In re Board of Street Opening & Improvement to Acquire Title to Fox Street

This proceeding was instituted on behalf of the city of New York to acquire title to land included within the boundaries of a street theretofore known as “Fox Street,” or “150th Street,” and to award damages to the respective owners for the land taken. Commissioners of estimate and assessment were appointed, and in the preliminary report made by them they awarded to the respondents the executors and trustees of John McConville, deceased, the sum of $7,200, but in their final report the commissioners reduced this amount to $4,200; the reduction being made by reason of the determination of the commissioners that the public had an easement or right of way over that portion of the premises included within the street claimed by the McConville estate, which reduced the damages to which the respondents were entitled for the land taken to the extent of the value of such right or easement. A motion was subsequently made to confirm the final report of the com

In order to determine whether the commissioners did in fact “adopt an erroneous basis in arriving at the assessment,” it is necessary to determine whether the city of Few York had an easement or right of way over the land in question, or whether the entire title in and to such land was in the McGonville estate. This determination can only be made by an examination of the conveyances by or through which the McGonville estate claims title, as well as the acts of owners of this land, and proceedings by which an easement is alleged to have been acquired by the city. There is no substantial dispute as to the facts, the question presented being principally one of law.

In 1851 G-ouverneur Morris owned a large tract of land, which included the land within the boundaries of the street, the title to which is involved in the subject-matter here under consideration. In that year Morris filed a map of his land in the town clerk’s office, designating it, “A Map of East Morrisania.” Upon this map different streets were indicated, and among others Uncas and Pontiac streets, which correspond respectively to streets designated in the record before us as Fox and Beck streets. Between 1853 and 1857-various parcels of this land were conveyed to one Benjamin Whit-lock, and he in the latter part of the year 1857 had acquired title to all of the land now claimed by the McGonville estate. During or prior to the year 1873 one John McGonville acquired all of the land, and any and all interest therein previously held by Whitlock. All of the conveyances prior to the one under which McGonville acquired his title contain a recital that the land was so conveyed “subject, nevertheless, to the use thereof by the public as heretofore granted and dedicated by said Morris.” There was no such recital in the deed to McGonville. In 1857 (the exact date is somewhat uncertain) Whitlock, then having the entire title, made an application to the commissioners of highways of the town of Morrisania to discontinue Uncas and Pontiac streets from the line of an old stone wall located upon the westerly boundary of his land, and what is now known as the “McGonville' Tract,” upon the ground that said streets have become useless and unnecessary. In pursuance of this application the commissioners of highways of that town summoned certain freeholders, in the manner provided by statute, to determine and certify whether the portions of the streets mentioned in Whitlock’s application had in fact become useless and unnecessary. After a hearing duly had for that purpose, such free

In this connection it is urged by the corporation counsel that the order of discontinuance was ineffectual, inasmuch as the portions of the streets sought to be discontinued had not then been opened and worked, and, inasmuch as they had not been opened and worked, they could not be discontinued. In other words, the contention is that under the statute then in force a street or highway could not be discontinued as an old one until it had been opened and worked; and to sustain this contention the case of People v. Griswold, 67 N. Y. 59 , is cited. There is some force in the contention. It is difficult to see how a street or highway which has never been opened or worked can be discontinued, as an old one, unless the original occasion for it has ceased by reason of the opening of another highway or street, or unless there has been a material change as to its necessity. People v. Commissioner, 1 Thomp. & C. 193. We are, however, unable to see how this affects, or, indeed, has any bearing upon, the question here presented. If it be held that Uncas and Pontiac streets were not in fact discontinued by the order referred to, inasmuch as they had not been opened and worked, then it necessarily follows that the attempt made by Morris to dedicate the land covered by so much of these streets as were sought to be discontinued was ineffectual- for that purpose. To constitute a valid dedication of land to the public, two- things are required: The intent of the owner of the land to dedicate it, and an acceptance by the public of the land dedicated. And the act of the latter is just as necessary for the complete legal dedication as the intent of the former. Here it may be conceded that Morris intended in 1851 to dedicate the land covered by these streets to the public, but the record is absolutely barren -of anything which shows or tends to show that the public did anything looking towards an acceptance of that dedication until 1857, when the proper authorities, by an order duly made as already indicated, discontinued the streets; and it matters not whether the order was sufficient to effect a legal discontinuance, because, whatever may be said as to that, it certainly must be held that it was • sufficient, as indicating a refusal on the part of the public to accept from Morris the land which he intended to dedicate to it. It must, therefore, we think, be held that whatever rights the public had in and to the land included within the boundaries of these streets were, by the order made and filed by the commissioners of highways in 1857, either extinguished or relinquished.

“Every public highway and public road already laid out and dedicated to the use of the public that shall not have been opened and worked within six years of the time of its being so laid out, and every such highway hereafter to be laid out and which shall not be opened and worked within a like period, shall cease to be a road for any purpose whatever, * * * and all highways that have ceased to be travelled or used for six years shall cease to be highways for any purpose. * * * The provisions of this act shall apply to every public highway and public road laid out and dedicated to the use of the public within the last six years, and to every such highway hereafter to be laid out.”

