Majority
p. 313FREDERICK P. FORSTER, Plaintiff v. DAVID SCOTT, Defendant.
Headnote
Case agreed upon in a controversy and submitted for decision to the general term pursuant to section 1279 of the Code and the sections following thereto.The plaintiff and defendant, on June 18, 1891, entered into contract by which the plaintiff agreed to sell and the defendant agreed to buy a piece or lot of land, described in the contract of sale, subject to a mortgage for $4,000 in favor of one Julia M. Scarlett. The premises were to be conveyed by a good title, free from any lien or encumbrance except said mortgage. A deed was duly tendered but refused by defendant, on the ground that there was a lien or encumbrance on the .property besides the
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Scarlett mortgage arising out of the facts set forth in the case submitted, and the plaintiff claims that no lien or encumbrance exists thereby. Whether or not there is such a lien or encumbrance is the question in difference between the parties submitted to the court.
The following additional facts and questions appear in the submitted ease. On or about October 18, 1890, the department of public parks in the city of New York, duly filed a map of a proposed avenue or street in the twenty-third ward of the city of New York, pursuant to chapter 681 of the laws of 1886, in the office of the said department of public parks, in the office of the register of the city and county of New York, and in the office of the secretary of state, and each of said maps remains of record in the office where the same was filed. Said maps were made out, filed, executed, acknowledged, certified, in all respects as required by chapter 681, Laws of 1886, section 672 of the Consolidation Act, and the amendment thereto, chapter 530, Laws of 1885, and all other acts relating to the department of public parks and its powers in regard to the streets in the 23rd and 24th wards, which are hereby made a part of this case. All the requirements of said acts now in force were in all respects complied with by the department of public parks in filing the map aforesaid. On the said map the department of public parks laid out a street or avenue of the first-class which covers the whole of plaintiff’s lot.
Section 673 of the Consolidation Act, and all other acts which provide for the opening of streets or avenues in the 23rd and 24th wards and which confer powers in regard to streets or avenues in the 23rd and 24th wards on the department of public parks, or on the commissioner of street improvements of the twenty-third and twenty-fourth wards, and particularly Consolidation Act, § 671 as amended by chapter 487, Laws of 1887; § 672, as amended by chapter 530, Laws of 1885, § 674; sections 677 and 958, and chapter 545, Laws of 1890, are hereby made a part of this case. By sections 677 and 958 of the Consolidation Act, it was provided, among other things, that when proceedings were taken to open any of the streets laid down on maps as provided in the laws already referred to “ No compensation shall be allowed for any buildings, erection or construction which at any time subsequent to the filing of the maps, plans or profiles mentioned in section 672 of this act, may be built, erected or placed in part or in whole upon or through any street, avenue, road, public square or place exhibited upon such maps, plans or profiles.”
No proceedings have ever been taken to open the street or avenue laid out as aforesaid across the plaintiff’s lot, or to acquire the plaintiff’s land by condemnation proceedings, no building is erected thereon, and the same is a vacant lot which derives almost its entire value from the possibility of being used for building purposes. If the lot cannot now be built upon without the house being destroyed without compensation in the event of the street being opened as prescribed by the statutes above set forth, the lot is not worth what defendant agreed to pay, whereas if it can be used for building purposes it is worth at least $5,000.
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Upon this state of facts, maps having been filed for streets or avenues of the first class covering the entire lot and the requirements of the law having been in all respects complied with, the defendant claims that under the statutes relating to the subject and particularly sections Gif and 95S of the Consolidation Act, the filing of the said maps creates a lien or encumbrance upon the said lot, in that it prohibits the erection of any building thereon under penalty of having no compensation made for such building, if the city should thereafter acquire the property by condemnaíio 1 proceedings; and the plaintiff claims that the said statutes so far as they prohibit the erection of any building thereon under penalty of having no compensation made for such building, if the city acquires the land by condemnation proceedings, are unconstitutional and void because (1) they deprive the plaintiff of his property and liberty without due process of law, in violation of the constitutions of the state of New York and the United States; (2^ they take the plaintiff’s private property for public use without just compensation, in violation of the constitution of the state of New York; and (3) they deprive the plaintiff of the equal protection of the laws, in violation of the constitution of the United States.
Upon these facts the questions submitted to the court are: 1st. Are the provisions of the said statutes and particularly sections G77 and 958 of the Consolidation Act, that if any building is erected on a street laid down on a map filed by the department of public parks, no compensation shall be awarded for such building if the land on which it is erected is subsequently acquired by the city for the street or avenue laid out upon it in condemnation proceedings, unconstitutional and void ? 2nd. Is there a lien or encumbrance on the plaintiff’s lot created by said statutes ?
If the first question is answered in the affirmative and the second in the negative, the judgment is to be rendered in favor of the plaintiff and against the defendant, that the defendant take the title tendered by said deed of said lot and pay the sum of §1,000, without costs.
If the first question is answered in the negative, and the second in the affirmative, judgment is to be rendered in favor of the defendant, without costs.
