
    Matter of the Opening of a New Avenue from One Hundred and Seventy-eighth Street to One Hundred and Eighty-first Street, Midway Between Fort Washington Avenue and Haven Avenue (to be Known as Pinehurst Avenue, When Opened).
    (Supreme Court, New York Special Term,
    May, 1910.)
    Eiminent domain — What constitutes taking of property so as to entitle to compensation — New appropriation of soil of street — Easements of non-abutting owners.
    Where a lane, over which a right of way exists by grant in favor of abutting owners, is taken in condemnation proceedings for a city street, the abutting owners are not entitled to compensation for loss of the easements of light, air and access as the street when opened will afford all that the easements represent, and if the street should be closed compensation for the loss of the easements will be made.
    An easement in favor of non-abutting owners becomes extinguished with no right to compensation, if, through the closing of the street, access over the bed of the lane he afterward denied them; and they must be compensated for the taking of their easement.
    This proceeding was brought for the opening of a public street running north and south from One Hundred and Seventy-eighth street to beyond One Hundred and Eighty-first street, west of Fort Washington avenue. The portion of it between One Hundred and Eightieth and One Hundred and Eighty-first streets embraces and laps over part of an old private road which formerly ran from the dock at the foot of One Hundred and Eighty-first street east, then south, and then again east to Fort Washington avenue. Other parts of this old road had previously been taken in condemnation and now constitute, respectively, portions of One Hundred and Eightieth and of One Hundred and Eighty-first streets. This old road connected with another old road which was made a public street some years ago under the name of Northern avenue. Certain property owners fronting on the latter avenue, but at some distance from the proposed improvement, appeared in this proceeding and claimed substantial awards, on the ground that they had title from the common (ancient) owner by deeds which contained express grants of the easements of access and right of way over the whole of the old road, a part of which was now being condemned. The city claimed that the easements did exist, but that their owners were entitled to only nominal awards; the fee owner claiming that the easements had no existence and had been extinguished by the taking of a part of the old road in the One Hundred and Eighty-first street proceeding in which these parties received an award; whereas the non-abutting easement owner claimed that these easements still existed, with reference to the land now taken, that they constituted “ property ” and that a substantial award should be made for them. The commissioners made a specific finding, that the easements of the non-abutting claimants did in fact still exist, and that these easements diminished the value of the lane “ by a sum representing the value of said easements.” They declined, however, to make an award for them; and the easement owners oppose confirmation of the report in that respect.
    Chas. A. Malloy, Assistant Corporation Counsel, for city on motion to confirm.
    Benno Lewinson, for easement owners, opposed.
    H. G. Smith, for fee owners.
   McCall, J.

Part of the property taken in this proceeding was delineated .as a lane, over which a right of way existed by' grant in favor of owners whose property abutted upon the street (new avenue) now to be opened, and also in favor of owners whose property does not so abut -and yet who still have access to the lane over other streets. The awards to the abutting owners have included no item of damage for the loss of the easements in the lane, and properly, since the street when opened affords all that the easement represents (Matter of One ■ Hundred and Sixteenth St., 1 App. Div. 437), and if the street should be closed compensation for the loss of the easements of light, air and access would then be made. Gillender v. City, 127 App. Div. 616; Swain v. Schonleben, 130 id. 521. As to non-abutting owners, however, the statute (Laws of 1895, chap. 1006) apparently gives no right to compensation for the closing of a street (Matter of Grade Crossing, 46 App. Div. 473; 166 N. Y. 169; Matter of One Hundred and Fifty-first street, N. Y. L. J., Feb. 25, 1908, Blanchard, J.) and yet all the interests of these non-abutting owners in the lane — their easement secured to them by grant — have been extinguished in this proceeding, with no compensation or future right to compensation, if through the closing of the street access over the bed of the old lane be afterward denied them. This is not the case of a right of way of necessity for which other streets may be deemed a substitute; it is an easement by grant of actual and additional value, and compensation for the taking of that easement should be made. That this easement has a substantial value has been found by the commissioners, and the finding is expressed in the lessened award to the owners of the fee of the lane. This finding was undoubtedly correct, since I fail to perceive reasonable ground for holding that the easement of these non-abutting owners over the land now taken was affected by the taking of other portions of the lane in other street opening proceedings. As appears, what was then taken was the lane with its easements, so far as covered by the particular proceeding then brought; and the right of access over the remainder of the lane was not affected. The report should, therefore, be sent back for correction of the awards in order that damages may be awarded to the non-abutting owners. So far as complaint is made as to the assessments for benefit, I fail to find grounds for disturbing the report. The block by block ” rule has been substantially followed; and, whilá there is a disparity between blocks in the gross amount of the assessments, and so in the assessments laid for distinct parcels, this is mainly traceable to the difference in the size of the blocks affected. The actual benefits afforded were within the province of the commissioner of assessments to determine, and I am not disposed to disagree with the result reached upon the record before me. The report will be sent back for correction of the awards as noted in this memorandum, to the end that compensation may be made to non-abutting owners for the taking of their easements. In other respects the objections are overruled.

Ordered accordingly.  