
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title to That Part of Jerome Avenue Lying Between Van Cortlandt Park and That Part of Jerome Avenue Legally Opened June 21, 1870, Extending from Woodlawn Road to Mosholu Avenue. (Action No. 1.) William B. Opdyke and Charles W. Opdyke, Individually, and as Trustees, Respondents, Appellants; Woodlawn Cemetery and Others, Respondents.
    First Department,
    June 21, 1907.
    Eminent domain — value of easements owned by city deducted from award to owner of fee on condemnation.
    The sale on a partition made in 1871 between the heirs of Margaretta Sheridan of lands embracing portions of Mile Square road conveyed to the grantee so much of the fee of said road as was owned by said heirs.
    While the purchaser on said partitionobtained a fee in the.bed of the westerly half of Mile Square road, when the city of New York acquired property abutting On the west side of Mile Square road for Van Cortlandt Park in the year 1888,-it, in its corporate capacity, acquired an easement in light, air and access over the westerly half of Mile Square road, and on a subsequent condemnation to acquire the fee of said road (now embraced in Jerome avenue) the owner is not entitled to the full fee value thereof, hut only to the value of the fee as subject to the easement in light, air and access formerly acquired by the city of New York. ,
    Separate appeals by The City of New York and by William B. Opdyke and another, individually and as trustees, 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 29th day of November, 1905, confirming the report of a referee and directing the payment of certain awards.
    
      John P. Dunn, for The City of New York, appellant.
    
      Joseph A. Flannery, for claimants Opdyke and others.
    
      Arthur H. Wadick, for claimants Sheridan.
   Scott, J.:

The present appeal brings up for determination the question as to who should receive an award amounting to $13,544.71-for a piece of land designated in the report' of the commissioners as parcel No. 2, and which has been awarded to Peter Sheridan and others, heirs of Margaretta Sheridan, deceased. When the report came before the court for confirmation, the city of Mew York and the appellants Opdyke both claimed that the awards.should be made to, them, as also did one-Tier (not represented ori this appeal), who claimed a part of-the'award. The court thereupon confirmed the report so far as concerned the amount awarded for the plot, but referred it to a referee “ to take proof and determine the various claims of title" to and interest in, or ownership' of the Parcel known' as Mo. 2 * * *' on the damage ■ map attached to said report * . * * and that said referee report his opinion thereon with his findings of fact and conclusions of law.” The referee after taking much evidence, both oral and documentary, made a most exhaustive report, in which he concluded, and so reported, that parcel Mo. 2 is owned by Peter Sheridan and others, heirs at law of Margaretta Sheridan, deceased, in fee simple absolute, -'Upon the coming in of his report the court confirmed it and directed that the whole of the award for said parcel Mo. 2, with interest, be paid to -the said heirs of Margaretta Sheridan, deceased.

This proceeding is for the acquisition, of title to -a part of Jerome avenue, upon which abuts Van Oortlandt Park, owned by the city of -Mew York, and a portion of the park area is'included in the area of assessment for benefit and a sum amountingto $17,742.40 has been-levied upon the city as owner of said park. The total awards amount to $37,038.08, and the whole amount thereof is to be assessed upon the property benefited. Parcel Mo. 2, over which the present controversy has arisen, constitutes a part of the westerly half of what was once-known as the Mile Square road, an old road which, in the year 1870, and for many years prior thereto, had been an opened and traveled highway in the county of Westchester. The land abutting upon it, now owned by the city of Méw York, and constituting a part of Yan Oortlandt Park, was acquired by Thomas O’Brien in the-year 1827, by a deed which described the property as “running'along” said Mile Square road, under which, as is conceded by all parties, he acquired title to' one-lialf of the road, subject tó its use as a public highway. -By his will Thomas O’Brien devised the property to his daughter Margaret (or -Margaretta) .Sheridan for life, with remainder to her heirs. Margaret Sheridan died in 1870, intestate, leaving as her only heirs at law Peter Sheridan, Thomas Sheridan, Edward Sheridan and Mary A. Roemer, the respondents herein. In 1871 a partition suit was instituted between these heirs, in which an interlocutory judgment was entered appointing a referee to sell and convey all the real estate owned by said heirs as tenants in common. The referee caused a map to be made dividing the property into lots or plots, each containing from one and three-quarters, to almost three acres. The plots designated on the map by the numbers 10 and 11 were sold and conveyed by the referee to Joseph J. Potter and were subsequently conveyed to George Opdyke, under whose title the appellants Opdyke now claim.

