
    In the Matter of Opening Ninety-Fourth Street, Etc.
    (Supreme Court, New York Special Term,
    December, 1897.)
    Condemnation of the fee of a street — Private easements — Measure of damages.
    Where the owners of land abutting upon a street, shown on the city map of New York, authorized by chapter 115 of the Laws of 1807, and subsequently projected easterly to the exterior street, adopted by the city common council in 1859, have, ' by their conveyances, among each other so dealt with the fee in the street, that, while retaining title to it, they have reciprocally created private easements in it, they become, in the absence of the requisite clear proof of ■ a dedication of the fee in the street to the public use, entitled, upon an absolute condemnation of it by the city, to damages which, while necessarily more than nominal, cannot be the full value, but only such value as it has, subject to the existing private easements.'
    Pbooeedings to condemn land for street opening purposes.
    William C. De Witt, for Henry W. Sage.
    John C. Shaw, for property owners assessed.
    Truman H. Baldwin, for Hancke Heneken.
    Francis M. Scott, counsel to the corporation (John P. Dunn, of counsel).
   Beekman, J.

The commissioners have awarded to the owners of the' fee of the land included within the lines of Ninety-fourth street, between First avenue and high-water mark, the full value of the property. Objections have been filed to the report by the city and other parties affected by the assessment which has been laid to meet the awards, and the questions thus raised have been,1 discussed on this motion, which is made to confirm the report.,

It is claimed by the objectors that only nominal awards should have been made on the ground that there has been an actual dedication of the land lying in the street to public use, or, if that be not so, that the land has been subjected to the charge of private easements in favor of certain persons owning property abutting on the street west as well as east of the First avenue, which are coextensive with the ordinary uses of a public street. As the adoption by the city of Ninety-fourth street from First avenue to the exterior bulkhead line as a street which it was proposed to open at some future period is called in question, it is sufficient to say that the proofs clearly show that it was laid down on the commissioners’ map authorized by the act of 1807, extending to the shore line of the river, and was subsequently projected to the exterior street adopted by the common council in 1859, as appears from a map known as the Southard map, which was approved by that body. It appears that prior to the conveyance next referred to one Edward Roberts owned a large parcel or tract of land, which included the premises in question and other property adjacent thereto. In 1861 he conveyed to Henry W. Sage and William G. Grant the' following parcels, namely: The block bounded by First and Second avenues, Ninety-fourth and Ninety-fifth streets, and another piece bounded by First avenue on the west, Ninety-fourth street on the south, and the Harlem river on the north and east. The deed, also, in terms, conveyed “all the right, title and interest of the parties of the first part in and to the adjoining streets to the center thereof.” The title to the northerly half of Ninety-fourth street thus vested in Sage and Grant, while the title to the southerly half continued in Roberts, together with the adjacent land to the south of which he was the owner.

In 1876 an action for the partition of the- property so conveyed was brought by Sage, which resulted in a judgment under which an actual partition was made, and pursuant thereto quitclaim deeds were exchanged between the parties in conformity with the division so made. In the division a parcel on the north side of Ninety-fourth street, extending from First avenue east to the river,, was allotted and conveyed to Sage. The land lying in Ninety-fourth street, however, was not the subject of allotment or conveyance, the description of the property partitioned in each case carrying the bounds to the sides of the streets and avenues, which are explicitly named, no mention being made of the interests which both parties doubtless enjoyed in common in the land within the street to .the center thereof.

In 1886 Roberts conveyed the land' owned by him on the south side of Ninety-fourth street to one Wijlenbrock, bounding it by the side of said street, and granting also in terms all his right, title and interest to the southerly half of said street, and immediately thereafter Willenbróck conveyed an undivided half of the property thus acquired to one Hancke Hencken.

