
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Summit Avenue (Although Not Yet Named by Proper Authority) from East One Hundred and Sixty-first Street to East One Hundred and Sixty-sixth Street, as the Same Has Been Heretofore Laid Out and Designated as a First-Class Street or Road, in the Twenty-third Ward of the City of New York. The City of New York, Appellant; Harkness B. De Voe and Others, Respondents.
    
      Street opening in Sew Yorlc city, of a street ab'eady delineated on a private map— right to an award of abutting owners whose deeds refer to the map—what question, as to easements of other owners having been lost through adverse possession, cannot be raised by lot owners not appealing from the award —what award is substantial and not nominal — amaunt of award, how determined.
    
    In a proceeding to open-a street in the city of Hew York, it appeared that the street to be opened coincided with a street delineated upon a private map filed . in 1851. Lots abutting upon this street had been conveyed to various parties by deeds which referred to the map, and which conveyed the land to the center of the street, ‘ ‘ subj ect to the use thereof by all the owners of the lots laid down on said map and by the public generally as public avenues or streets according to said map.”
    The street was never dedicated to the public nor was it ever used as a means of ingress to or egress from the abutting lots. Many of the abutting owners erected fences across the street and others erected sheds and other buildings thereon.
    In the report of the commissioners of estimate and assessment appointed in the proceeding, the abutting owners were allowed one dollar and twenty-five ■ cents per lineal foot as the value of their interest in the land within the street and as damages to the abutting land.
    Some of the abutting owners filed objections to the report and the Special Term decided that the street in question never became a public highway, but that the abutting owners whose deeds referred to the map had private easements over the street; that consequently the objecting lot owners were not entitled to damages on the theory that they owned the absolute fee of the street, but that they were entitled to substantial damages and that they had not been awarded substantial damages; that they were also entitled to compensation for the buildings erected on the land sought to be taken. He accordingly sent the report back to the commissioners with directions to revise it as to objecting lot ‘ pwners, in accordance with this decision.
    Upon an appeal- taken by the city from the order remitting the report to the commissioners for revision, it was
    
