
    The People of the State of New York ex rel. Malvina Washburn, Relator, v. The Common Council, The City Clerk of and The City of Gloversville, Respondents.
    Third Department,
    September 17, 1908.
    Real property — dedication of lands for street — acceptance necessary — private easements in proposed streets — when easement not extinguished — eminent domain — condemnation of private way for public purposes — damages.
    A landowner who built a house very near to an established street line so that the stoop encroached thereon, should not be allowed the expense of moving the entire house when the street is widened so as to bring the new line within two and one-half feet of the house.
    A public street or highway cannot be created by mere dedication; there must be also something amounting to an acceptance of the street as such, either by the constituted public authorities or directly by the public. Thus, where an owner conveyed by certain boundaries, one of which was identical with the line of a street as shown on a map in the county clerk’s office, but the city authorities took no steps to accept the street for the public and there was no general user thereof for highway purposes and it was practically impassable in places for teams, the public cannot be deemed to have acquired any right therein.
    Where an owner sells lots described as bounded upon a proposed street laid out by him the grantee acquires a right of way thereover, especially when there is no other means of access, irrespective of whether the public has or may acquire similar rights.
    Such private easement is not lost by mere nonuser no matter how long the time, but can be cut ofE only by abandonment or by prescriptive rights obtained by another.
    The mere fact that the proposed street was practically impassable and but little used does not warrant a finding' of abandonment upon the part of grantees holding under deeds describing their land as bounded thereon.
    
      Such grantee who has built a curb and sidewalk on the proposed street line but has not prevented the use of the street by other grantees does not obtain a prescriptive right as against them, although he. also holds a fee to the street under a quitclaim deed.
    Where abutting owners have private easements over a street laid out by their grantor and an easement therein is condemned for the public, the damages are nominal. A different rule would prevail if the public took a fee in the highway, for a fee is of actual value to.abutting owners.
    Where a municipal charter providing for street openings gives the common council power to “take and appropriate the land necessary" for street extensions, it will be construed to mean that no greater interest or quantity of title is to be taken than necessary for the purpose intended to be accomplished, for statutes authorizing condemnation of lands are strictly construed.
    Hence, when lands already subject to private easements are condemned under ■ said charter for a public street a mere, right of way is taken, the fee remaining in abutting owners, and they are entitled to nominal damages only. Kellogg, J., dissented, with memorandum.
    Certiorari 'issued out of the Supreme Court and attested on the 8th day of May, 1907, directed to the Common Council and the City Clerk of the City of Gloversville, commanding them to certify and return to the office of the clerk of the Appellate Division for the Third Department in the city of Albany all .and singular the proceedings had in taking the lands of the relator for highway purposes.
    
      H. D. Wright, for the relator.
    
      William A. MacDonald, for the respondents.
   Smith, P. J.:

In these proceedings commissioners to ascertain .and assess damages were duly appointed by the county judge of Fulton county pursuant to the city charter. They conducted hearings and viewed the premises, and finally made a report allowing relator, among others, certain sums for damages to her premises, which amounts she now complains of as inadequate.

The first part of the award in question allows relator the sum of $409.34 for damages on account of the taking by the city of a wedge-shaped strip of land south of her residence four and one-half feet wide on its west end, bounded by North Main street, and riming east seventy-two feet to a point. The taking of this strip of land for street purposes would necessitate the cutting away of a portion of relator’s porch, which also encroached upon the old street hereinafter referred to, and would bring the new street line within about two and one-half feet of the house at a point where the old street line was about two feet further south. The evidence taken as to the damages sustained shows the usual extremes peculiar to; this class of cases, but we are unable to say that the finding of the commissioners was erroneous. The house was originally placed very near to the old street line, as then laid out under tlie name of Prospect avenue on a map . of the tract filed in the county clerk’s office in 1871, some eighteen years before the house was built. It was presumably so placed in full knowledge of any possible disadvantages arising from such location, so that it does not seem reasonable now to include as damages sustained by taking this narrow strip of land the expense of moving the entire house to the northward, as was done by relator’s witnesses in their estimates of the damages.

