In re East 168th St.

This is an appeal by the mayor, etc., of the city of New York, from an order made at the special term, by which commissioners of estimate and assessment, appointed in the above-entitled proceeding, were authorized and directed to ascertain and determine

It appears that 168th street, as projected on the maps filed in the proceeding, intersects Gerard avenue. The respondents are owners of land fronting on that avenue, such frontage beginning at the intersection of the northerly line of the proposed 168th street with the easterly line of Gerard avenue, as the same was laid out by the commissioners of the Central Park on the 23d day of January, 1888, and extending in a general northeasterly direction 41 feet and 6 inches. The commissioner of street improvements for the 23d and 24th wards of the city of New York, acting under the provisions of chapter 545 of the Laws of 1890, which authorized the discontinuance or closing of any street, road, avenue, public square, or place, or any part of the same, within those wards, with the consent of the board of street opening and improvement, filed certain maps, some of them anterior to 1895. On the 12th of June, 1895, an act was passed by the legislature (chapter 1006, Laws 1895) entitled “An act to provide for discontinuing and closing streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than one million two hundred and fifty thousand inhabitants.” That statute actually affected only the city of New York. On the 2d of November, 1895, the board of street opening, having statutory authority so to do, filed a map showing a plan of streets for a section of the 23d ward in the vicinity of the respondents’ premises, upon which a certain part of Gerard avenue was closed, namely, that embraced within a line extended 13 feet and 11 inches westerly from the northeasterly corner of the respondents’ property on 168th street, thence northerly 136.82 feet. It is a portion of the roadway of Gerard avenue, taken to form part of the block bounded by 168th and 169th streets and Walton avenue and Gerard avenue. That much of Gerard avenue became closed by the filing of the map, and thus the respondents’ easements of light, air, and access to their Gerard avenue frontage were in legal effect

It is enacted by section 14 of chapter 1006 of the Laws of 1895 that a proceeding for closing a street may be consolidated with one for opening a street." By that section it is provided that whenever local authorities institute a proceeding to open any street, etc., laid out upon a general or permanent plan of the city, or district thereof which shall be contiguous to or in the neighborhood of any lot or parcel of ground fronting on such street, etc., which they have discontinued or closed, and proceedings have not been had or completed to ascertain the damage caused by such discontinuance or closing, the court which has or shall appoint commissioners, etc., in respect to such opening, may at any time, upon the application of the chief law officer or counsel to the corporation of such city, or upon the application of any party or person interested in the land fronting upon the street, etc., so discontinued and closed, order and provide, if it shall appear to the said court to be expedient and proper, that the same commissioners of appraisal and estimate, etc., shall ascertain and determine the compensation which should justly be made for any loss and damage to the respective owners, lessees, parties, and persons respectively entitled in possession, reversion, or remainder unto, in, and to, or included in, any lands, tenements, hereditaments, premises, easements, rights, or interests taken, affected, or damaged by or in consequence of the discontinuance or closing of such street, etc., or such portion thereof as the court may direct and specify in said order; and the said commissioners, etc., shall thereupon make said estimate accordingly, and the proceedings to ascertain and determine the same shall be conducted and completed in accordance with the provisions of existing laws relative to the opening of the street or avenue for which the said commissioners were appointed, except that any parcel of land deemed to be benefited may be assessed to the extent provided for in section 6 of the said act, and the amount awarded for and by reason of such discontinuance or closing shall be included in the amount of the expenses to be assessed upon the property benefited in said proceeding. From and after the making and filing of the order of the court consolidating such proceedings, no further or other proceeding shall be taken relative to ascertaining or determining the compensation which should be made for such discontinuance or closing.

The act of 1895 provides a complete scheme for closing streets and avenues in the city of New York. It is provided by section 2 that, upon the filing of the map therein referred to, the streets, avenues, and roads shown thereon shall be the only lawful streets, etc., in that section of the city shown on said map, and all former streets, etc., theretofore laid out, dedicated, or established not shown thereon, and which are not then actually open or in public use, shall, from and after the filing of said map or plan, cease to be or remain for any purpose whatever a street, etc., and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon inclose,

The foregoing is an abstract of all the provisions of the act of 1895

The objections urged to the act under consideration relate to the methods adopted by the legislature to accomplish its objects, to the liabilities imposed, and the consequences brought about by the methods thus adopted. Closing a street is the reverse of opening one. In the latter case, private property is taken for a plain public use. Under condemnation proceedings the owner of the property thus taken for the public use is compensated, and the city acquires in trust for the public the fee of the land included within the boundaries of the street. On closing a street, the public right in the street ceases, and the title to and ownership of the fee of the land within the lines of the street subject to any private easements therein becomes vested in the grantor or his heirs if the street were dedicated, or in the city if the land were taken by condemnation proceedings. It is this situation which gives rise to the contention of the city that, upon the closing of the street, that which was the roadway becomes private property, and that, when assessments are made upon neighboring property to pay for the extinguishment of private easements over the land thus closed and vested in individual ownership, such assessments are made for a private use, because the extinguishment of the easements is, it is assumed, for the exclusive benefit of the land in the street upon which those private easements rested as servitudes. That such easements are property, and that they cannot be taken without compensation, is well settled (Storv v. Railroad Co., 90 N. Y. 122 ; Lahr v. Railroad Co., 104 N. Y. 268 , 10 N. E. 528 ); and it is also well settled that upon the closing of a street in the city of New York, prior to the act of 1895, the public easement in the street alone was extinguished (Holloway v. Delano, 139 N. Y. 390 , 34 N. E. 1047 , 1052; Holloway v. Southmayd, 139 N. Y. 410 , 34 N. E. 1047 , 1052). By the closing of the streets, under the decisions in the two cases last cited, the city of New York did not ipso facto acquire an absolute fee, freed from all easements, in the land in Gerard avenue. In order to acquire such an absolute and untrammeled fee, it is necessary for the city to pay the value of the easements destroyed by the closing of the street. We have had occasion to say more than once that we have neither the disposition nor intention to criticise the decision of the court of appeals in the Holloway Cases. Argument is from time to time persistently made before us that those decisions are in conflict with a long line of an

