
    Edward F. Linton, Plaintiff, v. Leontine C. Coupe, Defendant.
    Second Department,
    May 26, 1910.
    Real.property — dedication of land for uge as street — municipal corporations — power to allow private owners to Use part of public street for cellarway -A- permanent structures extending beyond building line unauthorized — rights of owner of fee as against persons encroaching upon street.
    A city may allow the owners of lands abutting on streets in.residential districts: • to use five feet' of the land within- the building line for courtyards without diverting such street.from the public use to which it was dedicated. •
    
      Although a street dedicated to the public use belongs to the public from one side to the other, it does not follow that the way for public travel must reach from side to side.
    Hence, one who under such municipal authority to maintain a courtyard builds a fence about it for protection does not, as against the owner of the fee of the street who dedicated it to the public, violate the easement created for street purposes, as the fence may be regarded as appurtenant to the courtyard.
    
      It seems, that if. such abutting owner should build a wall around the courtyard, not merely to protect it, but .so as to hem in the lands as if they were his own domain, the appropriation would be illegal.
    But such municipal permit to use a portion of the street within the building line for a courtyard does not authorize an abutting owner to place projections on his house, such as towers and steps, which extend beyond the building line, and by so doing trespass upon the rights of one who dedicated the land for street purposes but retained the fee.
    By dedicating laud for a public street the owner merely parts with his right to possession, not with his title to the land, and he may maintain an action of ejectment against a private person who appropriates a portion of the street to his own use.
    Thomas, J., dissented, in part.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure;
    
      Charles 8. Taber, for the plaintiff.
    
      Wilmot T~. JELalloolc, for the defendant.
   Jenks, J.: .

This is a submitted controversy as authorized by section 1279 of the Code of Civil Procedure. The plaintiff made a map of- his tract of land in the city of Brooklyn^ and laid out lots thereon by the proposed streets of the city map. Thereafter, he conveyed to the defendant’s predecessor in title a lot on the northwesterly corner of Ridgewood and Shepherd avenues with reference to his map, but he did not convey any part of either avenue. These avenues were dedicated and for many years have been used and are now used as public streets. Each is sixty feet wide, of which width thirty feet is used for the roadway. An ordinance of the city of Brooklyn permitted in certain districts, including that wherein this property is situate, the use of five feet on each side of the streets for- courtyards, and such use is general in the residence districts of the borough of Brooklyn. In 190.6-tlie defendant, as owner, built upon this lot, Which was-'one hundred and sixty by forty feet in .dimensions, a three-storied frame building. The. structure covered the width of the .lot and seventy-fiye feet of the length thereof. The easterly side of the building includes four towers or bays, running from foundation to'roof, which extend beyond the building line into Shepherd avenue for about two and one-half feet. Of said, towers two are of1 an average width of about'nine and.one-half feet, and each covers ah area of .about twenty-four square feet, and two, have an average'width of. six feet, and each covers an area of about fifteen square feet. The defendant also built solid stone or concrete steps from her entrance on Shepherd avenue to the sidewalk. ’ The steps are about six feet ten inches in Width, and extend into said avenue a distance of six feet two inches from the said building line. The defendant also set up' in a stone or concrete footing an iron picket fence, four feet in'height; in both of said avenues, about five feet from the south and east sides of her Tipid. -This fence includes a space used by the defendant as a courtyard, and incloses about .six hundred, and twenty-five square feet of land lying within said avenues, The parties agree-that this space is. “ in the exclusive possession of the defendant, who claims .the right to such possession.” ■

