
    Jessie Gillender, Respondent, v. The City of New York, Appellant.
    First Department,
    July 8, 1908.
    Beal property — eminent domain — closing street in city of New York — private rights of access to adjoining land — due compensation — injunction.
    Án owner of private property abutting-on a public street has a right or privilege therein which entitles him to have the same, kept open for the .benefit of his abutting property. This right is an easement in the bed of the street attaching to the abutting property ¿ is private property within the meaning of the Constitution, and the owner cannot be deprived thereof without just compensation.
    Thus,- the erection of an impassable barrier across a city street which will close the street and cut off access to adjoining property, save by water, will be enjoined unless the easements in access be taken by eminent domain.
    As the Street Closing Act of the city of New York (Laws of 1895, chap. 1006) which authorizes condemnation not only of public rights of way but of private easements of abutting owners, although providing for just compensation, does not fix the time when title shall vest or when the city may enter upon and destroy the easements taken, nor fix a time from which interest shall fun, the title of the city does not vest until the confirmation of the report of the commissioners, and interest can only run from the date of said report.
    
      Hence, although the street becomes legally closed upon the adoption of resolutions by the board of estimate and apportionment, private easements are not destroyed thereby, as there is no provision for compensation during the period covered by the proceedings before the confirmation of the report, and a temporary injunction restraining the city from cutting off access to abutting lands will not be vacated. ■
    Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1906, denying the defendant’s motion . to vacate an injunction pendente lite restraining the city from physically closing West One Hundred and Fifty-first street between the Boulevard and Twelfth avenue.
    
      Theodore Connoly of counsel [John F. O'Brien with him on the brief], Francis K. Pendleton, Corporation Counsel, for the appellant.
    
      Charles De Hart Brower of counsel [Seth B. Robinson, attorney], for the respondent.
   Clarke, J.:

The plaintiff is the owner in fee simple of certain property lying on both sides of Twefth avenue and.extending from One Hundred and Fifty-first street to One Hundred and Fifty-second street in the borough of Manhattan, city of New York. One parcel lies between the easterly line of Twelfth avenue and the westerly line of the land occupied by the Hudson River railroad, being a strip eleven feet ten inches wide on the north side of One Hundred and Fifty-first street, two hundred and eight feet four and one-half inches long to the south side of One Hundred and Fifty-second street, where the strip is seventeen feet three and three-quarters inches wide. Immediately opposite said land,, on the westerly side of Twelfth avenue, she owns a lot, piece or parcel of land, or water lot, or vacant ground and soil under water to be made land, extending from One Hundred and Fifty-first street to One Hundred and Fifty-second street, about three hundred and forty-five feet in depth, "together with all the right of wharfage and cranage thereunto belonging or in anywise appertaining. In the papers upon which an injunction pendente lite was granted, plaintiff alleges that she has rented the said property to seven different tenants for dwelling, business and other purposes; that it is valued by her at $150,000 ; that the only means of access to said premises from the rest of the city is One Hundred and Fifty-first street, a public highway laid out as.such more than twenty years ago; that to the east of said premises and between said premises .and Broadway, the public drive and parkway-, as an extension of Biverside drive to Boulevard Lafayette, is now being built; that the plan as adopted by the city for said public drive and parkway provided for an archway under said drive át One Hundred and Fifty-first street so as to leave said ■ street open and unobstructed; that on-the petition of certain property owners, the local board of improvement of Washington Heights and the board of estimate and apportionment have voted to change the said parkway by omitting the said archway at One Hundred and Fifty-first street and closing said street, and that defendant is about to close said street; that, plaintiff appeared before said boards and protested against the closing of One Hundred and Fifty-first street under said change of plan until some, other means of. access to her said premises should be furnished by the’ defendant; that the defendant has refused to provide Other means of access to said premises, has taken no steps to acquire the plaintiff’s property by eminent domain or otherwise, and that the closing of One Hundred and Fifty-first street by removing all access to the- premises from the rest of - the city will compel plaintiff’s tenants to remove from said premises and will render said premises practically worthless for all purposes, and she prayed for an in junction restraining the defendant from closing One -Hundred and Fifty-first street until it pro.vided other suitable access to the premises of the plaintiff from the rest of the city.

The plans and photographs exhibit the intention of the city to physically obstruct One Hundred and Fifty-first street by an impassable barrier eighteen or twenty feet high. The motion for the preliminary injunction was granted by the Special Term, the learned court stating: “ It seems to me that if it was designed, as it is stated by the defendant, that this is a part' of an extensive plan of public improvement in the section of the city referred to, then it is incumbent upon the city to take s.uch steps as are provided by law to accomplish the desired result. Chapter 1006 of the Laws of 18'95 provides the machinery for discontinuing and closing streets. If such a proceeding were taken plaintiff would have full opportunity to present her claim for compensation for any damages which she may sustain by reason of the discontinuance and closing of the street,” and an order was entered on the 13th day of September, 1905, granting the injunction pendente lite and restraining the defendant from directly or indirectly closing West One Hundred and Fifty-first street, and from changing the plan of the public drive and parkway as an extension, or obstruct said public highway, or from contracting or permitting the present contractors or other contractors on said parkway to close or obstruct said public highway pending the final determination of this action or the further order of the court.

