
    Vincent Astor, Plaintiff, v. William Thwaites, Defendant.
    First Department,
    December 30, 1915.
    Real property — municipal corporations— city of New York —Street Closing Act (Laws of 1895, chap. 1006) — extinguishment of private easements in highway by discontinuance thereof—eminent domain — damages.
    Chapter 1006 of the Laws of 1895, providing that when a used highway has been discontinued as provided in the act, by the physical opening of a new street, it shall “ cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used,” clearly implies an intention on the part of- the Legislature that all easements, public and private, are to be extinguished ipso facto by the fact of the legal closing of the highway.
    Hence, an owner of land fronting upon a highway, which has been discontinued pursuant to the statute, who subsequently acquires title to half of the bed thereof, holds the same free from any easement in favor of the owner of the property on the opposite side of such highway.
    Although property may not be taken for public purposes without just compensation, this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is sufficient if an adequate and certain remedy be provided whereby the owner of such property may compel payment of his damages.
    The provision contained in chapter 1006 of the Laws of 1895 for securing a remedy to the property owner whose easements have been extinguished is adequate and certain.
    Ingraham, P. J., dissented.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      John E. Roeser, for the plaintiff.
    
      J. J. Kramer, for the defendant.
   Scott, J.:

Plaintiff and defendant own plots of land, opposite to each other, and both fronting upon a strip of land which was an ancient highway known as the Bear Swamp road, about forty-one feet in width. This road was discontinued as a public road, when a new highway known as the White Plains road was legally laid out and physically opened, and in physical use, which was prior to June 1, 1911. At that date neither plaintiff nor defendant, nor the predecessors in title of either of them, claimed or owned title to the fee of the bed of the Bear Swamp road except that defendant owned an undivided one-sixth share in the westerly half thereof, but both claimed and possessed, by virtue of the deeds under which they held, public and private easements over the Bear Swamp road, which was for many years prior to June, 1911, a public highway in constant use. Since that date it has been wholly discontinued and is no longer used. Plaintiff’s property abuts on the old road on the east, defendant’s on the west. In 1913 defendant acquired the whole title to the westerly half of the bed of the old road, and he has now erected upon said westerly half, and upon his other property certain buildings and structures, which encroach upon and destroy plaintiff’s private easements of light, air and access over said westerly half of said roadbed, if any such easements still survive the physical opening of the White Plains road, and the discontinuance as a highway of the Bear Swamp road. It is agreed that plaintiff’s property has suffered a substantial diminution in value in consequence of the erection of said structures and will continue so to suffer if said structures are permitted to remain. Neither party has received or been awarded any compensation for his easements in and over said old road, and the structures referred to were erected without the consent or approval of plaintiff or any one of his predecessors in interest. The claim and contention of the parties are thus stated in the agreed case:

“The plaintiff contends that he has a right of way appurtenant to his property, Parcel A, over the whole of said Bear Swamp Eoad, otherwise known as Old Williamsbridge Eoad, and known as Parcel 0 on map, Schedule I, and that the structures above mentioned, thereon erected by the defendant, interfere with such right or easement.

“The defendant contends that on the opening of White Plains Eoad (now Bronx Park East) said Bear Swamp Eoad, Parcel 0, pursuant to the provisions of chapter 1006 of the Laws of 1895 of the State of New York, was closed and that all easements therein, including private easements, ceased.

“'The controversy hereby submitted for decision is whether or not upon the foregoing facts the plaintiff is entitled to judgment directing the removal of the structures in the bed of said road and enjoining the erection of any structures within the lines of said road shown as Parcel 0.

“ Or, whether the defendant as owner in fee of the westerly half of said road to the centre line thereof, is entitled to use the said westerly half freed of any right of way or easement.”

There has been much discussion and some difference of opinion as to the effect upon private easements in a street or road, resting in grant, express or implied, when said street or road has been discontinued, in consequence of the opening of new streets under the provisions of what has come to be known as the Street Closing Act of 1895 (Laws of 1895, chap. 1006).

The matter now seems to have been set at rest by the very recent opinion of the Court of Appeals in Barber v. Woolf (216 N. Y. I). In that case, after remarking that it is extremely important to property owners, to the municipal, authorities and to the legal profession, that the scope and effect of proceedings under chapter 1006 of the Laws of 1895 for the extinguishment of easements should, no longer remain uncertain and open to question, the court said: “We think it was the purpose of the statute to permit the extinguishment of all easements, private as well as public, and this without reference to their origin and whether they depend upon mere contiguity or upon grant, express or implied. There is no logical basis for making any distinction between one class of private easements and another. The closing of streets in order to permit the adoption of a uniform plan of municipal improvement being a public purpose, and an actual closing being necessary to carry out that purpose, it is just as essential that private easements resting in grant shall be extinguished as any others. Unless they could be acquired upon proper compensation being made therefor, the statute would fail of its purpose. We are, therefore, of the opinion that the private easements affecting the property sold in this case were lawfully extinguished under the provisions of chapter 1006 of the Laws of 1895, independently of any question of estoppel.”

