of the Code of Civil Procedure. (And see Matter of the City of Buffalo, 17 N. Y. St. Repr. 371; sub nom. In re Appointment of Park Commissioners, 1 N. Y. Supp. 763; Matter of City of Rochester, 137 N. Y. 243.)

It must be conceded that if the remainder of the appellant’s farm not taken by the city for park purposes is deprived of its system of drainage, the appellant will suffer serious damage. The theory upon which the commissioners excluded the evidence as to this damage, and which is urged by the learned counsel for the city here, is that this proceeding does not acquire any right to cut off or otherwise interfere with the drains existing upon the lands to be taken, but the appellant’s drainage system will remain intact with his right to make the necessary repairs thereon from time to time, notwithstanding the appropriation of the lands for park purposes. The difficulty with this contention is that when the land is condemned and paid for by the city, it becomes, under the “ Park' Act,” the property of the city. The title in fee to the realty vests in the city; the absolute control of the lands tlms taken for park purposes is secured to the city by legislative decree.' There is no reservation of easements, water rights or other privileges as connected with other portions of the property of the landowner from which the condemned premises are taken.

Section 3 of the “Park Act” declares that the lands taken for park purposes shall be deemed to have been taken for a public use. Section 10 provides that, upon the landowner being paid a compensation for the land so taken, “ the fee of the said lands shall vest in the said city of Rochester for the uses and purposes named in this act, and the same shall be held by said city for such purposes and uses forever.”

The 14tli section provides that in all cases where any real estate subject to any lease or other agreement shall be taken under the condemnation proceeding, all covenants and stipulations contained in such lease or agreement shall, upon final confirmation of the report of the commissioners, cease, determine and be discharged.

Section 29 provides that lands acquired by the city under the provisions of the act, except such as may come to it by gift, if the park commissioners shall determine the same is unnecessary to be longer used for park purposes, may be sold at public auction and the proceeds put into the city treasury. Indeed, the whole scope of the act indicates a determination by the Legislature to secure to the city the exclusive right, use and title to the property taken, without reservation or exception. The implied reservations of the easement to pass the water accumulated upon the farm through the twelve acres would be inconsistent with the use of the twelve acres as a park. If the'easement existed, the appellant would have the right to enter upon the park to repair the tile ditch when necessary in order to preserve the right of drainage. In so doing, he might have to tear up the walks, grass plats, or destroy shrubbery in the park and interfere with its use as a park.

The following cases may be profitably consulted, upon the question as to what estate or title vests in the city to the land acquired for park purposes: Sweet v. Buffalo, N. Y. & Phil. Ry. Co. (79 N. Y. 293); Matter of Water Commissioners of Amsterdam (96 id. 351); Rexford v. Knight (11 id. 308); Birdsall v. Cary (66 How. Pr. 358); Vandermulen v. Vandermulen (108 N. Y. 195). (See, also, Lewis Em. Dom. § 278.)

The right to appropriate property for public use includes not only the tangible thing owned, but every right and incident which accompanies ownership. In case of land it includes any right or easement, and it has been held that it even includes a right of action for injuries to land. (6 Am. & Eng. Ency. of Law [1st ed.], 530, and cases cited.)

The right to maintain the drain through the twelve acres is property, and it cannot be acquired of the owner without compensation. (Arnold v. Hudson River Railroad Company, 55 N. Y. 661; The People ex rel. Williams v. Haines, 49 id. 587.)

It is within the power of the Legislature to authorize lands to be condemned for public use which may be permanent; to determine what estate shall be taken, and to authorize the taking of any fee or vested estate in its discretion. (Sweet v. Buffalo, N. Y. & Phil. Ry. Co., supra.)

The learned counsel for the city argues that the rights of the parties in the proceeding, as to the title obtained by condemnation of the twelve acres, must be governed by the same principles that would obtain if the appellant had voluntarily conveyed the twelve acres to the city without reserving the right of drainage, and to the rule in such cases he cites Wells v. Garbutt (132 N. Y. 430); Paine v. Chandler (134 id. 385); Roberts v. Roberts (55 id. 275); Lampman v. Milks (21 id. 505).

In Burr v. Mills (21 Wend. 290) Judge Cowen says: “If a man convey land which is covered by his mill pond, without any reservation, he loses his right to flow it.. There is no room for implied reservation. A man makes a lane across one farm to another which he is accustomed to use as a way, he then conveys the former without reserving a right of way, it is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose without an express reservation.” (And see Treadwell v. Inslee, 120 N. Y. 458; Outerbridge v. Phelps, 13 Abb. N. C. 133.)