It is claimed that the parties thus owning the fee .of Ninety-fourth street have dealt with it in such a way as 'to work a dedication of the same to the public use, and the cases of the Matter of Thirty-ninth Street, 1 Hill, 191; Wyman v. Mayor, 11 Wend. 486, and Matter of Lewis Street, 2 id. 472, are relied upon to sustain this contention. It is true that these cases apparently hold that where a property owner sells a lot of land, bounding it upon a street, which was laid out on the map of 1807, a dedication of the land lying in the street to. the public use for street purposes results, which leaves in the owner the barren fee, entitling him to only nominal compensation when the street is legally opened. But the courts have since discredited these cases to an extent which very seriously impairs their authority.

The whole subject is elaborately • discussed by Mr. Justice In-graham in the Matter of One Hundred and Sixteenth Street; 1 App. Div. 436, where, in giving the opinion of the court, he says (p. 445): “ We have now three late decisions of the Court of Appeals, which taken together, we think establish certain rules that should be applied to cases of this kind. Thus, we may say that a grant of land bounded upon' a street of which the fee is in the grantor, whether by the terms of the grant the fee of the street would be included or not, does not of itself amount to a publid dedication of the street; that the .owner of property abutting on a street, who owns the fee of the street subject to an easement granted to private individuals, is entitled to substantial damages when the fee is taken by a municipality for a public street; that where there exists a private easement to use the street, the owner of the fee of the street subject to such easement is entitled to nominal damages only, where the fee is not taken, but only an easement for the public, as no greater right was taken by the public than he had before granted to his grantees; and where the owner of property on both sides of a street or highway has conveyed all of his property bounded on the street to grantees who have thereby acquired an easement in the street for use as a streef, he is entitled to the value of the property taken subject to the private easement which already incumbers the property, which value is merely nominal.. See City of Buffalo v. Pratt, 131 N. Y. 299; Matter of Village of Olean v. Steyner, 135 id. 346, and Matter of Adams, 141 id. 300.”

I am of the opinion that upon the facts of this case disclosed by the record there has not been a dedication of the land in question to the public use. Whether there has been a dedication or not is a question of intention, and the evidence of such an intention must be clear and unequivocal to support such a conclusion. The claim rests substantially upon the reference to the street contained in the deeds conveying the adjacent.lands, but as we have seen this is not now considered sufficient. Matter of One Hundred & Sixteenth Street, supra; Matter of Department of Public Works, 48 Hun, 488.

¡But the land in question is affected by certain private easements in favor of the abutting property owners which spring out of the relation established' by the acts of the parties in dealing with the abutting property. Matter of Eleventh Ave., 81 N. Y. 436. In that case the court says (p. 441): “ But the authorities cited fully establish that, without making such a dedication to the public a grantor may, by selling lots and describing them as bounded on a street running through his own land, create an easement in the land called a street in favor of his own grantees, and that although the fee of such land remains in him it is incumbered by that easement.”

The easement in such a case is one which extends over the entire width of the street, and may be defined as a perpetual right to the free and unincumbered use of the so-called street for light, air and access. Where the grantor is the owner on both sides of the street, the grant of this easement in favor of the grantee of one or more parcels is not exclusive, but the land lying ¡within the lines of the street become chargeable with a similar easement in favor of his subsequent grantees of other parcels conveyed in like manner, even though in the previous deeds, the grantor has conveyed his right, title and interest in the adjacent street to the center line of the same. The land within the street lines so granted is to be deemed •'as conveyed subject to the uses for which the so-called, street or' road exists-, and, therefore, subject to the right of the grantor and his subsequent' grantees owning or acquiring the remaining'abutting parcels to use the same for such purposes. In other words, as between the grantor and his grantee, although not with respect to the public, .the land lying within such limits becomes impressed with all the ordinary characteristics of a street. Bissell v. N. Y. Cent. R. R. Co., 23 N. Y. 61.

