
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of the City of New York, Respondent, Relative to Acquiring Title to Certain Lands, etc., for the Purpose of Opening Fairmount Place. William Edebohls and Josephine E. Edebohls, Appellants.
    
      Eminent domain — land designated as a street on a map made and filed by the owner thereof—when, after it has been built upon and fenced for fifty years, the owner acquires a title and is entitled to a substantial award therefor.
    In 1850 William Jarvis, who owned a plot of land in what is now the city of New York, caused a map thereof to be made, on which the plot was laid out into streets and lots. The map showed three lots, numbered respectively 111, 112 and 113, located at the northwest corner of Waverly place and Prospect street. Waverly place, as laid out upon the map, was fifty feet in width.
    November 30, 1850, Jarvis and wife conveyed the three lots to Albert Ayres by a deed containing the following description: “All that certain lot, piece or parcel of land situate, lying and being in the town of West Farms, County of Westchester and State of New York, being the lots known and designated by the numbers 111, 112, 113, on a map entitled ‘ Map of Fairmount, Upper Morrisania, County of Westchester, and State of New York,’ made by Andrew Findlay, surveyor, dated Westchester, June 26th, 1850, and filed in the office of the Clerk of the County of Westchester, at White Plains, the premises hereby conveyed being bounded and described as follows on said map: On the southeasterly side by Prospect Street as laid down on said map, 100 feet; on the southwesterly side by Waverly Place as laid down on said map, 150 feet; on the northwesterly side by lot number 110 as laid down on said map, 100 feet; and on the northeasterly side by lot number 114 as laid down on said map, 150 feet, be the said dimensions more or less.”
    October 28, 1851, Ayres and his wife conveyed a portion of the property to William Hayward. The description in the deed stated that the premises conveyed were a part of lots Nos. Ill, 112 and 113, designated on the map, and then continued: “ The premises hereby conveyed being bounded as follows on the said map: Beginning at a point on the westerly side of Prospect Street distant 50 feet northeasterly from the northerly corner of Prospect Street and Waverly Place; from thence running northwesterly and parallel with said Waverly Place 150 feet; thence southwesterly and parallel with Prospect Street aforesaid 50 feet to Waverly Place; thence southeasterly along and parallel with said Waverly Place, 150 feet to Prospect Street; thence northeasterly along and parallel with said Prospect Street 50 feet to the place of beginning.”
    In 1852, before, so far as appeared, Waverly place had ever been opened or used by the public, or by the adjoining lot owners or any of the other lots had been sold by Ayres, Hayward built a house and fence upon his premises, which house and fence extended into Waverly place, as laid down upon said map, two feet and seventy-three one-hundredths of an inch. The premises as so inclosed and built upon have been occupied by Hayward and his grantees up to the present time.
    February 5,1880, the authorities of the city of New York filed a map indicating that Waverly place, as shown on the Findlay map, had been discontinued and closed.
    Thereafter they laid out a street which coincided with Waverly place as originally laid out on the Findlay map, and in 1897 a proceeding was instituted to acquire the fee of the street, in which the commissioners made a nominal award of one dollar to Hayward’s successor in title for the fee of the strip which had been built upon and inclosed by Hayward.
    
      Held, that Hayward’s successors in title were entitled to a substantial award for the strip in question;
    That the description in the deed from Jarvis and wife to Ayres, and in the deed from Ayres and wife to Hayward, was sufficient to include the fee of Waverly • place as laid out upon the map;
    That the occupation of the two feet and seventy-three one-hundredths of an inch of Waverly place by the building of a house upon it and the fence inclosing it, was adverse to the original grantor and the grantees of other lots, and that as to those persons such adverse possession had ripened into title;
    That as the strip in question had never been actually laid out, or used by any one as a street, the public never acquired any rights in the strip in question.
    O’Brien, J., dissented.
    Appeal by William Edebolils and another, 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 9th day of October, 1900, confirming the report of commissioners of estimate and assessment theretofore appointed in the proceeding.
    
      Charles P. Pollock, for the appellants.
    
      John P. Dunn, for the respondent.
   Ingraham, J.:

The appellants, William Edebolils and Josephine E. Edebohls, are the owners of a piece of land on the corner of what has been known as Waverly place and Prospect street, in the twenty-fourth ward of the city of Hew York. This proceeding was taken to acquire title to the fee of the land laid out on the map hereafter referred to, as a street called Waverly place. The commissioners have awarded to the owners of the fee of Waverly place a nominal award of one dollar, and this award has been confirmed by the Special Term, the question on this appeal being whether these appellants have any interest in the property taken in this proceeding which entitles them to a substantial award.

