Wyman v. Mayor of New-York — 11 N.Y. 486

Majority

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Wyman vs. The Mayor, &c. of New-York.

Headnote

Where the proprietor of real estate in the city of New York sells and conveys lots in conformity to the city map, on which the property of such proprietor is designated as laid out into blocks, streets, avenues and squares, such recognition of the plan, laying out his ground into streets, &c. is a dedication of the streets to be taken for public use whenever the corporation shall think proper to open them, although such streets, &c. be not actually opened at the time of such sale and conveyance; and by such sale the proprietor is concluded from subsequently conveying away more of that portion of the estate delineated on the city map as streets, &c. than the mere naked fee, subject to the easement of a perpetual right of way in the public.

Such right of way is not limited to the owner or owners of lots immediately hounding on the street in question, but extends to every purchaser, from the original proprietor, of lots in the same tract.

A release therefore of the right of way, by the owners of the lots immediately bounding on the street in question, will not destroy the rights of purchasers of other lots in the same tract, or restore those of the original proprietors.

* Where a vendor sells city property as bounded by streets or avenues of particular dimensions, or grants such property in reference to a map or town plot on which streets, &c. are laid down in the vicinity of the lots sold, the law presumes that the vendor has obtained an enhanced value therefor, and impliedly grants to the purchaser the right or privilege of having such streets, &c.; and such presumption cannot be contradicted by parol proof.

The purchasers of lots bounded upon streets not yet opened, are not subject to an assessment for opening such streets to pay their vendor for the value of the land taken for such streets; all he is entitled to receive is a nominal compensation for the naked fee, subject to the easement of a perpetual right of way in the public.

So where the original proprietor, after recognizing the city map, sells and conveys that portion of his estate delineated on the map as a street, the purchaser, on the opening of such street, is entitled only to a like compensation.

Error from the Supreme Court. This was a writ of error, brought to reverse the confirmation by the supreme court of the report of commissioners of estimate and. assessment in the opening of Fifth street from Broadway to Mercer street, in the city of New-York. The facts of the case are as follows : Mrs. Elizabeth De Peyster was the owner of a tract of land in the city of N. York, which had been laid outupon a map of the city into blocks and streets, one of which was the street in question called Fifth Street. In November, 1817, Mrs. De Peyster made her last will and testament, in which she declared that it was her will that that part of her freehold estate which fronts on Broadway, and which (according to a map of that part of the city of New-York made by Edward Doughty, city surveyor, approved by the common council and filed in the office of the street commissioner of the city on the 26t.h May, 1817,) is embraced between Broadway in front, Mercer street in the rear,

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Fourth street on the south side, and Fifth street on the north side thereof, may be divided into seven lots of equal dimensions, that is, of the width of 27 feet 6 feet inches in front and rear, and 200 feet in depth. She then devised the two southernmost of the seven lots, extending from Broadway to Mercer street, to her daughter, Elizabeth Schuyler Champlin, in fee ; and all the rest and residue of her freehold estate she devised to the same daughter, and to W. G. Jones, I. Clark and E. Herring, in trust for certain purposes, directing them to sell, lease, mortgage, or otherwise to dispose *of the same, as they should think advisable, and to appropriate the proceeds in the manner particularly prescribed in the will. In July, 1821, the trustees thus appointed caused a map to be made of the property devised to them, which was accordingly made conformable to the city map; and in January following, the trustees sold and conveyed three lots, lying between Broadway and Mercer street, to one Samuel Whittemore, describing them as lots Nos. 5, 6 and 7, and bounding lot No. 7 on the northeast by Fifth street, extending the whole distance from Broadway to Mercer street; lot No. 7 being the norther most of the three lots, and the two other lots lying to the south of and adjoining No. 7, and also adjoining each other. The deeds to Whittemore were recorded in February, 1822. Herring, one of the trustees, testified that he was the acting executor and trustee of the will of Mrs. De Peyster, and drafted and delivered the deeds conveying the above lots to Whittemore ; that, at the date of the deeds, neither Mercer street nor Fifth street was opened; that the lots were described as bounded in the rear on Mercer street, and lot No. 7, was described as bounded on the northeast by Fifth street, in consequence of the said street being delineated on the city map, which had been previously made by order of the corporation; but that they were thus described without any intention of abandoning any right to compensation for the soil or ground over which the streets would pass when they should be opened; that each of the three lots were sold for $1500, and that the northerly lot was sold for no higher price than either of the other two. In January, 1828, the trustees sold all that portion of land delineated as Fifth street on the city map and on the map caused to be made by the trustees, to I. W. Wyman, W. Layton, and J. Moses, for the sum of $12,800. In October, 1829, commissioners of estimate and assessment were appointed by the supreme court, upon the petition of the corporation, stating that they deemed it desirable, for the public convenience, to open Fifth street. On 12th April, 1830, the commissioners made their report, stating that Wyman and Layton and Moses were severally seised in fee of distinct portions of the tract of land required for the purpose of opening Fifth street, subject to the easement of a perpetual right of way over the same ; and they *assessed the damages of Wyman and Layton at five dollars each, and estimated five dollars benefit to Moses in consequence of his being the owner of a lot adjoining Fifth street; and estimated a similar benefit of five dollars to Wyman for the line cause. On 14th April, 1830, the commissioners deposited a copy or transcript of their estimate and assessment in the clerk’s office of the city of New-York, for the inspection of whomsoever it might concern, and gave due notice of such deposit. Wyman and Layton and Moses presented objections in the report, and exhibited proofs to the commissioners as follows : Wyman made affidavit that at the time of his purchase of the lots owned by him, he was aware that the same came within the range of Fifth street, as laid down on the commissioner’s map, but believed that if the street should be opened, the land could not be taken for the purpose of a street without a full and just compensation—under which persuasion he completed his purchase; that, at the time of the pur