The plaintiff contends that he is the owner of the land within the lines of these avenues,' subject only to ..the public use thereof for street purposes, and to easements in favor of the adjoining owners, for light, air and access; that'the defendant has wrongfully taken possession of the property and withholds the same from plaintiff and from the uses to which plaintiff has dedicated it. And the parties agree that if it is decided that plaintiff is tlie° owner in fee of the land embraced within the lines of said avenues adjacent to defendant’s property,'and is entitled to the possession thereof, subject only to the said easements and to the use for street purposes, and that defendant is wrongfully in possession, thereof, then plaintiff shall be awarded judgment directing-defendant to surrender and give'up to plaintiff the land so wrongfully withheld, subject to such easements and rights, or that' plaintiff have such other relief, whether legal or equitable, as the court .may. decree just and appropriate; and if it. shall be decided that plaintiff is not-the owner of the lands,- or is'not entitled to the possession -thereof, subject-to. such ease-merits and rights of the public, of so much of said avenues as is now in the exclusive possession of the defendant, then defendant shall have judgment dismissing the complaint.

Although it is commonly said that the entire street belongs from side to side to the public, this saying does not mean necessarily that the way to be afforded for public travel in a city street must reach from side to side. Matter of Clinton Avenue (57 App. Div. 166; affd., 167 N. Y. 624) involved the question of the use of the part of that street for courtyard purposes, and it was then decided that courtyard purposes were street uses. This court, per Woodward, J., said f “ It is not necessary that every part of all highways should be used for the passage of' vehicles and pedestrians; it is proper that some regard should be had for the aesthetic tastes, the comfort; health and convenience of the public, and, if the Legislature had enacted that Clinton avenue should be increased in width to the extent provided in this act, and had provided that á strip in the center of the highway, forty feet wide, should be devoted to trees and flowers, as is done in many of our cities, it would hardly' have been questioned that this constituted a public use in the same sense that a park preserve is generally recognized as a public use. (Shoemaker v. United States, 147 U. S. 282, 297, and authorities there cited.) Because the Legislature has preferred to leave this breathing space upon the sides of the street, subject to the limited use of the owners of the fee, does not change its essential character, and the improvement is undoubtedly much less expensive than the one which is suggested as within the legislative discretion.” In Matter of Curran (38 App. Div. 82), when the question presented was that of courtyard uses, this court held that the power conferred upon the municipality by the Legislature to take land for street purposes is not limited to the number of feet necessary for a passage for pedestrians’ travel and for traffic. The court, per Hatch, J., said: “ Land may also be taken in connection with such specific use for the purpose of furnishing ample space for the access of light and air, and also to beautify and adorn. A street may in part unite the two purposes, one to furnish a way for travel and the other as a park or public place. These elements have frequently been united, and there is scarcely a city in the State where roads, boulevards and avenues have not been opened for the purpose of travel, and in connection with such rise lands have been acquired- for the sole purpose of furnishing 'ample space, in order that the enjoyment of the street itself by the inhabitants of a municipality may thereby be enhanced.” If under'the authority to -take land for a street the municipality can set off n part thereof for courtyards, in that such use is' a street purpose, I see no reason why, when land is dedicated for a street, that the donee cannot devote a part thereof for courtyards without diversion of the use. ■ (See, too, McDonald v. City of St. Paul, 82 Minn. 308, citing Dougherty v. Village of Horseheads, 159 N. Y. 154, and McArthur v. Saginaw, 58 Mich. 357.) Of course, due regard must be had to the requirements presefit and forecast for. the public travel, which is the paramount consideration. I think, then, that the city could by ordinance authorize the use of five feet on- either side of this street for courtyards. For of the sixty feet of width,.thirty feet remain for the roadwáy and ten feet on each side remain for the sidewalks. I think that the erection of a fence by an abutter about a courtyard in front of his house, when the courtyard is authorized by the public authorities, need hot be taken as a violation of the easement for street purposes. For a fence may be regarded as appurtenant to .the courtyard for its' protection and preservation. A courtyard is not intended for use as a way by the traveler in the street. And a' fence need not interfere with any other street purpose. ■ If there can be neither fence nor Other suitable setoff, the courtyard remains but a possible way, usable at any time at the whim or wantonness of the wayfarer. (See Burnet v. Bagg, 67 JBarb. 167.) If then, the abutter set up a fence designed but to' protect the courtyard, he does riot thereby divert necessarily the use ■ of the courtyard. His act is not in invitum, to the public easement, and, if not, the owner of the fee cannot complain. There is no analogy between the erection'of a fence about a courtyard and the erection of a fence in that part of a street devoted to travel of to traffic. Of course if an abutter proceed- to separate a courtyard from the rest of the street by wall or other structure, not'merely designed to protect the courtyard, but to hem in the land as if it were his own domain, then a different question would arise, and the appropriation would fall within the condemnation of the judgment in City of New York v. Rice (infra). I think, however, that the inclosure in this instance is not to be considered as any attempt to appropriate the land within-the courtyard to the impairment of the easement for street purposes. It is true that the agreed statement of facts reads that the land within the fences is in the exclusive possession of the defendant, who claims the right'to such possession,” but that paragraph must be read with the paragraph immediately preceding, which recites that the city of Brooklyn by ordinance has set apart such land for courtyards, and has permitted inclosure by the erection of fences. The “ exclusive possession,” therefore, means only such exclusion as follows the erection of the fence, and the claim of exclusive possession means only the right to set up the fence and to use the land for the purposes of a courtyard. Such possession is exclusive so far as the fence protects the courtyard and'shuts out those who might misuse it, but there is no warrant whatever for the contention that the defendant thereby asserts any title to the land.

