
    Frederick P. Forster, Resp’t, v. David Scott, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    
      ■ i. Constitutional law.
    The legislature has nó power under the constitution to enact that whenever land as exhibited upon such map is taken for street purposes at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding. Such a provision deprives . the owner of his right to build on his lot and impairs its value, and to that extent is void as to him, and creates no incumbrance.
    Appeal from a judgment of the New York superior court, general term, granting judgment compelling defendant to accept title and pay $1,000 without costs according to terms of submission of controversy submitted without action.
    
      Rollin H. Lynde, for app’lt; Henry A. Forster, for resp’t.
    
      
       Affirming 44 St. Rep., 212.
    
   O’Brien, J

The question in this case is in respect to the plaintiff’s rights under a contract made by him with the defendant June 18, 1891, whereby he agreed to sell and the defendant to purchase a parcel of vacant land in the city of New York, at a price specified, subject to, but without assuming a mortgage thereon of $4,000. The plaintiff on his part agreed to convey the premises to the defendant by a full covenant warranty deed, sufficient to vest the title in fee simple free from any lien or incumbrance except the mortgage. At the time stipulated in the contract the plaintiff tendered to the defendant a deed in the required form and containing the proper covenants, which the defendant declined to accept for the reason that upon searching the title he had discovered that there was such an incumbrance upon the land that the plaintiff was unable to convey a good title as required by the contract. The facts were agreed upon and submitted to the general term under the provisions of § 1279 of the Code, where it was held that no lien or incumbrance, aside from the mortgage, existed or attached to the land by reason of the. facts so stated, and directed judgment for the plaintiff that the defendant accept the deed tendered and pay the purchase price. The facts, st> far as they are material to the point involved, are these: On the 18th of October, 1890, the department of parks of the city of New York, under the provisions of chapter 68JL of the Laws of 1886, filed a map of a proposed street or avenue which entirely covers the plaintiff’s lot. The map so filed complies^ strictly, with respect to form and substance, with all the provisions of law on the subject. The proposed street has not been opened and no proceedings have been taken to open it or to acquire the title to plaintiff’s land by condemnation.

Section 677 of the consolidation act provides as follows with reference to damages for taking lands for such streets when the same are finally opened : “No compensation shall be allowed for any buildings, erection or construction which at any time subsequent to the filing of the maps, plans, or profiles mentioned in § 672 of the act, may'be built, erected or placed in part or in whole upon or through any street, avenue, road, public square or place exhibited upon such maps, plans or profiles." The plaintiff’s vacant lot derives almost its entire value from the fact that it is possible to use it for building purposes. -The facts, therefore, present two-questions:

(1) Whether, assuming the statute to be valid, a lien or incumbrance was created and attached to the land in question by the filing of the map by the park department, and (2) whether the legislature - had .power under the constitution to enact, as it virtually did, that whenever land thus exhibited upon the map is taken for street purposes,' at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding.

An incumbrance is said to import every right to, or interest in, the land,' which may subsist in another, to the diminution of the value of the land, but consistent with the power to pass the fee by a conveyance. 1 Bouvier’s Law Diet, p. 696 ; 2 Greenl. 'Ev., § 242 ; 3 Washburn on Real Property, 659-, § 14.

Any right existing in another to use the land, or whereby the use byt-he owner is restricted, is an incumbrance within the legal meaning of the term. Wetmore v. Bruce, 118 N. Y., 319 ; 28 St. Rep., 687.

It was conceded by the general term that the public authorities might, or might not, appropriate the land according to their pleasure, notwithstanding the filing of the map; and further, that in case the owner, after the map was filed, made improvements upon it, he did so at the peril of losing the enhanced value of the land resulting therefrom. These propositions seem to be correct, but we are constrained to differ with that court in the conclusion that such a situation does not impair the value of the property and amount to an incumbrance within the meaning of the contract. If the law was valid, it virtually imposed a restriction upon the use of the property, because it enacted that it could not be used for building purposes, except at the risk to the owner of losing the cost of the building at some time in the future. We are also constrained to differ with the general term in regard to the validity of the statute in so far as it enacts that the owner of land exhibited upon the maps is not entitled to compensation for improvements subsequently made. This statute is-of somewhat ancient origin, and it was said in some of the cases that it was first enacted at the solicitation of the landowners in order to enhance the'value'of théir property. In re Furman Street, 17 Wend., 658; In re Wall Street, 17 Barb., 639; Seaman v. Hicks, 8 Paige, 660. ,

However that may be, in the aspect in which the question.is now presented, we think it is, in conflict with the provisions of the constitution for the protection and security. ■ of private property. The constitutional guarantees against the appropriation of private property for public use, except upon just compensation, as well as that against depriving the owner of its enjoyment and possession without due process of law, have been the subject of much judicial discussion in the manifold aspects in which the questions have been presented in the numerous cases. These provisions have been so thoroughly expounded and their application, meaning and practical scope so minutely explained that it would be very difficult to suggest now any views which could be called new, and a restatement of propositions, so often before sanctioned by' courts and judicial writers,.is quite needless. This case is governed by a few principles so well- settled and understood that they are elementary, and nothing can be added to their force or application by illustration or extended discussion. The validity of a law is to tie determined by its purpose and its reasonable and practical effect and operation; though enacted under the guise of some general power, which the legislature may lawfully exercise, but which may be and frequently is used in such a manner as to encroach, by design or otherwise, upon the positive restraints of the constitution. What the legislature cannot do directly, it cannot do indirectly, as the constitution guards as effectually against insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its.value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. All that is beneficial in property arises from its use and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary, in order to render a statute obnoxious to the restraints of the constitution, that it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner. Though the police and other powers of government may sometimes incidentally affect property rights, according to established usages and recognized principles familiar to courts, yet even these powers are not without limitations, as they can be exercised only to promote the public good, and are always subject to judicial scrutiny. Wynehamer v. People, 13 N. Y., 378 ; People v. Budd, 117 id., 1; 26 St. Rep., 533; Gilman v. Tucker; 128 N. Y., 190; 40 St. Rep., 71; People, v. Albertson, 55 N. Y, 50; In re Jacobs, 98 id., 98; People v. Otis, 90 id., 48; People v. Gillson, 109 id., 389; 16 St. Rep., 185 ; Munn v. Illinois, 94 U. S., 141; Henderson v. Wickham,, 92 id., 259 . Id., 275 ; Brimmer v. Rebman, 138 id., 78; Chicago, etc., v. Minnesota, 134 id., 418; Bohan v. Port Jervis G. L. Co., 122 N. Y, 18; 33 St. Rep; 246; Cooley on Con. Lim. (6th ed.), 207, 670.

As the plaintiff in the case at bar was virtually deprived of the right to build upon his lot by the statute in question, and as this circumstance obviously impaired its value and interfered with his power of disposition, it was to that extent void as to him and created no incumbrance upon it.

It follows that the judgment of the general term was correct in its result, though we have not been able to concur in the grounds upon which it was made, and, in affirming its action, we have preferred to place our reasons upon other grounds.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  