      Held, that the respondent owners, not having appealed, were not entitled to raise the question whether the private easements in the street had been lost by adverse possession;
    That the awards made by the commissioners to the objecting property owners were substantial,, as distinguished from nominal awards, and that ■ the. Special ' Term was hot justified in declaring them inadequate;
    That the city should make compensation for the buildings located upon the parcels ownéd by the respondent' lot owners, but that in determining the amount of such compensation, the commissioners "should take into consideration the right of the other lot owners to compel their removal, and if such a right
    existed, the probability or improbability of the exercise thereof.
    Appeal by the City bf New York from so much of 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 3d day of-July, 1901, as denies the appellant’s motion to confirm tlie report of commissioners of estimate and assessment theretofore appointed herein as to damage parcels- Nos. 1, 4, 8, 33 and 55, and as directs that said report be returned to said commissioners for revision.
    The commissioners of estimate and apportionment in this proceeding made their final report November 24, 1900. It was presented to the court for confirmation December 21, 1900. The owners of five parcels, designated in this proceeding as parcels Nos. 1, 4, 8, 33 and 55, filed objections to the report, resulting in the1 order from which this appeal is taken.
    It appears that on July 3, 1851, a map called a “ Map of Higlihridgeville” was filed in - the office of the register of Westchester county, on which Summit avenue, among other streets, is delineated, but it appears that no dedication thereof to the public was ever made or accepted, and that the same was never opened or traveled as a way of ingress and egress to the abutting premises. Said five parcels lie within the bounds of said avenue. Summit avenue as proposed to be ■ taken by this proceeding is the same to that extent as the avenue of the same name delineated upon said map.
    The common source of title of all said titles, so far as appears from the record before this court, is David McLeod. In 1871 he acquired title by a referee’s deed in foreclosure to two-fifths of certain lots delineated on said map as fronting on Summit avenue, together with the land extending to the center of the avenue, “ subject to the use thereof by all the owners of the lots laid down on said map and by the public generally as public avenues or streets accord-, ing to said map.” The premises included in this deed covered parcels 1, 4 and 8. David McLeod appears to have acquired title also in 1871 to the other three-fifths by deeds, “ subject, however, to so much of said premises as has been taken for streets and avenues and for the Spuyten Duyvil and Port Morris Railroad Company, to the rights of the public and of the said Railroad Company in the lands so taken.” It does not appear where McLeod got title to parcels Nos. 33 and 55, but the testimony shows that he owned them in his lifetime. In 1882 he deeded the lot abutting parcel No. 33 to the respondent Annie E. Raynor, together.with the land, to the center of the adjoining avenues, “ subject to the use thereof by all the owners of lots laid down on said maps and by the public generally as public avenues according to said map.” David McLeod died in 1884 and the respondents and David A. McLeod, as liis successors in interest, partitioned the land owned by him at his death by deed dated April 12, 1894. By the partition deed the respondent Annie E. Raynor took the premises abutting on parcels Nos. 4, 8 and 55, and the respondents H. B. and A. H. De Voe took parcel No." 1. Said map is mentioned in the partition deed and the lot lines thereof are referred to in the description of the premises adjoining parcels Nos. 4 and 8. The descriptions of premises abutting on parcels Nos. 1, 4 and 8 include the bed of Summit avenue according to said map, but all of the descriptions include also “ all the right, title, interest and estate of the parties * * * in. and to so much of said Summit Avenue as lies within the boundary lines aforesaid,” or to so much of Summit avenue and the other streets and avenues “ as lies iu front of and adjacent to the said premises to the center lines of said avenues and streets respectively.” It appears that the respondents and their predecessor in title have occupied the premises in question exclusively ever since acquiring title, and have kept the same inclosed by fences and paid taxes thereon. As to parcels Nos. 1, 4 and 8 this has been for thirty, years and upwards; as to parcels Nos. 33 and 55 the exact time is not shown, but it was prior to 1882 as to parcel 33> and prior to 1884 as to parcel 55. On parcel 33 there is a banq henhouse and outbuildings, in addition to the fences. These were valued by respondents’ witnesses at $1,180, and there is no evidence to the contrary. From the damage maps it also appears that many other owners of the so-called avenue have fenced it and built upon it. It appears that between. One Hundred and Sixty-first street and One Hundred and Sixty-fifth street there are at least six fences crossing the so-called avenue; that on parcel 4 there is an apple tree two inches in diameter; that there' are on other parcels between One Hundred and Sixty-first and One Hundred and Sixty-fifth streets two cesspools, dove house, open shed, one and one-half story frame stable with stone basement, two-story frame barn, truck gardens and fruit trees, and two-story frame barn with one-story extension, in addition to the buildings already mentioned as being on parcel 33.
    The appellant’s expert -testified that, assuming' there was a public easement. over Summit avenue; so called, the fee value of the land In question would be merely nominal; but, ■ assuming that there was no public casement, the value of the land would be thirty-three and one-third cents per square foot, except for parcel 55, which would be eighty cents per square foot. From the damage map the number of square feet appears as follows: Parcel 1,1,875 ; parcel 4, 2,500; parcel 8, 1,407.25; parcel 33, 2,500; parcel 55, 2,304. Appellant’s expert further testified that if there were no public easement, but if there were a private right of way over the so-called avenue in numerous other owners of abutting premises, he would still consider the fee value as merely nominal.
    The several damage parcels in question are each twenty-five feet in width and lie between the center of the so-called avenue and the side thereof. By comparing the damage map with the awards,- it appears that each abutting owner has been allowed by the commissioners of estimate and apportionment a sum equal to one dollar and twenty-five cents per lineal foot as the value of the land taken and as damages to the abutting land, without any allowance for improvements.
    The respondents filed exceptions. The order of the Special Term confirmed the report of the commissioners as to all other parcels and in' all other respects, except as to parcel No. 1, owned by Harkness B. De Voe and Arthur H. De Voe, and parcels Nos. 4, 8, 33 and 55, owned by Annie E. Raynor; and as to these parcels the order expressly directs that the report be returned to the commissioners for revision and correction, in accordance with the opinion delivered by the justice who heard the motion. That part of the opinion which is made part of the order discusses the evidence, the claims of the city and of the owners of these parcels; declares that Summit avenue never became a public highway, but that the owners of the other lots abutting thereon, who obtained title by deeds referring to said map of Highbridgeville, have private easements over these parcels, and that the owners of the parcels, on account of the existence of these private easements, were not entitled to be awarded as for a fee simple absolute, but only for the value of the fee subject to the easements, and that this entitled them to a substantial award, which, as he viewed the evidence, had not been made; and further declares that compensation should have been made for the value of the buildings.
    The owners of the other parcels sought to be acquired by this proceeding filed no exceptions to the report of the commissioners, and the owners of these parcels as to which the city has taken an appeal have not appealed from the order referring the report back, to the commissioners with directions for revision as stated*
    
      John, P. Dunn, for the appellant.
    
