
    Matter of East One Hundred and Thirty-fifth Street.
    (Supreme Court, New York Special Term,
    December, 1901.)
    New York city — Award to unknown owners in street opening — Bight of abutters to maintain railroad tracks in E. 135th St.
    An award in proceedings taken by the city of New York to condemn land for a street should be made to the persons who owned the land when title to it vested in the city, but where owners of the lands on both sides of a street, running east and west, after conveying everything but the lands in the street, convey before confirmation of the report of the commissioners the lands on the south side of the street to the mesne grantee “ together with all right of any nature or kind * * * in and to the adjacent streets and avenues,” it is not so certain that the mesne grantee is not entitled to an award made for the lands taken on the north side of the street as to render it improper for the commissioners to make that award to unknown owners.
    Evidence deemed insufficient to show that certain abutting owners on E. 135th St., New York city, had a right, at the time when title vested in the city in 1896, to maintain in that street railroad tracks for the passage of steam or other carriages, under a deed from Gouverneur Morris made April 28, 1848.
    Motion to confirm report of commissioners of estimate and assessment.
    John Whalen, Corporation Counsel, for confirmation of report,
    Thomas S. Bassford, for claimant.
    Charles Stewart Davison, for owners.
    Henry H. Sherman, for claimant Jordan L. Mott.
   Scott, J.

A motion is made to confirm the report of commissioners of estimate and assessment. Various objections are made, some of which merit discussion. The street, as legally opened, is eighty feet in width, including an old highway, never legally opened, but dedicated to public use, fifty feet in width, the thirty feet additional width consisting wholly of land lying along the northerly side of the old highway. Under the statutes and the proceedings taken by the city authorities, the title of the property included within the lines of the street vested in the city on September 1, 1896, on which date the property on both sides of the street belonged to the claimants Belmont and Lnttgen; they, therefore, became at that time entitled to the award to be made for so much of their property as was taken for the street, consisting of a plot numbered one on the commissioners’ map, of only nominal value because theretofore dedicated to public use as a highway, and to lots numbered on said map 16, IT and 18, lying wholly north of the center line of the old highway, and also north of the center line of the new street. Substantial awards have been made for two of these lots to unknown owners, .the third constituting part of another intersecting dedicated street. The claimants Belmont and Lnttgen insist that their right to receive these awards is so clear that the report should be returned to the commissioners, with instructions to make the award to them. As has been said, Belmont and Lnttgen owned the plots when title vested in the city; this gave them the right to receive the award therefor, unless they have since conveyed away that right. That they have so conveyed it is insisted by the Harlem Transfer Company, also a claimant. After the title had vested in the city, and while the condemnation proceedings were progressing, Belmont and Lnttgen conveyed the land on both sides of the street to the Buena Vista Realty Company, expressly omitting from the deed all lands within the street. This deed left Belmont and Lnttgen still entitled to receive the awards for the lands taken for the street. On February 1, 1898, the Buena Vista Realty Company conveyed to the Harlem Transfer Company the land lying on the south side of the street, “ together with all the right of any nature or kind of the party of the first part in and to the adjacent streets and avenues,” and, on the same date, Belmont and Luttgen, by a full covenant warranty deed (except a covenant of seizin) also granted and released to the Harlem Transfer Company the same premises' by the same description, “ together with 'all right of any nature or kind of the party of the first part in and to the adjacent streets and avenues.” The contention of the Harlem Transfer Company is that this latter deed operated as an assignment of the right to receive the awards for the property taken for One Hundred and Thirty-fifth street, that right being the only interest which the grantors then had in that street, or in the property described in their deed. Without now expressing any opinion as to the rights of the respective claimants to these awards, it is apparent that the right of Belmont and Luttgen is not so obviously clear as to justify an instruction to the commissioners to make the award to them. Magee v. City of Brooklyn, 144 N. Y„ 265. As the award now stands, the right to receive it can be judicially determined in an action brought for that purpose. Greater New York Charter (L. 1897, ch. 378), § 1001.