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chase, he had no knowledge that any lot belonging to the estate of Mrs. De Peyster had been previously sold or conveyed as bounded on Fifth street. Layton made a similar affidavit, and Moses stated, in an affidavit made by him, that he had no knowledge whatever, at the time of the purchase of the lot owned by him, that the same would fall within the range of Fifth street. The objectors also exhibited certain deeds, by which it appeared that on the 1st August, 1825, W. J. Cántelo and Louisa M. his wife, by sundry mesne conveyances, had become seised in fee simple of lot No. seven, adjoining Fifth street on the south-west; and that Cántelo and wife and one Korrison, on the 12th February, 1830, conveyed lot No. seven to Israel Dean and John De Peyster, trustees of Elizabeth Schuyler Champlin, which trustees, on the twenty-third day of April, 1830, by an instrument under seal, (after reciting that Elizabeth Schuyler Champlin and her children are largely interested in the estate of Elizabeth De Peyster, and will be most benefited by the release of the easement or right of way, if any existed, over the portion of land designated as Fifth street, conveyed to the owners of lot No. seven,) released, quit-claimed and yielded up to Wyman, Layton, and Moses, such easement *or right of way, whether the same was or was not appurtenant to lot No. seven, of which they, the trustees, were seised as aforesaid. On the other hand, the present owners of lots Nos. 5 and 6, two of the lots origin ally conveyed to Whittemore, claimed before the commissioners to have Fifth street opened free of expense to the owners of lots in the vicinity, and proof was exhibited to the commissioners by the objectors, that a purchase of property had been made by one individual, between fifth and sixth streets, with the knowledge or understanding and belief that the streets running through or across the property of Mrs. De Peyster had been laid out and appropriated as such, and that the same would be no expense to the adjoining property; that another person, in 1825 or 1826, bought of the executors of Mrs. De Peyster a lot at the corner of Wooster street and Fourth street, and also the lot adjoining it on the west; that such purchaser was bounded on Fourth street and Wooster street, and that the executors charged $100 more for the lot at the corner of Wooster street than they charged for the other lot; and that in the sale of the lots devised by Mrs. De Peyster to her daughter, the agent who sold them was authorized by Mr. Champlin, the husband of the devisee, to represent that the streets on the estate of Mrs. De Peyster were appropriated as such, and would be ceded to the corporation free of expense to the purchasers. It was further shown that the property required for Fifth street is not in fence, but is open, free for passage, and used by the public. After receiving these proofs, the commissioners re-considered their estimate and assessment, but were of opinion that it did not require any correction or alteration, and on the 30lh April, 1830, made a supplementary report to that effect. On the 23d November, 1830, the reports of the commissioners were presented to and confirmed by the supreme court. Whereupon Wyman, one of the objectors, sued opt a writ of error.

The following opinion was delivered in the supreme court by the Chief Justice, on confirming the report of the commissioners of estimate and assessment :

“ The lots of the present objectors, Wyman, Layton and Moses, lie in the space denominated upon the maps Fifth street, *and over which, it is contended by the corporation, that the purchasers from Mrs. De Peyster’s trustees, and the public at large, have a perpetual right of way, whenever the corporation think proper, by appropriate proceedings, to convert such spaces into public streets. The question whether such easement exists, when

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the proprietor of lands has thus appropriated them to public use, must be considered as settled in this court and in this state. The history of the question is not long, and I will briefly refer to some of the cases in which it has been discussed.

