In re opening Thirty-Ninth Street — 1 Hill & Den. 191

Majority

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In the matter of opening Thirty-Ninth Street in the city of New-York, from the East to the North river.

Headnote

One who conveys lands in the city of New-York, bounding the purchaser by a street designated on the commissioners’ map, thereby dedicates his adjoining land, in the site of the street, to the public use; so that, on the opening of the street, he will be .entitled only to nominal damages therefor: and this, whether he bounds the purchaser by the centre of the street or the side of it, and though he sells in parcds less than the usual size of city lots.

S., who owned a small strip of land in that city, north of an unopened street designated on said map, and also the adjoining lands in the street and on the south side of it, conveyed the strip to N., designating the north side of the street as his southern boundary; and subsequently conveyed the rest to A., designating the same side of the street as his northern boundary. Held that, by the deed of the strip to N., the adjoining land in the street was dedicated to the public; and though A. had purchased without notice of that deed, and procured his conveyance to be first recorded, he was only entitled, on the opening of the street, to nominal damages.

Quere, whether the recording statute could, under any circumstances, affect a right of this nature which had previously accrued to the public.

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One who has been assessed for benefit by the commissioners of estimate, &c- has a right to oppose the confirmation of then report, where it contains an erroneous allowance to others by which his burthen has been enhanced.

R. Emmett, for the corporation of the city, moved the confirmation of the report of the commissioners of estimate and assessment.

J E. Lovett, on behalf of Isaac Adriancé, opposed the motion on the following state of facts. Samuel R. B. Norton, in 1834, sold and conveyed to Effingham H. Warner a piece of land which was described in the deed of conveyance as follows : “ Commencing on the E. side of the 8th avenue where the S. side of 38th street intersects the same, thence E. along the S. side of 38th street 593 feet; thence N. and parallel with-the 8th avenue, 287 feet 6 inches, to the centre of 39th street ; thence W. along the centre of 39th street, to the 8th avenue; and thence S. along the 8th avenue, to the place of beginning.” Norton still remained the owner of a narrow strip of land in 39th street, lying north of and adjoining the premises conveyed to Warner. The commissioners have allowed Norton the value of this strip of land; and Adriancé, who has been assessed for benefit, insists that Norton had dedicated the land to public use, and should, therefore, have been allowed only a nominal sum for the fee taken by the corporation on opening the street.

C. Stevens opposed the confirmation on behalf of Daniel B. Tallmadge who had been assessed for benefit, and the persons to whom he had since conveyed. John L. Norton " owned lands lying north of 39th street, and separated from the north line of the street by a narrow strip of land which belonged to Alexander" 0. Spencer and .his wife, who owned, hi addition to the strip, the land in the street and the adjoining land on the south side of the street. In 1829 Spencer and "wife sold and conveyed the strip of land lying north of the street to Norton; and Norton afterwards sold lots, covering this strip and his adjoining land, bounding

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the purchasers by the north line of the street. After the sale-to Norton, Spencer and wife sold and conveyed their remaining land, amounting to over four acres, to John Jacob Astor, bounding him on the north by the north line of 39th street; and Astor’s deed was recorded before the deed to Norton. The commissioners allowed Astor the value of his land lying in the street, which the objectors insist had been dedicated to the public by the deed to Norton. The objectors made an affidavit stating their belief that Astor’s counsel had notice of the deed to Norton at the time he took his conveyance.

R. Emmett, for the corporation, insisted that the deed to Norton was void as against Astor, whose deed, though given last, was first recorded; and that this would defeat the prior dedication. He denied that there was sufficient evidence to charge Astor with notice of the deed to Norton.

The commissioners have proceeded on a distinction, which does not amount to a difference in principle, between this case and those which have heretofore been before us. They have allowed S. R B. Norton the value, instead of a nominal sum, for the strip of land which he still owns in 39th street, on the ground that he did not convey to Warner in parcels of the usual size for city lots, and because, as to 39th street, he bounded the purchaser by the centre instead of the side of the street. In the Matter of 32d street, (19 Wendell, 128,) .I noticed the fact that the owner had laid out and sold his land in small parcels of the usual size for city lots; but I did not intend to intimate that it could be a matter of much importance on the question of dedication; whether the owner sold in small or in large parcels. It is enough that he refers to, and adopts the commissioners’ map. In this case, Norton has bounded the purchaser on three sides by two of the streets and an avenue, as they were laid out and established by the commissioners under the act of 1807; and this we think a plain dedication of all his adjoining land in

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the site of the avenue and streets to public use. We do not think it important that the purchaser was bounded by the centre, instead of the side of 39th street. In the one form as well as in the other the vendor plainly refers to the commissioners’ map, and adopts the street as it had been previously laid out by public authority. He declares that, so far as he is concerned, it shall be a public street. He could have intended ■ nothing less.

The commissioners erred in allowing Norton any thing beyond a nominal sum; and Adriance, who has been assessed for benefit, has a right to complain of their decision. It has enhanced the burden Avhich falls on him.

Spencer and wife, who at another place owned the lands in, and on both sides of the street, conveyed a narroAV strip to J. L. Norton in 1829, bounding him by the north side of the street; and thus dedicated the adjoining land- in the site of the street to public use. But it is said that this dedication was defeated by the subsequent deed to Astor, because that deed was first recorded, and there is no sufficient proof of notice to Astor of the prior conveyance. The two deeds do not conflict Avith each other. There is a common boundary between the grantees in both. The land conveyed to Norton lies on the north, and that conveyed to Astor on the south, of. the north line of the street, It may be doubted, whether the recording statute could have any effect upon the right which had previously accrued to the public in consequence of the deed to Norton. But I do not think it necessary to consider that question. The grant to Astor, although it includes the land in the site of the street, plainly refers to, and sanctions the commissioner’s map, and thus manifests the assent of both grantor and grantee that the street, as it had been laid out under the act of 1807, should be a public street. It can make" no difference in principle, that the grant to Astor did not stop at the south, but extended to the north side of the street. By making the street a boundary in any form, the parties have signified their assent to what had-, previously been done by public authority, and have devoted the land

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in the site of the street to public use. Mr. Astor was only entitled to a nominal sum; and those who have been assessed for benefit have a right to complain.

The report must go back to the commissioners to be revised and corrected in the two particulars which have been mentioned.

Ordered accordingly.