Held, that the statutes under which the map of the contemplated street opening was filed are constitutional. The statutes in question do not attempt to regulate private property, and do not interfere with the use thereof. The filing of the map is merely notice, to whom it may concern, of an intention to open a street at a place indicated. It does not divest the owner of his title to the property, nor in any way encumber or impair it until the proceedings pirovided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken and the streets laid down by the map may never be opened for public use. The title is in no wise impaired, for the owner of the property may use it as he pleases for any legal purpose to which it may be devoted. If, however (after the notice arising from the filing of the map), he voluntarily
p. 316Before Freedman, P. J., McAdam and Gildersleeve, JJ. Decided January 15, 1892.
changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse him for the expenditures so made. The constructive notice affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern, and is not a fact that the owner is bound to communicate to a purchaser, nor is its suppression fraudulent. The filing of the map is in no manner nor to any extent, a defect of title, or a cloud on the title, nor an encumbrance. It is not a claim antagonistic to the owner, but in harmony with and in recognition of his title. The plaintiff had good title to the property he contracted to convey. There is no lien or incumbrance on it created by the statutes, and the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of §1,000, with costs, according to the terms of the submission.
Case agreed upon in a controversy submitted without action, pursuant to section 1279 of the Code.
Forster & Speir, attorneys, and Henry A. Forster of counsel, for plaintiff.
Rollin H. Lynde, for defendant.
The acts under which the map of the contemplated street opening was filed are constitutional, because relating to the exercise of the power of eminent domain, which implies that private property shall not be taken “ without just compensation.” Const. Act 1, § § 6, 7. This is in accord with the rulings in the Furman St. case. In re Furman street, 17 Wend., 649 , approved of by the Court of Errors, and in the 127th St. case, 56 How., 60 . The filing of the map is a preliminary step in the exercise of the right of eminent domain, that may or may not proceed further. The right of the public to exercise such authority and to
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condemn land for roads, streets and highways has never been denied. It is as Puffendorf calls it, the “ exercise of transcendental propriety ; ” as if the Sovereign thereby resumes possession of that which had been previously granted to the subject upon the condition that it might be again resumed to meet the necessities of the Sov ereign.—Puffendorf, B. 8, C. 5, § 3; Fletcher v. Peck, 5 Cranch, 87 . The acts in question do not attempt to regulate private property, and do not interfere with the use thereof. The filing of the map is merely notice, to whom it may concern, of an intention to open a street at a place indicated. It does not divest the owner’s title, and in no way incumbers or impairs it, until the proceedings provided by the statute have been taken for the purpose of condemning the premises, and these proceedings may never be taken and the streets laid down by the map never opened for public use. Wagner v. Perry, 47 Hun, 518 ; In re Dept. Public Parks, 60 N. Y., 319 . To hold the title divested or impaired by the fifing of the map, would imply a present right to compensation for the supposed injury, a claim which would be both premature and untenable. The title is in no wise impaired, for the owner of the property may use it as he pleases (notwithstanding the. fifing of the map) for any legal purpose to which it may be devoted. If, however (after the constructive notice arising from the fifing of the map), he voluntarily changes the property by putting an artificial structure or value upon it, he does so at his peril, and may have difficulty in compelling the corporate authorities to reimburse the expenditure so made. Whether paying for the land, without the improvements made after the fifing of the map, is “ just compensation ” within the meaning of the constitutional provision on the subject, is a question which will more appropriately arise when the issue as to compensation comes up. It is not directly before the court now. The constructive notice
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arising from the filing of the map, affects all whom it may concern, owners, mortgagees and purchasers alike. It is matter of public concern. It is not a fact the owner is bound to communicate to a purchaser, nor is the suppression of it fraudulent. Wagner v. Perry, supra. The filing of the map is in no manner nor to any extent, a defect of title, cloud on the title or incumbrance. It is not a claim antagonistic to the owner, but in harmony with and in recognition of his title. • If the property should eventually be taken (as any private property may for public use), the “just compensation ” which must be awarded will presumably be equivalent to the property taken, and there will consequently be no loss to any one. If the purchaser sees fit to add an artificial value to the property by building upon it, he has the right to do so—no one can restrain him— the property will he his to do what he pleases with. If the street is ultimately cut through, he may claim compensation for his improvements, and if it is disallowed, he will then be in a position to test the constitutionality of those portions of the acts which provide no compensation for erections made after the filing of the map. Those questions do not call for authoritative decision now.
If the plaintiff had built upon his lot after the filing of the map, and had contracted to convey both house and lot, a serious question would have been presented whether it would not be too inequitable to compel the vendee to take, Pomeroy’s Eq. Jur., §§ 1404, 1405, but that question does not arise here, as the lot is vacant and unimproved.
The sale was not made by order of the court, but by voluntary contract of the parties, and the plaintiff is entitled to have it enforced unless objections more substantial than have appeared here are presented against the application. We deem it sufficient for the present to decide (1.) that for the purposes of this case as sub
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mitted, the statutes under which the map was filed are constitutional, and that the plaintiff has good title to the property he contracted to convey; (2.) that there is no lien or encumbrance on it created by the statutes to which our attention has been called; and (3.) that the plaintiff is entitled to judgment that the defendant take the title tendered, and pay the sum of $1,000 without costs, according to the terms of the submission.
Freedman, P. J., and Gildersleeve, J., concurred.