It is to be observed that the Court of Appeals, in the opinion above quoted, goes no further than to say that it was the purpose of the statute to permit the extinguishment of private easements. In this regard it does not go to the full extent that the Street Closing Act does, because that act provides (§ 2) that when a public street, road or thoroughfare has been discontinued as provided in the act, whether in the case of an unused highway by the filing of a map, or in case of a used highway by the physical opening of a new street, it shall “cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used.” Clearly this implies an intention on the part of the Legislature that all easements, public and private, are to be extinguished ipso facto by the fact of the legal closing of the discontinued highway, for if any remained, the owner of the fee in the bed of the old street, not being the owner of the abutting property on both sides of the highway, could not “enclose, use and occupy the same as fully” as if the old street had never existed. This has always been understood to be the effect of the act as to public easements, and if we read the opinion of the Court of Appeals aright there is no logical basis for making any distinction between one class of easements and another, except that for the extinguishment of private easements the owner of the dominant tenement is entitled to compensation.

We do not understand that the plaintiff dissents from the proposition that the purpose and effect of the Street Closing Act of 1895 was to permit the extinguishment of all easements, both public and private, over the bed of the discontinued street, but bis claim is that as to private easements resting on grant, express or implied, the actual extinguishment of the easement does-not take place until such easements have actually been condemned or otherwise acquired and paid for. There are expressions in the opinion from which we have quoted which certainly lend color to this contention, but that question was not involved in the case in which the opinion was written. There was "no question of compensation in the case because it was-one of the established facts that the owner of the dominant tenement had petitioned for and been awarded substantial damages for the injury done to his property by the legal closing and discontinuance of the street upon which it abutted including the extinguishment of his private easements.

The Street Closing Act makes no condition that the private or other easements shall be actually condemned and paid for before they are extinguished, for the owner of the bed of the street is permitted at once upon the legal closing of the street, which in some cases is affected by the mere filing of a map showing the street as discontinued, to inclose, use and occupy the same as fully as if it had not been a street. This clearly can mean only an instant extinguishment of all easements upon .the legal closing of the street. The Street Closing Act of 1895 provides two methods by which the owner of a dominant tenement whose appurtenant easements have been thus extinguished may enforce a claim for compensation. By section 4 of the act the local authorities making and filing a map indicating the closing and discontinuance of a highway are required to deliver to the corporation counsel a certified copy of such map, and if said authorities fail to do so after being requested by the owner of any land interested or affected by such closing or discontinuance, it is made the duty of the corporation counsel to himself procure such certified copy, and thereupon to institute condemnation proceedings “to ascertain and determine the compensation which should justly be made to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises, rights, easements or interests therein taken, affected, damaged, extinguished or destroyed by such discontinuance and closing,” and the courts will enforce the performance of these duties by the corporation counsel by mandamus. (People ex rel. Winthrop v. Delany, 120 App. Div. 801; sub nom. People ex rel. Winthrop v. Pendleton, 192 N. Y. 533.)

Succeeding sections of the act provide a complete scheme for ascertaining .and enforcing the payment of such damages, following in this regard the provisions prescribed in the case of street openings.

An alternative method of ascertaining and enforcing payment of such damages is provided by section 14 of the act under which a property owner injuriously affected by the closing of a highway may intervene in a pending street opening proceeding and thus obtain compensation for the loss of his easements.

Thus we have the decision of the Court of Appeals that the act of 1895 operates, as it clearly was intended to operate, to extinguish all easements, private as well as public, over the bed or the soil of a street closed and discontinued in accordance with the terms of the act, and we have also the clearly-expressed intention contained in the act that such extinguishment shall be instant upon the closing and discontinuance. Unless this latter provision of the act is invalid upon constitutional grounds, the defendant was legally justified in erecting the buildings and structures complained of upon the westerly half of the bed of the former Bear Swamp road of which he has acquired the title in fee, for the plaintiff’s easements over said land had been extinguished.

The fundamental doctrine, of course, is that private property may not be taken for public purposes without just compensation, but this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy be provided whereby the owner of such property may compel payment of his damages. (Matter of United States, 96 N. Y. 227, 237; Bloodgood v. M. & H. R. R. Co., 18 Wend. 9; Lyon v. Jerome, 26 id. 485; People ex rel. Utley v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308; Sun Pub. Assn. v. Mayor, 8 App. Div. 230, 255.)

The provisions contained in the act of 1895 for securing a remedy to the property owner whose easements have been extinguished are adequate and certain. Such a property owner has it in his power to compel the proper proceedings to be taken, and the provisions as to the method of ascertaining the compensation to be paid and the enforcement of an award therefor are entirely similar to the provisions of law relative to the opening of streets, which have always been deemed to furnish an adequate and certain remedy for a person whose property is taken under the power of eminent domain. (Sun Pub. Assn. v. Mayor, supra, 255.)

It follows from these views that all the easements of plaintiff and his predecessors in title, however derived, were extinguished when Bear Swamp road was legally closed and discontinued, and that defendant, having acquired title to the westerly half of the former bed of said road, holds the same freed 'from any easements in favor of. the property owned by the plaintiff. Consequently there must be judgment for the defendant as prayed for in the submission, but without costs.

McLaughlin, Clarke and Smith, JJ., concurred.

Ingraham, P. J. (dissenting):

I dissent and vote for judgment for plaintiff.

Judgment ordered for defendant, without costs. Order to be settled on notice.  