      Robert J. Fox, for the respondents.
   Laughlin, J.:

Counsel for respondents argues that the private easements over the parcels in question have been abandoned or lost by adverse possession. This contention may be well founded and would require serious consideration if the question were before us, but it is not presented. If the property owners had desired to present that question for review, they should have appealed from the order in so far as it limits the commissioners in revising their report to awarding substantial damages on the basis of existing private easements.

Counsel for the appellant contends that the learned justice who heard the motion at Special Term misapprehended the testimony of the city’s expert. The opinion indicates that the justice understood the testimony-of this expert to be that' the value of the fee, on the assumption that there was no public easement over the parcels, was. thirty-three and one-third cents per square foot. In this we think, he was' in error. The' fair construction of the testimony of- the, expert, taken as a whole, is that if there were outstanding private, easements in favor of the owners of any considerable number of, parcels, the value of the fee subject to such easements -would be, only nominal, substantially the same as if it were subject to public, easements. Although- the awards made by the commissioners are not very large, they are substantial, as distinguished from nominal awards. A nominal award would only have required an award of six cents for each parcel, but it seems to be the. practice, in the city - of' New York to award a dollar in such cases. The award as made, as has been seen, averages one dollar and twenty-five cents per lineal foot -along the avenue. The length along the avenue of the shortest of these parcels is fifty-six and two-ninths feet, and of the longest one hundred feet, so that the awards for these parcels vary from seventy dollars and thirty-eight cents to one hundred and twenty-five dollars. - It- cannot be maintained that these are nominal awards, nor can -it be said that they are. so inadequate as to justify the court it setting aside the report, of the commissioners.' The land in that locality is not very valuable. The city’s expert testified that, assuming the land to be free of all easements, public and private, it' was only worth thirty-three and one-third cents per square foot, which would be eight dollars and thirty-three cents per- lineal foot measured along the avenue. The award made by the commissioners-for these parcels, subject, as they deemed them, to many private easements,, is more than one-seventh of that amount. -. It is evident that the title of many of the other parcels is in substantially the same condition with reference to these private easements as those of the respondents. The commissioners, treated them all alike. The entire expense of .this proceeding is to be defrayed by local assessment. The other property owners having acquiesced in the awards; if the respondents should receive larger awards the result would be ■inequitable. This, of course, should not deprive them of any legal-right, but it should influence the court in exercising judicial discretion in a doubtful case. We are of opinion, therefore, that substantial awards were made, and that the Special Term erred in referring the report back to the commissioners upon the theory that substantial awards had not been made.

As appears from the statement of facts, the only buildings upon parcels owned by the respondents are upon parcel 33. Assuming the existence of private easements, as must, be assumed upon this record in the absence of an appeal by the property owners, we are of the opinion that a substantial award should have been made for the buildings. As stated in the opinion delivered at Special Term, it does not appear but that these buildings were erected with the consent of the owners of the private easements. In any event, they have been suffered to remain, and no action appears to have been taken to interfere with their existence where constructed. The city is not in a position to insist that they should be moved. It seeks to take the land as it exists; and it must make just compensation for the buildings in view of whatever rights the owners may have to maintain them where they are. If this right be absolute, their value should .be awarded; but if the right be subject to the right of the owners of outstanding easements to require their removal, then the valuation should be ascertained in view of the probability or improbability of the exercise of such right.

It follows, therefore, that the order should be reversed in so far as it refers the report back to the commissioners to revise their awards for fee damages, and the report of the commissioners, in so far as it related to fee damages awarded to the respondents, should be confirmed, but in so far as the order refers the report back to the commissioners for the purpose of making a substantial award for the value of the buildings on parcel No. 33, it should be affirmed, without costs.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order reversed to the extent stated in opinion ; in other respects affirmed, without costs.  