The first question to be determined is whether or not the referee’s deeds to Potter covered and included' the half of the Mile Square road, and the only doubt upon that subject arises from the map made by the referee and the description contained in his deeds. The map bounded the property by the westerly side of the road, which was not shown thereon, and the- deeds described the lots' conveyed as beginning at the intersection of another road with the westerly line of the road leading, from Williamsblidge t-o Mile Square” road, and continued the boundary “ along the westerly side of said road.” The respondents’ contention, which has been upheld by the referee and the court below, is that in selling the property by the map and the description above noted the referee excluded from his conveyance the westerly half of the Mile Square road, which remained vested in fee in the Sheridan heirs. We are unable to accede to this view. It may be conceded that if nothing appeared except the referee’s map and the description contained in the deeds executed by him it might well be held that he had not effectually conveyed the bed of the road, although even in that case his conveyance would have included such easements in and over the road as would have left in the heirs no beneficial interest and nothing but a bare fee. But the question whether or not the fee of an adjacent street or road passes by. the conveyance of abutting property is a question of intention, which justifies the courts in looking beyond the mere words of description, and considering the situation of the property, the circumstances under which the deeds are made, and the purpose sought-to be effected. (Potter v. Boyce, 73 App. Div. 383; affd., 176 N. Y. 551.)

