
    Matter of Opening Edgecomb Road.
    (Supreme Court, New York Special Term,
    October, 1901.)
    Eminent domain — Awards for property, in a city, subject to rights of way — Award to the city of New York, the moving party — New charter rule, as to basis of assessments for benefits, when applicable to an old proceeding.
    Where a city lays out a street eighty feet wide through and along a strip one hundred feet wide, already subject to a right of way in favor of many purchasers of lots in a large adjoining tract of land, the owners of the remaining outside strips, of ten feet on either side of the street, are entitled to some substantial award, in view of their surviving right to prevent the use of the outside strips for street railways, telegraph lines or pipe subways, but awards therefor, approximating the value of an unburdened fee, are clearly excessive.
    Where the city of. New York does not oppose, an award made to it for property owned by it, and taken by it for the street, is authorized by the Consolidation Act and by the charter of 1897, and the fact that the city acquired the property in the -first instance by condemning it for aqueduct purposes is not material.
    The New York charter rule that assessments shall thereafter be based on one-half of the value of the benefited property as found by the commissioners, and not as formerly, on one-half of the assessed valuation of said property, may properly be applied to a city street opening, where it appears that the fixing of the assessments had not been concluded when the charter took effect, and where there is no-reason to assume that the commissioners had theretofore concluded their examination of the evidence.
    Hearing upon objections to report of commissioners of estimate and assessment, and upon motion to confirm report as to certain awards.
    John P. Dunn and Thomas C. Blake, for City of New York.
    Henry H. Man, for Spencer trustees.
    James A. Deering, for certain property-owners, in support of awards.
    John C. Shaw and F. A. Thayer, for objecting property-owners,
    Coleridge A. Hart, for respondent Sara W. Hart.
   Bischoff, J.

The main dispute relates to the awards of the-commissioners designated as damage numbers 12 to 52, objection to the confirmation of these awards being raised both by the city and by various property-owners who are assessed for the improvement.

The lots abutting on the street at this point formed a part of what is known as the Jumel tract, and the street itself, in width eighty feet, takes its course over a strip, one hundred feet wide, which was subject to a right of way in favor of purchasers of a great number of lots laid out and described with reference to a certain map made for the purposes of a partition sale in the year-1881, the easement being reserved in each conveyance delivered upon that sale. Subject to this easement, the fee to the center of the strip thus delineated, was conveyed to the purchaser of each lot, and the city in this proceeding has acquired the fee for the purposes of an eighty-foot street, leaving between the side of the-street and the lot itself, in each instance, a strip of some ten feet still subject to the right of way.

The commissioners state in their report that, in making awards-for these parcels, they have followed the rule laid down in Matter of One Hundred and Seventy-third Street, 78 Hun, 487, where it was held that the owners of lots under the Jumel sale were entitled to more than a nominal award for the taking of land for street purposes where this right of way existed. The rule, thus-declared by the court in the case cited, proceeded upon the authority of City of Buffalo v. Pratt, 131 N. Y. 293, but no new-principle touching the measure of a substantial award in such a case was laid down. With the fee thus burdened, the right of the owner to prevent the use of the land for street railways, telegraph lines or the laying of pipes taken with the right of subsurface occupation, presents some matter of substance, and the courts have held, therefore, that the taking of the fee deprives the owner of something which has a value more than nominal (see City of Buffalo v. Pratt, supra), but no actual rule for estimating the amount which would represent proper compensation can, from the nature of things, be readily suggested.

The elements which go to make up the owner’s substantial-right, in this situation, are, nevertheless, of small' practical or intrinsic value, and while no positive measure of their worth can be stated, common sense suggests that the value of the land thus burdened cannot possibly approach the value of land in possession and free from any easement which would interfere with its ordinary improvement and occupation.

