p. 234In the Matter of the Petition of John P. Adams, Commissioner, of Public Works.(Supreme Court, General Term, Second Department,Headnote
CONDEMMATIOK—PRIVATE STREET.The value of the fee of a private street in a great city, where the possibility or probability of its being closed is very remote, is merely nominal.
Appeal from an order refusing to confirm the award of appraisers appointed to assess the value of land for public use.
Bergen & Dyhman {James C. Bergen, of counsel), for resp’ts.
Upon the application of John P. Adams, commissioner of public works, three appraisers were appointed to assess the value of “All the land lying between Third and Fourth avenues in Fifty-First street as the same is laid down on the commissioner’s map of the city of Brooklyn.” The land was the property of Thomas Hunt in his lifetime, and was needed for the public use. The commissioners of appraisal reported the value of the land to be six cénts. The court at special term refused to confirm the report upon the ground that damages were substantial, and this appeal brings up the question of the value for the purpose of condemnation to public use. The proof shows that
p. 235the premises in question were known as Fifty-First street on a map made and filed by Thomas Hunt’s executors, and between Third and Fourth avenues. The map shows a certificate indorsed thereon by the executors that the streets and avenues designated therein were solely for the purpose of descriptions and references, and that there was no intention to dedicate the lands to public use as streets of the city, or to any public use. The executors sold lots on the street expressly stating in the deed that the conveyance was of the street up to the center line. The commissioner’s valuation was right. The grantees in the deed, each and every of them, own to the center of the street in front of the lots, with a right to have the entire street to remain open forever for their free passage. This would be their right over such parts of the street as were unconveyed by executors. The only difference between this condition of things and what would exist on a full dedication of the street is simply this: The owner and all the lot owners could "shut up the street; which they could not do on a, public street. This contingency is so remote in a great city that the appraisal commissioners did right in disregarding its probability, or even possibility. The street was made to be open, and always open after lots were sold on it, and the fee under a public highway is only nominal.
Trustees, etc., v.
Cowen, 4 Paige, 510;
Bissell v.
N. Y. Central R. Co., 23 N.
Y., 61 ;
Wiggins v.
McCleary, 49 id., 346.
The order refusing to confirm award is therefore reversed, with costs and disbursements, and the report confirmed.