It seems that prior to the year 1850 one William Jarvis owned a plot of land in what was then the town of West Farms, Westchester county; that he caused this plot to be surveyed and a map thereof made, by which the said plot was laid out in lots with certain streets indicated thereon, one of which was Prospect street, and another Waverly place. Waverly place was indicated upon said map as being fifty feet in width, and there were laid out on said map three lots of fifty feet in width by one hundred feet in depth, fronting on Waverly place and Prospect street. These lots were numbered respectively 111, 112 and 113, being on the northwest corner of Waverly place and Prospect street. This map was dated June 26, 1850, and filed in the office of the county clerk of the county of Westchester, December 11, 1850. Jarvis and wife conveyed these three lots to Albert Ayres by deed dated November 30, 1850, and recorded December 30, 1850. The description by which this property was conveyed was, All that certain lot, piece or parcel of land situate, lying and being in the town of West Farms, County of Westchester and State of New York, being the lots known and designated by the numbers 111, 112, 113, on a map entitled ‘ Map of Fairmount, Upper Morrisania, County of Westchester, and State of New York,’ made by Andrew Findlay, surveyor, dated Westchester, June 26th, 1850, and filed in the office of the Clerk of the County of Westchester, at White Plains, the premises hereby conveyed being bounded and described as follows on said map : On the southeasterly side by Prospect Street as laid down on said map, 100 feet; on the southwesterly side by Waverly Place as laid down on said map, 150 feet; on the northwesterly side by lot number 110 as laid down on said map, 100 feet; and on the northeasterly side by lot number 114 as laid down on said map, 150 feet, be the said dimensions more or less.”

On October 28, 1851, Ayres and wife conveyed the premises in question to William Hayward by a similar description; and in the year 1852 Hayward built a house upon the premises and inclosed the lot by a substantial fence, which building and fence have remained in that position to the present time. This building and fence extended into Waverly place, as laid down upon said map, two feet and seventy-three one-lmndredths of an inch; and as so inclosed and built upon the premises have been occupied by the appellants and their grantors from 1852 to the present time. In this proceeding, which was instituted in 1897, the city attempts to take this strip of something over two feet in width and one hundred and fifty feet in depth, which would involve the destruction or removal of the house upon the premises now occupied by the appellant; and this is an appeal from the determination of the commissioners that the appellants have no title or interest in the property included in the bed of this street upon which their house is erected, and are, therefore, not entitled to any award for the destruction of their house and the taking of the property which they have occupied for fifty years, upon the ground, as I understand it, that by the making and filing of this map there was a dedication of the street designated on this map as Waverly place; that the fee of Waverly place did not pass by the conveyance to the appellants, and that the city is entitled to acquire the fee of this street in this proceeding, which would include the destruction of the appellants’ house and fence, for a nominal consideration.

There was no evidence before the commissioners that this street designated on a map as Waverly place had ever been opened or used, either by the public or the adjoining lot owners, prior to the year 1852, when the house upon the appellants’ lot was built. There was, therefore, no evidence of any dedication to the public prior to the erection of the house on a portion of Waverly place. The streets, so far as appears, had not then been actually opened and used by the public ; nor, so far as appears, had any of the lots been sold except to appellants’ grantor. There is, therefore, nothing to show that prior to the erection of this building by Hayward in 1852 there had been a dedication of the street to the public. By the conveyance from Jarvis to Ayres there was undoubtedly included in the property conveyed the fee of Waverly place. The lots were sold by reference to the map as lots Nos. Ill, 112 and 113 on the map, and are described as being bounded on the southwesterly side of Waverly place as laid out by said map. We think there can be no doubt but that by this description Ayres acquired the fee of Waverly place, subject to the use of Waverly place by the owners, of lots laid out upon said map. (See Potter v. Boyce, 73 App. Div. 383, and cases cited.)

Ayres, having thus become the owner of these three lots, including the fee of Waverly place, conveyed them by map numbers to Hayward. He conveyed to Hayward part of the lots known and designated by the numbers 111, 112 and 113 on the map ; thus referring especially to the premises conveyed as tne lots specified, indicating an intention to convey by the map, in which the fee of the street would be included. (Potter v. Boyce, supra.) The description then continues: “ The premises hereby conveyed being bounded as follows on the said map : Beginning at a point on the westerly side of Prospect Street distant 50 feet northeasterly from the northerly corner of Prospect Street and Waverly Place; from thence running northwesterly and parallel with said Waverly Place 150 feet; thence southwesterly and parallel with Prospect Street aforesaid 50 feet to Waverly Place; thence southeasterly along and parallel with said Waverly Place, 150 feet to Prospect Street; thence northeasterly along and parallel with said Prospect Street 50 feet to the place of beginning.”