Examining the different awards made in this proceeding, I find that the awards for these particular parcels are approximately equal to awards made for property similarly situated but unburdened with any easements whatever. Taken by square feet, some-of these awards are substantially in excess of the value placed by the commissioners upon lots in absolute ownership, and, while-others are substantially less, the near approach to the stated value of an unburdened fee is so apparent in the estimate of the greater-number of the awards now in question as to compel the conclusion that some erroneous principle has been permitted to affect the-measure of damage applicable to these parcels generally.

I feel bound, therefore, to hold that the report, so far, is properly assailed, and that there should be a re-examination of these-awards—Nos. 12 to 52.

In other respects I find no ground for sustaining the objections-made by the respective parties to this report.

The award to the city of Hew York, for property owned by it and taken in the course of this proceeding, is sanctioned by section 995 of the charter (L. 1897, ch. 378), as well as hy section. 98 of the Consolidation Act (L. 1882, ch. 410), and the fact that the property in question had been originally acquired for aqueduct purposes, in condemnation proceedings, does not appear to- be material. The case is not within the rule which opposes the condemnation by one corporation of property theretofore acquired by another under the power of eminent domain, as stated in Matter of City of Buffalo, 68 N. Y. 177, and Matter of Central Park, 63 Barb. 282. This rule is merely for the protection and in the interests of the corporation first acquiring the property, where there would otherwise be a. conflict of rights, and here the city does not oppose the condemnation of its lands. Moreover, the statute (charter, § 995) makes no distinction as to the method whereby the city must have become possessed of the property in order to assert a right to compensation, and it being clear that this property was acquired and held for a distinctly corporate purpose (1 Thomp. Corp., § 28), there seems to be no reason for holding that the matter is not fully covered by the provisions of the charter referred to.

In Matter of Convent Avenue, unreported, it appears from the order submitted by counsel that the point was simply whether the city could commence a proceeding to condemn lands for street opening during the pendency of a condemnation proceeding instituted by the aqueduct commissioners and covering the same lands. This involved a dispute between certain public officials, so far as may be gathered, and.the fact that the property-owners successfully' opposed the double condemnation does not have any apparent bearing upon the question before me.

I find no reason for disturbing the awards made for parcels Nos. 11, 11a, lib, 11c and lid, the objection to which, on the part of parties interested in a reduction of assessments, proceeds upon the theory that the land taken is subject to a right of way of the same extent as the Jumel easements. As to this property there is room for doubt whether the intention of the parties was to create an easement greater than a right of way of necessity, and in some aspect there was a question of fact, for the commissioners touching the existence of the easement. I cannot assume, therefore, that any error of principle entered into the making of these awards.

For the respondent, Mrs. Hart, it is claimed that the award for her property, taken with the assessment imposed, results in an inequality when compared with the award and assessment in other instances, and the further point is made that the assessment is wrong in principle because based upon one-half the value of the property as found by the commissioners rather than upon one-half of the assessed valuation for taxation. The former method is authorized by the charter, and since it appears that the proceeding, at least, for the fixing of assessments, was pending after the date when the charter took effect, and there being no ground for assuming that the commissioners had wholly concluded their examination of the evidence before that time, the rule prescribed by the charter could properly be applied. Matter of Whitlock Ave., 51 App. Div. 436.

So far as this objecting party relies upon an inconsistency in awards, by comparison with awards for parcels in the Jumel tract, the point becomes immaterial in view of my conclusion that the latter awards are excessive, and a discussion of the relative assessments for benefit upon this and other' property would be unnecessary, for all assessments will be subject to change as the result of my conclusion as to those awards.

Awards Nos. 5, 5a, 6, 7, 8, 9, 10, 11,11a, 11b, 11c, 11d, 53, 54 and 55 are confirmed.

In view of the fact that two of the commissioners are now holding public office, new commissioners will be named to consider awards Nos. 12 to 52, and to make new assessments upon the reduction of such awards, and for this purpose the report will be referred to them for examination.

Ordered accordingly.  