Thereafter a motion made returnable on the 2d of July, 1906, was made by the city to dissolve the said injunction. From said motion papers it appears that all of the retaining walls and masonry have been completed on the extension of Riverside drive from One Hundred and Thirty-fifth street to One Hundred and Fifty-eighth street, except the portion of the retaining wall designed to cross the line of West One Hundred and Fifty-first street, and a short strip at the intersection of One Hundred and Fifty-fifth street and Riverside drive extension; that the local board of Washington Heights district and the board of estimate and apportionment had passed a resolution closing West One Hundred and Fifty-first street from a point distant 470 feet westerly from Broadway to the easterly line of Twelfth avenue, and also from the westerly line of Twelfth avenue to the United States bulkhead established by the Secretary of War, October, 1890. It also appeared that the corporation counsel had instituted a proceeding for the assessment of damages and compensation therein on account of the closing of West One Hundred and Fifty-first street, had made an application for the appointment of commissioners of estimate and appraisal; that the court had duly appointed such commissioners, and that said commissioners had duly qualified.

The learned corporation counsel admits that the original injunction was properly granted, but contends that after the condemnation proceedings had been begun and a method of compensation granted to the plaintiff the injunction should have been vacated.

It is an elementary proposition that private property may not be taken for public use without just compensation, and the Constitution so provides (Art. 1, § 6); and the long line of cases beginning with Story v. New York Elevated R. R. Co. (90 N. Y. 122) have firmly established the doctrine in this State that an owner of property abutting on a public street has a right or privilege therein which entitles him to have the same kept open and continued as a public street for the benefit of his abutting property; that this right or privilege constitutes an easement in the bed of the street which attaches to the abutting property, and constitutes private property within the meaning of the Constitution of which the owner cannot be deprived without compensation.

Access to the plaintiff’s property which abutted upon this public street is taken away by the closing of the street in the manner provided by statute, and will be physically prevented by the erection of a solid stone abutment carrying the Riverside drive extension when built as contemplated. It appears upon the papers that when the abutment is built, the sole access to the plaintiff’s property will be by water. If the property to be taken, instead of an easement in the public street, were land necessary for the construction thereof, it could not be physically interfered with, nor could the title thereto vest in the city unless a sure- and certain method of obtaining due compensation were provided. In ordinary street opening proceedings it is provided by section 990 of the revised charter, chapter 466 of the Laws of 1901, that title shall vest in the city of Hew York upon the confirmation by the court of the report of the commissioners, and that upon the vesting of title, The City of Hew York, or any person or persons acting under its authority, may immediately or at any time thereafter take possession of the same or any part or parts thereof without any suit or proceeding at law for that purpose; ” and by section 1001 it is provided : “ All damages awarded by the commissioners of estimate and assessment with interest thereon from the date of said report, and all costs and expenses which may be taxed, shall be paid by The City of Hew York to the respective persons and bodies politic or corporate mentioned or referred to in said report, or in whose favor such costs or expenses shall be taxed-.” By section 990 thereof, it is also provided that “ Should the board of estimate and apportionment at any time deem it for the public interest that the title to the lands and premises required for any street or park * * * should be acquired by The City of New York at a fixed or specified time, the said board of estimate and apportionment may direct, by a three-fourths vote, where no buildings are upon such lands, that upon the date of the filing of the oath of the commissioners of estimate and assessment * * * or upon a specified date thereafter, and where there are buildings upon such lands, that upon a date not less than six months from the date of the filing of said oath, the title to any piece or parcel of land lying within the lines of any such street or park, shall be vested in The City of New York. * * * In such cases interest at the legal rate upon the sum or sums to which the owners, lessees, parties or persons are justly entitled upon the date, of the vesting of title in The City of New York, as aforesaid, from said date to the date of the report of the commissioners shall be allowed by the commissioners as a part of the compensation to which such owners, lessees, parties or persons are entitled.”

Here is a complete scheme under which just compensation is provided, not only for the land taken, but for interest upon the value thereof from the time physical interference therewith is permitted by the vesting of title up to the payment of the award.