We think that this description was sufficient to include the fee of the street. It is the lots Nos. Ill, 112 and 113 on the map that is conveyed, and they are bounded on the map by the subsequent description. This description commenced at a point fifty feet northeasterly from the northerly corner of Prospect street and Waverly place. It then runs northwesterly and parallel with Waverly place one hundred and fifty feet; thence southwesterly and parallel with Prospect street aforesaid fifty feet to Waverly place; thence southeasterly along and parallel with said Waverly place one hundred and fifty feet to Prospect street. This line runs, not to the side, but to the street, and carries the line to the center of the street. There is nothing in the description bounding the property conveyed by the side of the street, as in the cases relied on by the majority of the commissioners; but where the line runs to either of these streets, it runs to the street; and the fact that the number of feet specified would carry it only to the side of the street is not sufficient to indicate an intention to exclude the fee of the street. A street when described as the boundary of a piece of property conveyed is regarded as a line, and that line is the center of the street ( White's Bank of Buffalo v. Nichols, 64 N. Y. 65); and when the boundary runs to and along the street, it clearly includes the fee of the street.

Hayward, therefore, in 1852, when he built his house, owned the fee of Waverly place, which, however, was subject to an easement for the use of Waverly place which would inure to the benefit of all owners of lots upon the map in reference to which he had purchased this property. But, so far as appears, this street had not then been laid out, and its width depended upon an indication on the map that it was to be fifty feet in width. By the building of his house and fence, Hayward practically located the line. That location made the street at this point between forty-seven and forty-eight feet wide, instead of fifty feet, as would appear from the map. So that when the street was publicly laid out so as to be used by the public, it would appear to have been laid out forty-seven feet and a fraction of a foot in width at this point; and that was the street that Avas actually used by the public from that time to the present. So far as appears, there has never been a claim by any one that this street as actually laid out and used by the public was not the street contemplated by the parties by the making and filing of this map. Thus, after fifty years of continuous use of this property by the appellants and their grantors, it would seem to be quite certain that neither the original owner of the property who had made and filed this map, nor any of the grantees of the land laid out upon the map could have compelled the appellants to remove their house erected upon these íavo feet of the land that had been originally laid out on the map as Waverly place. Their rights Avould clearly have been extinguished by non-user, and the right to this two feet free from the easement acquired by adverse possession. The occupation of this íavo feet of Waverly place by the building of a house upon it and the fence inclosing it, was adverse to the original grantor and to the grantees of other lots; and as between these private individuals, there was no objection to a destruction of the implied easement by non-user followed by adverse possession for a period of fifty years. (Snell v. Levitt, 110 N. Y. 595 ; Woodruff v. Paddock, 130 id. 618.) If necessary to sustain a right thus acquired, the execution of a grant by the owner of the property who made and filed the map and who had conveyed it to the appellants’ grantor would be presumed; and as there is no evidence that any other lots were sold or that other persons acquired any right to this street, there is nothing to prevent the presumption of the execution and delivery of such a grant. The rights of the public depend upon a dedication of this street by the owners of the fee and its acceptance by the public. This two feet of Waverly place had never been actually laid out and used by any one as a street. There had, therefore, been no dedication of it to the public, and there is no evidence that the public had ever acquired the right to use Waverly place except as it was actually laid out and used. The only evidence of any public act in relation to the street is the filing of the map on February 5, 1880, by the authorities of the city of New York, and that map indicated that Waverly place was discontinued and closed by the commissioners. Thus, the only indication of public action was that the commissioners had determined to discontinue this street.

Subsequently the city laid out a street which coincided with Waverly place as originally laid out on the Findlay map, being fifty feet in width, and in this proceeding it seeks to acquire the title to the fee of all of this piece of land for the purposes of a street. If the views before expressed are correct, neither the city nor the public have ever acquired any right to use this portion of Waverly place inclosed by the appellants, nor is there any existing right in any of the owners of the adjacent lots to compel these appellants to restore the street to its original width as laid out upon the original map. That being so, it would seem to follow that when the city attempted to take the appellants’ house and property thus inclosed and occupied by him for nearly fifty years, they were bound to pay him the value of the property taken, and the commissioners were wrong in refusing to make a substantial award for the property. If this whole street had been closed immediately after the filing of the map, and had never been used by the public as a street, but had been exclusively used by the owner of the fee adversely to all others interested in the premises for fifty years, the city could not, in a proceeding to enforce the title to the land, claim that, by virtue of the making and filing of this map fifty years before, the public had acquired such an interest in the street that they could take it from those who had owned and occupied it without compensation; and where, instead of closing the whole street, only a portion of it had been inclosed by the owner of the fee and occupied for the period specified, there seems to be no reason why the public should now be entitled to the property without making compensation.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the proceeding sent back to the commissioners with directions to ascertain and award to the appellants the value of this property.

Patterson, McLaughlin and Hatch, J J., concurred; O’Brien, J., dissented.

Order reversed, with ten dollars costs and disbursements, and proceeding sent back to commissioners.  