Judge Vann, in Wells v. Garbutt (supra), says that “as a grantor cannot derogate from liis own grant, while the grantee may take the language of the deed most strongly in liis favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor, and this distinction explains many of the apparent inconsistencies in the reported cases.”

And the rule governing such cases is stated as follows : “ Where the owner of two parcels of land conveys one by an absolute and unqualified deed, we think that an easement will be implied in favor of the land retained by the grantor and against the land conveyed to his grantee, only in case the burden is apparent, continuous and strictly necessary for the enjoyment of the former.”

The respondent’s counsel claims that this rule covers the case,, and that the easement is retained by the appellant under the “ Park Act.”

We cannot concur in this contention, as we have shown the city stands upon its title under the statute, which excludes the appellant from all right, title and interest in the premises, upon the damages-that have been awarded being paid to him. The rule claimed in the cases cited by the respondent have no application.

The other question presented, as to the right of the appellant to damages growing out of the appropriation of the River road, remains-to be considered.

The 3d section of the “Park Act” provides that the commissioners “ may take any part or parts of existing streets and change the lines thereof, * * * all parts of streets, avenues and highways now laid out as running through said lands are hereby closed and discontinued so far as the same woidd run through or intersect any of said lands, except parkways and streets connecting parks.”

The counsel for the city insists that no damages can be assessed for the discontinuing of the highway under the “ Park Act,” because subdivision 4 of section 168 of the charter of the city of Rochester (Laws of 1880, chap. 14), which defines the power of the common council as to improvements, etc., proxfides that “the executive board, whenever authorized by the common council, shall have the same power with respect to said city to discontinue any street therein as is now by law possessed by commissioners of highways of towns with respect to roads in towns, and the same proceedings shall be had and the same appeals shall lie from the decision of the said executive board * * * as are now provided by law in reference to towns so far as applicable.”

This section should be construed in connection with the sections of the Park Act ” from which we have quoted.

"We are not to regard the Legislature as intending the “ Park Act” to provide for the discontinuance of highways that might intersect the parks without compensation to the owner affected by the discontinuance, as it would be unconstitutional to discontinue a highway without compensation to those injured thereby. (Egerer v. N. Y. C. & H. R. R. R. Co., 130 N. Y. 108.)

The Highway Law referred to in the section of the charter recognizes the right of the owner of lands through which a highway passes to damages for its discontinuance.

The argument of the city’s counsel amounts to this, that while, under the Park Act,” park commissioners have full authority to assess all damages, and especially provides for the park commissioners taking possession of highways for park purposes, the landowner must be remitted to another and different proceeding to secure his damages for the discontinuance. This circumlocution is unnecessary. The Constitution of this State (Art. 1, § 7) provides that the damages shall be ascertained by a jury or by not less than three commissioners.

As we have said, the purpose of the “ Park Act” is to- ascertain all the damages in one proceeding which the landowner may sustain. The proceeding to discontinue highways, under subdivision 4 of section 168 of the city charter quoted, where damages are to be ascertained, is applicable only to the ordinary proceedings to discontinue highways. The three commissioners provided for in the “ Park Act ” are a constitutional body to ascertain the damages. If it be said that the damages cannot be assessed in the park proceeding, because it cannot be known whether the park commissioners will discontinue the road, the answer is that the damages must be assessed upon the assumption that the commissioners will exercise all the power conferred upon them by the “ Park Act.” But, by the “ Park Act,” the highway is discontinued, and all that remains is the assessment and the payment of the damages to confer all the title and interest of the appellant in the highway upon the city.

The appellant certainly had a deep and vested interest in the highway which passed in front of his dwelling and was his means, of communication with the city of Rochester. If this highway were discontinued, or Ms right to pass upon it at any time of the day or night abridged, he would be compelled to pass over a more circuitous route, and at a distance several miles greater to reach the city, so that his interest in the highway was substantial and pecuniary.

We think that the three commissioners appointed under the “Park Act” to ascertain the appellant’s damages had the right, and it was their duty, to ascertain his damages as to the interruption of his drains to the river and as to his interference with the use of the River road. The refusal of the commissioners to consider these questions was error, and for that reason the order of the Special Term confirming the report of the commissioners should be reversed, with costs.

All concurred.

Order confirming report of commissioners reversed, with costs to appellant, and proceedings remitted to the Special Term, to appoint new commissioners.  