The inquiry therefore is as follows, viz.: Is the object sought to be attained by the act only to extinguish private easements appurtenant to property after a street has been discontinued for the benefit of the individual owner of the land within the boundary of the street thus closed? The precise situation of this particular case in this aspect is that the title to the land no longer required for street purposes is transferred to the original owner by force of the statute, subject to the easement; that easement is to be extinguished, and compensation made for it; the abutting owner is given a pre-emptive right to purchase that land within a year upon a fixed valuation, provided the local authorities shall determine that such parcel of land, or any part thereof, shall not be required for any other public use; and, if the abutting owner does not exercise his pre-emptive privilege within that year, the right, title, and interest of the city is subject to sale, grant, disposal, or use to any person whomsoever, in such manner and upon such terms as the local authorities of such city may designate, provide, and approve. Those provisions undoubtedly relate to the acquisition of private titles as a part of the general scheme of the act. The city of New York, as owner of the land, may use it for corporate purposes, or, unless it is required for such use, it may sell or dispose of it in the same way as an individual owner might do. But all that does not, in view of the main purpose to be accomplished by the act of 1895, make- the exclusive purpose of that legislation a private one, although private ownership is the ultimate result of those provisions of the act. The .underlying or fundamental purpose of the act is a public one. As declared in its first section, it is “to more effectually secure and pre

As was remarked in Meyer v. Village of Teutopolis, 131 Ill. 552 , 23 N. E. 651 :,

“Nor can it be said that the validity of the proceedings by which a street is vacated is at ail affected by the fact that the land embraced within the street thereby becomes private property. Nor is it material whether private ownership results from the rule that, upon the discontinuance of an easement in a public highway, the freehold or soil reverts to the owner of the adjoining land, or that such ownership is acquired by subsequent conveyance from the municipality. Nor does it seem material that the vacation is made with the view or intention of vesting the adjoining proprietors with the ownership ■of the land embraced within the street. That merely goes to the motive by which the act of vacation is performed, and in that, as in all legislative acts, the motives by which the legislative body is actuated are immaterial, and cannot be inquired into."

The closing of the street thus being a public purpose, in order to make that an actual closing it is necessary that the easements of the abutting owners should be extinguished, for otherwise the street could not be effectually closed. The objection is then made to the provisions of the act of 1895 which relate to the assessment of neighboring property to pay for the extinguishment of such easements. The act requires that the commissioners shall assess the property benefited, including the city’s property in the closed street. In the case before us the inquiry relates only to land of the city. As the .assessment is only levied for carrying out a public purpose in connection with closing a street, such assessment upon property actually benefited by its imposition cannot be said to be unlawful. The question of what property is benefited is a question of fact for the determination of the commissioners. It is not to be assumed that they will make any assessment upon property which is not as matter of fact benefited; and, if the benefit attaches exclusively to the land of the city, the commissioners will undoubtedly confine their assessment for benefit to the land. But there may be conditions which would make the closing of a portion of this street and the

But the question is presented in another view. It is urged that the provisions of the statute under consideration are invalid, because adjoining property owners are required to pay the sum necessary to relieve the private owners of the land within the boundaries of the closed street from the private easements appurtenant to that land when no benefit accrues to such neighboring property owners; and it is claimed that this is in excess of the power of the legislature with reference to taxation. The imposition of local assessments for benefits is unquestionably an exercise of the power of taxation. People v. Mayor of Brooklyn, 4 N. Y. 419 ; Litchfield v. Vernon, 41 N. Y. 123 ; In re Van Antwerp, 56 N. Y. 261 . If, in the case now before us, the necessary result of the provision of the law under consideration were to compel property owners not benefited to pay money to enable the city to acquire property which it was not to hold public! juris, then there would be the invalid exercise of the power of taxation; but, in the first place, the argument assumes again that the property of the adjoining owners is not and cannot be in any way benefited by the closing of this street and the extinguishment of the easements of the abutting owners. There may be benefits to such owners, the direct result of the straightening of the line of Gerard avenue and the closing up of so much thereof as is included within the ■ irregular geometrical figure shown upon the commissioners’ map. It cannot be assumed as judicially beyond controversy that no possible benefit ascertainable and reducible to a money valuation can accrue to the neighboring property owners by reason of the closing of so much of the street. As said before, that becomes a question of fact for the commissioners, and it is not to be assumed that they will arbitrarily and unlawfully exercise tbe power with which they are invested. If no property is actually benefited but that of the city, it alone must bear the expense.

The prime object of the statute is the closing of the street. The roadway discontinued in use as a public highway reverts to the owner of the soil; but the dominant purpose of the act cannot practically be attained until the easements of the abutting owner are destroyed or discharged by making compensation. That compensation

Order affirmed, with costs. All concur, except INGRAHAM, J., dissenting.