At the time of the passage of this act, and for more than six years thereafter, the land, the title to which is now involved, was subject to the provisions of the statute just quoted, and, even though it be conceded that the dedication made by Morris was accepted by the public, it nevertheless lost whatever right it had in such land by its failure to open and work the street within the time specified in the statute; and it must therefore be held that it had ceased to be a highway for any purpose whatever, and that the public by reason thereof lost all right or interest therein. But, as already indicated, the dedication made by Morris never became effectual» It was not such a dedication as vested an easement in the public. A dedication, to be effectual, must within a reasonable time be followed by an acceptance; and the owner of the land, if the dedication be not accepted within a reasonable time, may recall it. Indeed, he may recall it at any time before the rights of the public have attached. What is a reasonable time must, of course, depend upon the particular facts and circumstances of each case. Lee v. Village of Sandy Hill, 40 N. Y. 442 . The fact that Morris in 1851 filed a map upon which he showed the street in question did not bind him, or any one claiming under him, to an irrevocable dedication of that street to the public, unless the public availed itself of his act within a reasonable time, which, under the" facts here presented, it did not do. The map filed by Morris in 1858, of course, has no effect upon the question presented, because at that time he-

The ioregoing consideration leads us to the conclusion that the learned justice at special term was correct in holding that the commissioners of estimate and assessment adopted an erroneous basis for the award made to the McConville estate. The owners of the land of that estate are entitled to have an award made to them for the value of the land taken, free from the right of way of the public in and to the street, and for that reason the report was properly returned by the special term to the commissioners for amendjnent and correction. Having reached this conclusion, it is unnecessary to consider whether title was acquired by the McConville estate by adverse possession.

This brings us to the consideration of the only remaining question, and that is the one presented by the appeal taken by the Mt. Morris Eeal-Estate Association. In the preliminary report the commissioners award to that association the sum of $8,100 for Fox street between Prospect and Union avenues. This award was made upon the assumption that this association owned the fee of Fox street, unincumbered by any easement or right of way of the owners of other lots bordering thereon. Objections were made to the report by the respondent Yoran, and, at a hearing before the commissioners, testimony was introduced on his behalf to the effect that there were easements or rights of way over the land of the association in his favor, as well as in favor of others who held land situate or bordering upon Fox street, the title to which had been acquired from the association. Upon this testimony the commissioners reduced the award to the association from $8,100 to $1,180, and in their final report awarded to the association the latter sum. The special term confirmed the report of the commissioners in this respect, and it is from this portion of the order that the association has appealed.

The facts involved in the appeal taken by the association are briefly as follows: On the 30th of April, 1891, the association became the owner of certain land bordering upon Fox street between Prospect and Union avenues, and, desiring to dispose of this land, .the association in 1892 prepared a map, upon which the land was laid out into small lots bordering upon certain streets,—among others, Fox street. It advertised these lots for sale at public auction at a time and place specified, and, upon a map prepared for the information of bidders, Fox street was shown as an open street; and four lots—two on the northerly and two on the- southerly side of it—were indicated as being bounded by or bordering upon that street. At the sale the two lots on the southerly side of the street and one on the northerly side of it were sold, and the conveyances given by the association described the land conveyed as running “along the northerly [or southerly] side of Fox street.” The fourth lot was not sold, and it seems that the title to it is still owned by the association.

G-iving to the conveyances made by the association to the purchasers of lots from it the most favorable construction possible, so far as the association is concerned, and assuming that by the terms

The cases of Lord v. Atkins, 138 N. Y. 184 , 33 N. E. 1035 , and In re Adams, 141 N. Y. 297 , 36 N. E. 318 , are in point. In the former case the court said:

“It is well settled that when the owner of land lays it out into distinct lots, with intersecting streets and avenues, and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. When in such case a lot is sold, bounded by a street, the purchaser and his grantees have an easement in the street for the purpose of access, which is a property right.”

In the latter case the court said:

“The rights which the several grantees of lots on both sides of this strip of land thus acquired impressed upon it all the characteristics of a public street, though it may not have been completely dedicated by the owner to that purpose, or accepted by the public authorities as a highway. This servitude thus impressed upon the land could not be extinguished, except with the concurrence and by the united act of every person who owned a lot bounded by the street. The commissioners, therefore, could only award the owner the value of the public easement proposed to be taken, deducting therefrom the value-of the private easement which already incumbered the property; and we have held in such cases the owner’s damages are nominal only, as the added burden is itself but technical and nominal. In re Village of Olean v. Steyner, 135 N. Y. 341 , 32 N. E. 9 , 17 L. R. A. 640 .”

See, also, Bank v. Nicholas, 64 N. Y. 65 ; Holloway v. Southmayd, 139 N. Y. 390 , 34 N. E. 1047 , 1052; Story v. Railroad Co., 90 N. Y. 144 ; Haight v. Littlefield, 147 N. Y. 338 , 41 N. E. 696 ; Hennessy v. Murdock, 337 N. Y. 317 , 33 N. E. 330 .

The preliminary report awarded damages to the association upon the theory that it was the owner of the entire street, unincumbered by any easements or l'ights of way therein by the owners of other lands bordering thereon. This was clearly erroneous. The grantees of the association not only had a right of way over the street in front of the premises conveyed to them, respectively, but they also had a right of way over the entire street from Union to Prospect avenues, including that portion of it which passed in front of the lots still owned by the association, and the city could only deprive them of this right by awarding to them full compensation therefor. The association is, as already indicated, the owner of one lot bordering upon Fox street, and it is .therefore entitled to be compensated for the injury which it sustains by the taking of Fox street. In re 173d St., 78 Hun, 487 , 29 N. Y. Supp. 205 . The award made is a substantial one, and, upon the record before us, we are unable to say that it is not a fair one.

It follows that the order of the special term is right, and must be affirmed, with $10 costs and disbursements to each respondent on the appeal. All concur.