It is conceded that 'the conveyance to O’Brien included the westerly half of the-road, and that title to. that half passed to-the-Sheridan heirs.. The purpose of the partition suit was to make partition of all the-property owned in common by those heirs, including as "well thefhed of’ the"road as any other real estate. In the complaint, and also in the interlocutory decree awarding partition and directing a sale, the property is described by precisely the same description as that ■contained in .the deed" to O’Brien-,, which coneedédiy passed the fee of the. roadbed to him. Thus it. clearly appears that it was the intention and desire of the parties, the direction of the court "and the. duty of the referee that the roadbed should he sold and conveyed with the'lots which abutted upon it. There is nothing whatever to indicate any purpose on the part of the parties to the suit, the court Or the referee-to exclude or-withhold from the-' sale the title to the roadbed, and no such consequence can he held -to result from the form in which the referee couched liis deeds. (Mott v. Eno, 97 App. Div. 580; 181 N. Y. 346, 383.) We, therefore, conclude that the deeds from- the referee in partition to Potter ' (under.whom the appellants Opdyke hold) included and conveyed the fee of the westerly half of the-bed of the road, and that the Sheridan heirs have no title- thereto. The next question to he considered is as to the conflicting claims of the Opdvkes- and of -the city of New York to be paid the award.- As has been said, the Mile, Square road was opened' and in use as a traveled public highway at least down to' about the year 1870. In the year; 1-867 the Legislature authorized certain commissioners to lay out and acquire an -avenue to' be known-as Central Park avenue. • (Laws of 1867, chap. 400.) There was no express authority in the act to discontinue any existing highway, and none is to be inferred therefrom. The avenue which was laid" out under this act embraces the-Mile .Square road at certain points, -but not at the particular point in -question; Here it ran entirely to the east of the old road, being separated from it by a-narrow strip of land belonging to Woodlawn Cemetery; This. Central Park aventie appears to have been acquired some -time in 1870.or thereabouts1, and to"have been put in nse in or about the yeah 1871. : Thereafter the use. of the Mile Square road by the ptiblie appears to have" been generally, if not wholly, discontinued, and it became to some extent obstructed and permitted to- fall into disrepair. It does not appear, however, that it was ever formally or legally discontinued, or that the owners of the abutting property inclosed it, or exercised any acts of ownership or dominion over it. It is a familiar rule that mere obstructions or encroachments placed upon a public highway (and nothing more is shown in this case) will not affect or diminish the public rights in it. Ho thing will do that except non-user coupled with affirmative evidence of a,clear determination to abandon, and of ■ such determination there is no evidence in this case. It is, however, not very important to determine whether the road was effectually abandoned at this time. The portion of Westchester county comprising the locus in jwwas annexed to the city of New York in 1874, and in 1877 the commissioners of public parks, pursuant to the provisions of chapters 329 and 604 of the Laws of 1874, and 436 of the Laws of 1876, certified a map laying out that portion of the city of New York. Copies of this map were filed in the department of parks, the office of the register of the county of New York and the office of the Secretary of State. On this map is laid out Jerome or Central avenue, the lines of which are coincident with the lines of Jerome avenue as involved in this proceeding, and embraced the whole of the Mile Square road. This map was declared by the statute to be final and conclusive as to the location, ■ width' and grades of the streets, avenues and roads, public squares and places exhibited thereon as well in respect to the mayor, aider-men and commonalty of -the city of New York as in respect to the owners and occupants of lands, tenements and hereditaments within the boundaries thereof or affected thereby, and in respect'to all other persons whomsoever. The bed of the Mile Square road, within the lines of the proposed Jerome-avenue, then became legally appropriated and designated as a public street. (Matter of Mayor, 24 App. Div. 9.) In 1884 the Legislature passed the Public Parks Act designating the land to be acquired by metes and bounds, the land to be acquired for Van Cortlandt Park being-so described that its easterly boundary was designated as the westerly side of Jerome avenue, by which was unquestionably meant the Jerome avenue shown on the park commissioners’ map of 1877, so that the park land was actually bounded by the westerly line of the Mile Square roadbed. (Laws of 1884, chap. 522.) The lands comprised within the limits of Van Cortlandt Park,- as described in the act, included the plots owned by the appellants Opdyke, and which came to them through the referee’s deed to Potter in the Sheridan partition suit. Title to the lands vested in the city on confirmation 'of the report of the commissioners in condemnation on October 23, 1888. .The referee has found that when the abutting property on the west side ■ of Mile Square road was acquired by the city in 1888 for Van Cortlandt Park the abutting owners (the appellants Opdyke) were paid, by their awards, the value of the private easements in the Mile Square road, that value being included in the- awards. He also expresses the opinion that when the city -acquired the title to the abutting property the private easements theretofore existing for the benefit of the private owners ceased to exist “ since the city, could not continue to hold or enforce- such merely private easements after the. rights of the public in said Mile Square road in* a public highway had ceased to exist in 1876 or 1877.” .In this particular the learned referee fell into error because he failed to realize the power of the city in its corporate capacity to acquire property. If the. city purchases or acquires by condemnation real property for a park, a school house, an engine house or'any other corporate purpose it"-takes-the property with the same easements and subject to the same servitudes that a private purchaser would take or assume if he acquired the s,ame property. The position of affairs when the city acquired Van Cortlandt Park in 1888 was that,the Opdykes owned in fee both the property taken and one-lialf of the old roadbéd of Mile Square road as abutted upon it; that the property taken abutted upon Jerome avenue as laid out On the public map of the city and which included all of the Mile Square road ; that the land acquired by the city not only abutted upon Jerome avenue, but was described in the act of the Legislature'and in the proceedings of the condemnation commissioners and their map as bounded by the westerly side of- Jerome avenue.. Upon the plainest principles, while the Opdykes retained the fee title to the bed of what had been the westerly half of the old Mile Sqriare road the city acquired, as appurtenant to the land taken by it, 'private easements of light, air and access over the land laid down as Jerome avenue, including ■ the Opdykes’ half of the Mile Square road, and there can be no question but that such easements in abutting property are as valuable and important to a public park as to any other use to which real property"can be put. The award made for parcel No. 2 obviously and concededly represents the full fee value of the road. “ There would be manifest injustice in awarding the whole compensation to the owner of the fee, in view of the fact that such compensation is ultimately payable by the owners of the adjacent lots in the form of assessments, while no part of these assessments is chargeable to the owners of the fee of the land taken.” (Matter of Eleventh Avenue, 81 N. Y. 449.) The appellants Opdyke have striven to convince us that the rule laid down in the case last cited has been overruled by the Court of Appeals in De Peyster v. Mali (92 N. Y. 262) and by this court in Matter of Brook Avenue (40 App. Div. 519). After a careful reading of these cases we remain unconvinced. In De Peyster v. Mali no question of an assessment appears to have been involved, and the city had taken and paid for the defendant’s property, which abutted upon the Bloomingdale road, and to which the easements had attached. In Matter of Brook Avenue no question of assessment was discussed, and the court found that the appellant’s deed had conveyed to him no present easements. - The court, however, in its opinion referred to the decision in Matter of Eleventh Avenue, saying that the rule stated ih that case had never “ been seriously questioned.” Our conclusion is that the award for the full fee value of parcel No. 2 should be so divided1 that the appellant the City of New. York will be awarded the value of its private easements therein of light, air and access, and that the defendants Opdyke will-be awarded the valué of their fee, subject to said easements. This will necessitate a reference back to "the referee.

The order appealed from must be reversed and the matter submitted to the referee to ajiportion the award in accordance with this opinion, and to report thereon to the court at Special Term, without costs in this court to any party.

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed, without costs, and matter remitted to referee to proceed as stated in opinion. 
      
      See Laws of 1874, chap. 604, § 3.— [Rep,
     
      
     