I think that under the decision of the Court of Appeals in City of New York v. Rice (198 N. Y. 124) the defendant could not lawfully build the towers in question in that they are placed over the building-line of the public street. We are not apprised by this record of any ordinance .that authorizes the building of the steps so that they extend over the building line, and, therefore, we are compelled in this case to decide that there is no warrant for such construction.

By his dedication the plaintiff only parted with the right of possession for street purposes, and not with his title to the land. (City of Cohoes v. D. & H. C. Co., 134 N. Y. 402, and authorities cited; Eels v. A. T. & T. Co., 143 id. 133, 139.) There is of course a marked difference between the extent of the easement in country highways and city streets that affords a user for street purposes. The extent of an easement for the public use is much greater in a city street than in a country highway. (Dillon Mun. Corp. [4th ed.] § 633, n. 2; also, § 688 et seq.; Van Brunt v. Town of Flatbush, 128 N. Y. 50, 55; Eels v. A. T. & T. Co., 143 id. 141.) Elliott on Boads and Streets (2d ed. § 407) says that'in a city the easement is so broad and exclusive as to leave very little if any private right of use in the owner of the servient estate. But I think that it is the settled law of this State that the owner of the fee has the right of ejectment against him who appropriates to his own use any part of the land dedicated' to street purposes. (Etz v. Daily, 20 Barb. 32.) That case, which' seems directly in' point, is cited with approval as declaring the rule in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98, 123) and in Reformed C/mr.ch v. Schoolcraft (65 id. 13í, 151). I think, then, that we must conclude that the defendant has appropriated so much of the land as is covered by her towers arid her steps, and that the plaintiff is entitled to judgment that must be executed by delivering the possession of such land to the plaintiff, subject to .the public easement, however, for street .purposes. (Etz v. Daily, supra; Reformed Church v. Schoolcraft, supra) It is not for us to consider what possible use this judgment may serve. .

Judgment for the plaintiff, with costs, in accord with the terms of the submission.

Hirschbbrg, P. J., and Woodward, J.,

concurred; Burr, J., concurred in a separate memorandum; Thomas, J., concurred save as to the steps.

Burr, J.

(concurring) ':

I concur, although at present I fail to see how the plaintiff is to. reach that portion of the highway upon which the towers are erected without passing over the courtyard, which it may be that he has no right'to do. It is for him to determine, however,- how he is going, to be benefited by this, judgment.

Judgment for plaintiff, with costs, in accord with the terms of the submission.  