In re Adams

appealed from, the order of reversal to this court. Hunt purchased the lands in question for fanning purposes as early as 1834. In 1835 or 1836 commissioners, appointed pursuant to the provisions of chapter 132 of the Laws of 1835, made and filed a map showing the location of the city streets, and the lines of Fifty-first street, as shown upon this map, include the lands now sought to be acquired. The street, however, was never actually opened or regulated. In 1851, Hunt conveyed the adjoining lands by deed under the following description and reservation:

“Beginning at the northeast corner of Third avenue and Fifty-first street; running thence northerly along the line of said avenue to lands of Galvin T. Spear; thence east along the lands last mentioned 740 feet to the centre of Fourth avenue; thence south along the centre of Fourth avenue 100 feet to the northely line of Fifty-first street 740 feet to the place of beginning,” and contained the following clause: “Hot intending hereby to convey to the party of the second part any right, title or interest of, in or to the land adjoining the said premises, and forming a part of Fifty-first street.”

In 1864 the department of assessment of the city made and filed a map of the 8th ward, in which the lands in question are located, for the purpose of assessment, and the lands are there laid out, and Fifty-first street appears substantially as in the map of 1835. Since this map was filed no assessment was made or tax levied upon that part of the lands of Hunt embraced within the lines of Fifty-first street by the city or county. After the death of Hunt, his executor, in June, 1879, filed a map of the lands, laying them off in blocks, lots and streets corresponding to the commissioners’ map. There was indorsed upon this map, however, a notice to the effect that the streets and avenues thereon designated was for the purposes of description and reference only, and it was not intended to dedicate any of the lands lying within the lines of the streets and avenues to public use as such, or for any other purpose. Afterwards the executor conveyed lots, bounding them upon the street, to other parties, in which the lands in front of the lots so conveyed and within the street lines were in terms including. The question is whether the executor of Hunt was under these circumstances entitled, as matter of law to more than nominal damages for the lands taken, the title to which still remained in him, and included within the lines of Fifty-first street on the map mentioned. The application by the city to appropriate the land to the purposes of a street must be regarded as an admission that it had not been completely dedicated for that purpose before by the owner. There can be no doubt however, that the owner intended to and did devote the land to use as a street,' at least as between himself and his grantees who purchased lots bounded upon the street. They acquired an easement in the strip of land for use as a highway in order to have access to and from the lots purchased. They were entitled to have it kept open as a street for their benefit, and that thereafter the owner held the title incumbered an easement for

the benefit of the grantees of the lots of which he had sold, and it was subject to that easement when this application was made. 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, or4 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 that 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. 347 ; 48 St. Rep., 66 .

The principle upon which the general public right to the use of the land as a highway is acquired in such cases, without the payment of substantial compensation to the owner, was stated by judge Finch in the case just cited in these words: “ The-real burden is in no manner increased by absorbing, the private in the public right, or substituting the latter in the room and stead of the former, since, as burdens on the land, they are substantially identical.” The nature of the private casement and the damage to the owner by converting it into a public one are illustrated and explained by other cases. In re City of Brooklyn, 73 N. Y., 184 ; Lord v. Atkins, 138 id., 184 ; 52 St. Rep., 155 ; Cunningham v. Fitzgerald, 138 N. Y., 165 ; 51 St. Rep., 840 ; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 63 ; In re Eleventh Avenue, 81 id., 446; White’s Bank of Buffalo v. Nichols, 64 id., 73 ; Wiggins v. McCleary, 49 id., 346. It follows, I think, from principles thus established that the executor of Hunt held the title to the land sought to be acquired by the city subject to an easement in favor of a part of the inhabitants on the line of the street, and its appropriation as a highway for the whole public, with the attendant duty and obligation to keep it in repair, safe and suitable for public use, entitled him to nothing more than nominal damages.

The order appealed from, should, therefore, be affirmed with costs.

All concur.

Order affirmed.