But the matter at bar does not come under the Street Opening Act, nor is any land or tangible property of the respondent to be taken. Her easement is to be destroyed and her property affected and damaged. To accomplish this result legally the city must proceed and has proceeded under the provisions of the Street Closing Act (Laws of 1895, chap. 1006). Prior to the passage of this act the effect of the" closing of a street in the city of New York was that public easements in the street were alone extinguished. Private easements therein of the owners of abutting lands of light, air and access still remained. The object of the statute was to enable the city to destroy not only the public easements but the private easements of the abutting owners. (Matter of Mayor, 28 App. Div. 143; affd., 157 N. Y. 409 ; Matter of Mayor (Vanderbilt Ave.), 95 App. Div. 538.)

We have lately had this act under consideration in People ex rel. Winthrop v. Delany (120 App. Div. 801; affd., 192 N. Y. 533). In that case a small strip upon one- side of Depew place .had been closed by the city authorities, and the corporation counsel having refused to institute proceedings to ascertain the damages resulting to the premises of the petitioner by said closing, we directed that a mandamus issue to compel the institution of the proceedings. We held that under the statute a right was given to the owners of property to receive compensation where lands, tenements, hereditaments and premises or rights or interests therein were taken, affected or damaged by the discontinuance or closing of any street or part thereof.

The said act provides for the appointment by the court of commissioners of estimate and assessment and their method of proceeding. They “ shall proceed to make a just and true estimate of the .compensation which should justly be made for any loss and damage to the respective owners, lessees, parties and persons respectively entitled in possession, reversion, remainder unto or interested in any land, tenements, hereditaments or premises, easements, rights, or interests taken, affected, damaged, extinguished or destroyed by or in consequence of the discontiriuance or closing of any street, avenue, road, highway, alley, lane or thoroughfare, or any part of any street, avenue, road, highway, alley, lane or thoroughfare, described in said petition, ánd also of the benefit and advantage to the land, tenements, hereditaments and premises which shall be benefited by said discontinuance or closing, and to report thereon to said Supreme Court without unnecessary delay. * * * The damages which may be allowed by the said commissioners as aforesaid and all expenses incurred in the proceedings to ascertain said damages shall be assessed by the said commissioners upon the property benefited thereby to the extent of the benefit so received in t'he same manner as assessments for acquiring land for streets, avenues, public squares and places in such city are assessed as provided by existing laws relating thereto in such city. * * * And such report when so confirmed by said court shall be final and conclusive as well upon such city as upon the owners, lessees, and the persons and parties interested in and entitled unto the lands, tenements, hereditaments and premises mentioned in the said report, and also upon all other persons whomsoever. * "x" "x" § 11. All damages awarded by the commissioners of estimate- and assessment, * * * shall be paid by such city to the respective persons, * * * mentioned or referred to in the report of the said commissioners. * * * Said damages, costs and expenses shall be paid from the fund provided for by existing laws for the opening of streets and parks in such cities and in the case of the city of New York from the fund for street and park openings in the manner now provided for by existing laws. The court * * * upon the application of any person or persons to whom awards shall be made in such proceedings, * * * in case of the failure of the comptroller or ■chief financial officer of such city to pay the same within thirty days after demand therefor, shall require and direct the principal financial officer or comptroller to pay said awards, * * * from such fund and enforce said order or mandate in the same manner as other orders or mandates of said court are enforced.”

Here then is a complete scheme for ascertaining the just compensation to be made, and adequate provision for enforcing the payment of the amount so awarded. The act does not, however, fix the time when the title shall vest or when the city may enter upon, invade or destroy the easements taken ; nor is there any provision fixing a time from which interest shall run. It would seem to follow, therefore, that title would not vest until the confirmation by the court of the report of the commissioners, and interest would only run from the date of the report as provided in the Street Opening Act, to which the Street Closing Act alludes.

While the street becomes legally closed upon the adoption of the appropriate resolutions by the board of estimate and apportionment, this does not destroy a private easement so as to permit it to be physically invaded. As the proceedings may take a considerable time, and as there seems to be no provision for compensation during the time of the running of the proceedings, to allow such a physical deprivation of rights as that contemplated here, before confirmation of the report, would result in the appropriation by the city of private property without due compensation.

It, therefore, follows that the order appealed from refusing to vacate the injunction pendente Ute heretofore issued was right, and should he affirmed, with ten dollars costs and disbursements, without prejudice to the renewal of the motion upon confirmation of the report of the commissioners.

Ingraham, Laughlin and Houghton, JJ., concurred.

Scott, J. (concurring):

I concur in result because in this particular case the way attempted to be closed is in effect a way of necessity.

Order affirmed, with ten dollars costs and disbursements, without prejudice to the renewal of the motion upon confirmation of report. 
      
       Amd. by Laws of 1903, chap. 418, and since amd. by Laws of 1906, chap. 658.— [Rep.
     
      
       Since amd. by Laws of 1906, chap. 658.— [Rep.
     
      
      See § 6.— [Rep.
     