In re taking a Right of Easement in Property for Construction of a Sewer in Wells Avenue

Majority

p. 648

In the Matter of taking a Right of Easement, etc., in Property for Construction of a Sewer in Wells Avenue in the City of Yonkers.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Municipal corporations — Public improvements — Sewers — Damages.

Where land is condemned for or dedicated to a public street in a city, the owner of the fee is entitled to no more than nominal damages for the additional burden upon the fee by reason of placing a sewer in such street.

p. 649

3. Same—Condemnation proceedings—When owner proper party— Evidence.

The owner of the fee is a proper party to condemnation proceedings, and it is competent for the city to show exactly what his interest in the street is and how much he is damnified.

3. Same—Extension oe street by tilling in—Subject to public use.

Where the street extends to navigable waters any prolongation of the street by filling in by the riparian owner is subject to the right of the public to go over the land filled in between the street lines and the water.

4. Same—What unlawful obstruction to public easement.

The fact that the street extends to navigable waters renders any filling in an unlawful obstruction of a public easement.

Appeal from an order of the Westchester special term.

R. E. and A. J. Prime and Burns, for app’lt; Joseph F. Daly for city of Yonkers; Butler, Stillman & Hubbard and John W. Alexander, for parties resp’t.

—It is abundantly proved that'Wells avenue was laid out in 1856, and extended to the Hudson river railroad embankment. Afterwards one Frazier, the owner of the upland adjoining Wells avenue, obtained from the people of the state of New York a grant of land under water, covering the land now in question, and filled it in, thus extending the shore line. Subsequently, by deed, he dedicated what is now the west end of Wells avenue, through which the proposed sewer is to be constructed te public use as a street or avenue.

It is now a familiar principle that where land is condemned for, or dedicated to, a public use in a city, it is for all the necessary purposes for which a city may require its use as a public street. Therefore, in no event could Lawrence be entitled to more than nominal damages for the-additional burthen upon the fee by reason of placing a sewer in said avenue. Such has been the rule in cases where land has been condemned for horse railroads under public streets. It is clear, therefore, that the locus in quo was a public street by reason of its having been laid out and dedicated, and the damages were excessive and computed upon an erroneous principle, and the court below was, therefore, right in sending the case back with proper instructions.

There was nothing inconsistent with this principle contained in the petition. Lawrence was the owner of the fee of the land in the street subject to the easement of a public street over the same. He was, therefore, a proper party to the proceeding, and it was competent for the city to show exactly what his interest in the street was and how much he was damnified.

It may also be assumed as fairly proved that Wells avenue, at the time it was laid out, extended to low water mark upon the Hudson river.

p. 650

' The public, therefore, had access to the navigable water of the Hudson river, and any prolongation of the avenue by filling in was subject to the right of the public to go over the land thus filled in within the street lines to the water. People v. Lambier, 5 Denio, 9 .

This proposition is so well-established that it is unneces-1 sary to cite authorities.

There is another view taken of the case by the respondents, to wit: that no one except the people of the state ever owned the land embraced in Wells avenue, at the terminus on the river front, until 1869.

But it is unnecessary to discuss the conclusions that follow from this statement, as there is sufficient in the case to sustain the order appealed from. Whatever may have been Frazier’s title, the fact that Wells avenue extended to the navigable Waters of the river rendered any filling in an unlawful obstruction of a public easement. Any riparian owner who undertook to fill in in front of the existing street did so subject to the right of the public to use the same as a public street, and this right, as before stated, included the right to extend a sewer under the same.

The order must be affirmed, with costs and disbursements.

Dykman, J., concurs; Barnard, P. J., not sitting.