When, therefore, Roberts conveyed to Grant and Sage the land east of First avenue on the north side of Ninety-fourth street, in the manner above stated, together with his right, title and interest in" the adjoining .street to the center thereof, they acquired an easement of the nature above described in all the land lying within the limits of Ninety-fourth street east of First avenue, and the land conveyed to them within - the. street, lines became also impressed with a similar use in favor of Roberts, who continued to own the property on the south side of the street and the remaining land within the street lines.. Such, also, I think, was the manifest intention of the parties as disclosed by the situation of the property and their manner of dealing with it. When Roberts subsequently conveyed his remaining property east of First avenue to Willenbrock, the latter succeeded to his grantor’s rights in the street, and also, became subject to the burden of the easements therein in favor of Grant and Sage, so that the situation now. is that Sage, who seems to have acquired the Grant interest, is the owner of the north half of "the street in severalty impressed with the easement of Willenbrock and his cotenant Hencken, while the latter are the owners of the south half, of the street subject to; a similar easement in favor of Sage. They are, therefore, entitled to substantial damages for the taking of the fee, but only such as may be measured by the value of the fee subject to the private easements referred to. Matter of One Hundred & Seventy-third Street) 78 Hnn, 487. In the case cited the court says (p. 491): “In the case of the City of Buffalo v. Pratt, 131 N. Y. 293, it was distinctly held that where the ownership of the fee of land in the street is taken from the adjoining owner by legislative authority, the .owner is entitled not merely to nominal damages, but to such substantial damages as may be ascertained by measuring the effect upon the. value of his remaining property of the loss of the fee of the street. And this rule was based upon the fact that the ownership of the fee of the land in the street by an adjoining owner vests in him certain rights of which he is deprived by the taking of the fee of .the' land,. even for street uses. This principle seems to cover the case at bar.”

It also covers the case under consideration. In determining such damages it must, therefore, be considered that the land taken is incumbered with an easement which prevents exclusive occupation, and forbids any surface construction or other use inconsistent ■ with the uses of a right of way. The case at bar is not to be confounded with cases where the public authorities are seeking to condemn a public easement only. Here, as in other cases in Hew York city, the fee is sought to be taken. The distinction is pointed out by Judge Finch in Village of Olean v. Steyner, 135 N. Y. 341, where he says (p. 347): “ In the case of city streets,-where, under the statute the fee is taken, we have recently held that substantial damages should be awarded (City of Buffalo v. Pratt, 131 N. Y. 297), but here the fee is not taken, but an easement for a highway only, which is merely the equivalent of the private easement displaced. The change alters the control but does not increase the biirden.”

It is claimed that under the authority of the Matter of Adams, 141 N. Y. 297, the owners here are entitled to only a nominal award, but an examination of the opinion in that case shows that the court apparently proceeded on the assumption that the proceeding in hand involved a mere exchange of a public for a private easement, and not the transfer of the fee.; and the case of Village of Olean v. Steyner, supra, is quoted in support of the reasoning of the court. It can, therefore, hardly be taken as overruling the authority of City of Buffalo v. Pratt, supra, which Judge Finch carefully distinguishes from the one then Under consideration. Furthermore, it has been held in this department that the facts of the case in the Matter of Adams were of such a character as to render it inapplicable to cases similar to the one under consideration here. Matter of One Hundred & Seventy-third Street, 78 Hun, 487.

The record in the case at bar shows that the commissioners treated the easements which affected the land lying within Minety-fourth street as practically nonexistent, and awarded the full value of the fee as if it were not so incumbered. In so doing they adopted art erroneous principle, which, requires the court to refuse the motion to confirm, and to return the report to them for reconsideration. While holding that the 'owners are entitled to more than a mere nominal award, I also hold that the measure of damage must be the value of the property taken subject to the private easement referred .to, or as is said by Mr. Justice Van [Brunt in the Matter of One Hundred & Seventy-third Street, supra, “ such damages as may be ascertained by measuring the effect upon the value of his (the owner’s) remaining property of the loss of the fee of the street.”

The claim that the easements in question have been lost by adverse possession is unsupported by the facts.and the law of the case. Matter of Department of Public Parks, 53 Hun, 556.

In concluding, I may also say that in my opinion, owing to the manner in which the property owned by Sage and Grant was acquired, held and partitioned by them, similar easements over Hinety-fourth street east of First avenue have attached in favor of their grantees of portions of the lands acquired by 'them from Roberts between First and Second avenues.

The motion to confirm is denied, and the report remitted to the commissioners for their further action, in ' conformity with the views here expressed.

Ordered accordingly.  