The main contention, however, arises from the second part of the award, which is as follows: “We also award to Malvina Washburn for damages to her property in the City of Gloversville, N. Y., by which proposed improvement a strip of land 40 ft. in width on the east side of North Main St. 273.5 ft. in length and 30 ft. in width on the east end thereof is taken, which said strip of land id a part of the premises described in petitioner’s Exhibit Y, which said premises, viz.: that described in petitioner’s Exhibit Y, was, at and before the commencement of this proceeding, subject to an easement of. fight of way over the entire extent thereof, after making ■ due allowance for any benefits said owner may derive therefrom, $30.00.”

It appears that relator’s title to the premises affected by these proceedings came to her by a warranty deed from her husband, James H. Washburn, in 1904, and his title rested upon two separate conveyances executed, acknowledged and recorded in 1887 and ujion the same days. One of these is a warranty deed conveying premises to the north of and bounded on the south by a line which is the line of Prospect avenue heretofore referred to, no street or avenue being mentioned, however, in such deed, but reference being expressly made to the aforesaid map on file in the clerk’s office,. upon which map said avenue is clearly shown. The other conveyance is a quitclaim deed covering practically all of said avenue immediately adjoining on the south the premises conveyed by said warranty deed, also without referring to any street or avenue, but expressly referring to the said map. This map covered a five-acre tract which was subdivided into lots about 1870. It is referred to a number of times in subsequent deeds of lots, and Prospect avenue is frequently mentioned by name as a boundary in deeds of varying dates between the years 1871 and 1887, two of such deeds, and by Washburn’s grantors, having been executed and recorded in 1886, only the year before the two deeds to him.

Whether or not there was in these deeds to Washburn an express purpose to ignore any reference to Prospect avenue as laid out on this map, it seems clear that the facts shown constituted a dedication to the public of this particular amount of land for street purposes. But a public street or highway cannot be created by mere dedication ; there must also be something amounting to an acceptance of the street as such either by the constituted public authorities or directly by the public. The city authorities here took no steps to accept for the public this tract of land and there was no use of the street by the public amounting to a general user for highway purposes. For a number of years subsequent to the filing of the map Prospect avenue seems to have been practically impassable in places, for teams at least, and accordingly to have been .used but little. The public, therefore, under the cases must be deemed' to have now no right or interest whatever in this street as such. (People v. Underhill, 144 -H. T. 316; City of Cohoes v. D. & H. C. Co., 134 id. 397; Highway Law [Laws of 1890, chap. 568], § 99, as amd. by Laws of 1899, chap. 622; Horey v. Village of Haverstraw, 124 N. Y. 273 ; Mangam v. Village of Sing Sing, 11 App. Div. 212.)

The. question then arises as to whether there were outstanding at the time these proceedings were begun any private rights or easements in any way affecting the land described as Prospect avenue. As stated, a number of lots described as bounding on this avenue have been sold, and it seems well settled that such a description gives to the purchaser a right of way over the land described as a street or highway, and especially must this be so when, as in the case of one or more of the lots of this tract, a lot sold has no means of approach except by the street mentioned. (See Matter of Village of Olean v. Steyner, 135 N. Y. 341; Haight v. Littlefield, 147 id. 338; Lord v. Atkins, 138 id. 184; Matter-of Fox Street, 54 App. Div. 479.) Persons buying lots laid out on a filed map showing a street, and described in the deeds of conveyance as bounded upon such street, obviously do so with the reasonable' expectation that the street may always be used by them in all. • respects as such whether the public then has or thereafter may acquire similar rights therein or not; and it would be clearly conducive to fraud if their grantor could subsequently exclude them from such street either directly or by deeding the fee of. the street to another. Furthermore, a private easement is not lost by mere non-user no matter for how long a .time, but can be cut off only by abandonment or by a prescriptive right in another, neither of which is shown in these proceedings. ( Welsh v. Taylor, 134 N. Y. 450;. Lewisohn v. Lansing Co., 119 App. Div. 393.) Flo direct evidence as to abandonment appears, and the mere fact that this street was practically impassable and but little used would not of itself warrant a finding of abandonment on the part of any abutting owner having a right of way therein. FTor are any facts shown sufficient to establish a prescriptive right as against such an easement. It appears that Washburn has built a curb and stone sidewalk along the wesfc ern and North Main street end of that portion of Prospect avenue • which he acquired by quitclaim deed, and that for eighteen years past he has maintained a lawn upon part of this avenue; but it nowhere appears that even for this length of time, which being under twenty years would, of course, give rise to no rights by prescription, he has prevented all use by others of this avenue dr has claimed an absolute fee therein under his quitclaim deed'. During this period there has been a more or less intermittent use of this street by others, which although not amounting td a public user would be sufficient to prevent the running of .any prescriptive right to close this street as against private individuals having easements therein. The present proceedings were moreover instituted within twenty years of the date of the two deeds to Washburn.