' A further claim is made by Belmont and Luttgen, that the commissioners have not made a sufficient award for the ex-tinguishment of a supposed right, on the part of the abutting owners, to lay railroad tracks on or across that portion of the old highway, upon which the property formerly owned by them abuts. The property in question, together with other adjacent property, formerly belonged to Gouverneur Morris, who, on April 28, 1848, conveyed it to Jordan L. Mott. Morris’ deed conveyed a tract of land, bounded on the west by low-water mark on the Harlem river, and on the north by the property of the Harlem Railroad. It referred to a map on file in the office of the county clerk at White Plains, dated June 4, 1845, and made by Andrew Findlay, surveyor. The deed excepted and reserved out of the plot of ground included within its metes and bounds “ the streets laid down on said map and the two lots conveyed by the said Gouverneur Morris to Joseph Lodge,” and granted to the party of the second part, his heirs and assigns forever, “ the right and privilege to lay down and keep on any of the land herein excepted or referred to as laid out along the line of and adjoining the Harlem Railroad for a street, a railroad track or tracks for the passage of steam or other carriages, it being stipulated that such use thereof shall be in such manner as not to prevent the use of said street of other persons according to the design with which it was laid out.” The map referred to shows the property as intersected by three streets running at an angle approximately a right angle, to the land of the Harlem Railroad Company, Mott street, Orange street and Cherry street, the second of which, afterwards known as Edsall street, is now part of One Hundred and Thirty-fifth street. On the map these streets are uncolored, the land between them being colored green. The map also shows an uncolored strip of land running along the southerly side of the Harlem Railroad property of unequal width, beilig apparently sixteen feet wide in front of the westerly portion; and soméwhat wider in front of the easterly portion of the land conveyed. This strip of land is not designated by name as a street, although, from the fact that it remained uncolored, it may be assumed that it was intended to be excepted from the grant. The deed itself bears internal evidence that it was the intention of the grantor to reserve this strip as a street. The boundary line of the property conveyed runs along the southerly side of the Harlem Railroad “ until it comes to a point in the side of the said railroad adjoining the said lot heretofore conveyed to the said William Findlay * * * thence south 39 degrees 15 minutes East along the said lot heretofore conveyed to said William Findlay crossing a street the southeasterly side of which is fifty-four feet from the centre line of said railroad.” The description of the lots excepted from the deed as having •been previously conveyed to Joseph Lodge is by number as 7 and 8 on the map, measuring when taken together fifty feet front on said street adjoining the railroad.” ■ A comparison of the deed with the map shows that the street through which the course above quoted runs, and the street upon which lots 7 and 8 front abut, is the uncolored strip of land above referred to, lying between the railroad and the property colored green upon the map. There can, therefore, I think, be no doubt that this uncolored strip of unequal width, running along the whole length of the property, and along the land of the Harlem Railroad, was, although not entitled a street, intended by the grantor to be reserved as a street, in the same manner that the other named streets were reserved. It seems to be equally clear that it was along .this street that he conveyed the right to lay down tracks. The right is to lay down and keep the tracks on any of the land herein excepted or referred to as laid out along the line of and adjoining the Harlem Railroad for a street.” This description exactly fits the strip already referred to and does not fit any other street shown on the map, for none of them are laid out along the line of and adjoining the Harlem Railroad. Consequently no right was- given to lay down railroad tracks on Orange street, now part of One Hundred and Thirty-fifth street, except across the end thereof at its intersection with the unnamed street laid out along the Harlem Railroad. Jordan L. Mott, on September 22, 1852, conveyed to the Hew York & Harlem Railroad Company, a portion of the property thus acquired by him. The plot so conveyed ran along the line of the railroad from the Harlem river to Smieman (formerly Cherry) street, extending back from the railroad a sufficient distance to include the intersection of Edsall (formerly Orange, now One Hundred and Thirty-fifth) street, with a street running along the railroad, thus including the only part of Orange street as to which his grantor Morris had given the right to lay down and maintain tracks. This deed excepted and reserved the streets shown on the map attached to the deed, and granted the right to lay down and keep tracks “ on any of the land herein excepted or referred to as laid out along the line of and adjoining the line of the lands of the party of the second part.” By this deed, therefore, Mott conveyed to the railroad company all the right that he himself had acquired from Morris, to lay down and maintain railroad tracks across Orange (now One Hundred and Thirty-fifth) street, at its intersection with the unnamed street laid out, and excepted from the deed along the line of and adjoining the railroad company’s land. In 1864, Mott conveyed to Francis G-. Cairns the remainder of the property which he had acquired from Morris, and the claimants Belmont and Luttgen derive their title, by a series of mesne conveyances, from Cairns, and obviously, unless Cairns acquired in some way the right to lay down tracks, no such right has been acquired by the claimants. As has been pointed out, Morris never conveyed to Mott the fee to the streets shown as laid out on the map referred to in his deed, but expressly excepted them from'the grant. Mott, therefore, acquired no greater interest in' them than accrues to the abutting owner of land lying along a dedicated highway. This certainly does not include the right to fcy down and maintain railway tracks. Whatever right of that nature, he obtained, was limited to the irregular street laid out and shown upon the map along and adjoining the land of the railway. This right or privilege he conveyed to the railroad company in his conveyance of the land lying along the railroad company’s property. He had never acquired the right to lay tracks along Orange, or Edsall (now One Hundred and Thirty-fifth), street, or across it except at the intersection with the street lying along and adjoining the railroad. Consequently when he made his deed to Cairns, he had no rights left to lay down tracks which he could either exercise himself, or grant to another. He seems to have been conscious' that his power to grant such right was at least doubtful. The deed to Oairns is accompanied by a map upon which the property conveyed is colored yellow, and the streets formerly known as Orange and Cherry are colored blue, and Orange or Edsall street is marked “ highway.” The deed describes the portion colored yellow by metes and bounds and them grants “ All the right, title and interest of the said party of the first part to the fee of the pieces of land colored blue on the said diagram, subject to any right over, upon and to the same acquired by any party or parties whatever, and reserving the right of way over and upon the parcel colored blue and designated ‘ highway ’ on said diagram as a road or highway, but giving and granting to the party of the second part all the right, title and interest which the said party of the first part may have to lay an iron track for a railroad on the said piece of land designated highway.” It is to be noted that the attempted grant of the right to lay tracks on so much of Orange street, as is shown upon the diagram attached to the deed, is expressed in very guarded language. It does not even assume that the grantor then had any such right which he could transfer to his grantee, but merely undertakes to give any right which said grantor may have.” In point of fact, as has already been pointed out, he had not then, and never had, any right to lay down tracks upon that portion of Orange or Edsall street which was affected by and referred to in his conveyance to Oairns. Consequently Oairns took no such right by his deed, and the claimants, who trace their title through Oairns, have not acquired, and never possessed the right to lay down and maintain tracks on that portion of One Hundred and Thirty-fifth street upon which the property formerly •owned by them abuts. The commissioners were right in not including in the award any sum for the destruction of this supposed right, which in, fact never existed. The objections raised by other property-owners do not involve any question as to the principle adopted by the commissioners in making their awards and assessments, but are directed solely to criticisms of the amounts of certain assessments for benefit. After a careful examination of the testimony and consideration of the briefs, I am unable to say that the assessments complained of are so obviously unfair and excessive as to call for interference by the court.

All the objections must, therefore, be overruled and the motion to confirm the report granted.

Objections overruled and motion granted.  