There remains the question as to the amount of damages allowable when .property affected with private easements of right of way is taken by the public for street purposes; that is, when the burden of private rights of way already borne by the land is changed or extended to that of a public right of way. The rule in such case seems to be that only ntiminal damages are allowable. (City of Buffalo v. Pratt, 131 N. Y. 293; Matter of Village. of Olean v. Steyner, 135 id. 341,346, 347; Matter of Extension of Ethel Street, 3 Misc. Rep. 403, 404, 406; Matter of Adams, 141 If. Y. 297, 300, 301; Matter of One Hundred & Sixteenth St., 1 App. Div. 436, 445 ; Matter of Fox Street, 54 id. '479, 487.)

The relator claims that by virtue of these proceedings the public obtained title in fee and not merely an easement in the land for highway purposes. Section 102 of the' city charter (Laws of 1899, chap.' 275) provides for the opening of streets and gives the common council power to take and appropriate the land necessary ” for street extensions. The general principle is that a statute authorizing the taking of lands, is to be strictly construed, and tkq,t no greater interest or quantum of title is to be taken than is necessary for the purposes intended to be accomplished thereby. In the case of land taken for highway purposes a general easement of passage is all that is necessary and consequently the title conveyed by such proceedings will, in the absence of any expressions unequivocally directing the taking of. a larger estate, be thus limited and the fee title to the property will not be disturbed. Where a statute, laying out an avenue provided for commissioners “ to estimate the value of the lands and premises required to be taken for said avenue,” it was held that, in the absence of any provision requiring the fee of the land to be taken, only an easement for highway purposes, passed. ( Washington Cemetery v. P. P. & C. I. R. R. Co., 68 N. Y. 591.) The charter provision in the proceedings at bar is almost identical, in its reference to the estate taken, with the statutory provision in the case cited, and we think the rule there laid down should be followed here. .(See, also, City of Buffalo v. Hoffeld, 6 Misc. Rep. 197, 200.) Evidently a different rule of damages should prevail when the fee of premises is taken, for a fee in a highway is of actual value to an abutting property owner. (See City of Buffalo v. Pratt, 131 N. Y. 293, 299, 300.) We are accordingly of the opinion that the city did not by these proceedings acquire the fee of the new street, that the land appropriated therefor was already burdened with one or more private easements, and that for the additional burden imposed of a public easement of a similar nature nominal damages only were allowable. ,

The award and. determination of the commissioners should be sustained, with costs against the relator.

All concurred, except .Kellogg, J., dissenting, in memorandum.

Kellogg, J. (dissenting):

' Conceding, as we may, that rights of way existed over the forty-foot strip which entitled the owners of the adjoining lands to pass over it, and even to keep it open as a street, nevertheless the award of $30 damages is inadequate. From time to time the city., has paved, curbed, laid sidewalks and sewers along the street fronting upon this forty-foot strip, and has assessed upon the claimant as owner the cost thereof. The aggregate payments made by her for such purposes are $255.75. She paid the sums upon the claim of the city that she owned this land, which claim is entirely inconsistent with the now asserted rights of way. If the damage done by opening this street would equal or exceed that amount, the city is estopped from denying her right to be .reimbursed. The determination as to this piece of property should be annulled, and the matter remitted to the commissioners for further consideration, unless the respondent stipulates to increase the damages from $30 to $255.75, in which case the award is so modified, and as.modified is affirmed, without costs.

Award sustained, with costs against relator. 
      
       Since amd. by Laws of 1907, chap. 246. Repealed and re-enacted by Laws of 1908, chap. 830, §§ 234, 317, 318.— [Rep.
     
      
      
         See Laws of 1873, chap. 531, § 4, as amd. by Laws of 1874, chap. 264.— [Rep.
     