It was for the first time distinctly presented to this court in the case of Mercer street, in reference to the same estate of Mrs. De Peyster, 4 Cowen, 542. In that case the commissioners were of opinion that the owners of the lots which had been sold, bounded upon Broadway on one side and Mercer street on the other, had thereby impliedly covenanted that Mercer street should be subjected to the perpetual easement of a right of way, and were not entitled to compensation for such easement, but only for the fee of the land which had been transferred to ■ the corporation by virtue of the statute, and the proceedings under it for opening the street. The owners appealed to the supreme court, who heard the question argued and came to the conclusion that the conveyances did not impart any such easement, particularly as the purchasers had access to their lots upon Broadway, which was an open street, and that Mercer street was therefore a mere boundary.

The same question was presented to the court in the case of Seventeenth street, 1 Wendell, 262, with some slight difference. This court was then led to a re-examination of the question, and after full argument, came to the conclusion that the conveyance of lots bounded upon streets which had not been opened by the corporation, but which were in fact open, gave to the purchasers a right of way over those streets, and that when the corporation adopted those streets and instituted proceedings for opening the same according to law, the former proprietor was not entitled to compensation for anything but the naked fee, subject to the easement, and therefore that the compensation should be nominal. The reasoning of Mr. Justice Platt in Underwood v. Styvesant, 19 Johns. *R. 186, was applicable to that case and is applicable here. He held the implied contract to be this : “ I engage to give the ground for the streets according to the map, upon condition that the corporation shall ratify it.” In the case of Seventeenth street, it distinctly appeared that an enhanced price was given for the lots, in consideration of the appropriation of the streets, as laid down upon the map, to the public use as streets. Although the fact does not appear in this case that an enhanced price was given to the estate of Mrs. De Peyster in consequence of a similar appropriation, yet the court are at liberty to assume that such was the fact, from the known general practice in similar cases.

The next case in the order of time, which came before the court, was Lewis street, 2 Wendell, 472. The case of Seventeenth street was distinguishable from Mercer street, inasmuch as the purchasers had no access to their lots but through Seventeenth street, whereas the purchasers in Mercer street had access through Broadway. Lewis street, in that particular, was precisely like Mercer street. It became necessary, therefore, to overrule the case of Mercer street, and it was overruled and declared to have been incorrectly decided. In that case the principle was established, that in the city of New-York the purchasers of lots bounded upon streets not yet opened, are not subject to any assessment for opening such streets, to pay the owner for the value of the land the presumption being that an enhanced price was paid for the lots, in consideration of being upon a street or streets.

The same question, with others, was again presented in the matter of Ridge and Attorney streets, 8 Wendell, 85. This court adhered to its former decisions in Seventeenth and Lewis streets. A writ of error was brought to the court of errors, when the decision of this court was affirmed. His honor, the

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chancellor, in a learned opinion, supported the decision of this court, and pre sented some other views of the question as connected with the principles of equity.

Upon authority, therefore, this point is at rest.

2. I proceed to inquire whether a release of the easement by the owners of certain lots fronting on Fifth street, discharges the land in question fiom the easement.

*The answer to this question probably depends on another, and that is, whether the releasors are the only persons having interest in this easement or right of way. In the matter of Lewis street, we adverted to the fact that the whole or a great part of the Island of New-York was laid out into avenues and streets, which are designated upon a map of the city, though not actually opened. A number of these streets may be laid out over the lands of the same proprietor, as was the fact in relation to the estate of Mrs. De Peyster. If the streets are opened by legal proceedings, before the sale of any o'f the lots, the owner of the tract of land must necessarily make the street at his own expense. If the commissioners go through the ceremony of estimating the value of the land, and allowing it to the owner for damage, they must assess the same sum for benefit upon the same person, as owner of the adjoininglots, together with the expense of making the street. If the owner sells the lots, he sells them with all the privileges and advantages appurtenant to them—one of which is, that the street shall be opened without paying for the land taken for the street, and receives an enhanced price; and this benefit, I apprehend, is common to every purchaser from such proprietor, whether his lot fronts on the particular street or not. The purchaser of every lot gives an enhanced price, in consequence not onty of having a street adjacent to his own lot, but of having a number of streets in the vicinity of his lot, according to the plan or map by which he purchased; and if no other map is used to designate the lots sold, the commissioners’ map must control and be considered as referred to in the conveyance.

If a proprietor therefore sells a single lot he adopts the map, and thereby makes an appropriation or dedication to public use of the ground laid out as streets. I have before remarked that if he makes no sales of lots, the operation of the statute, by compelling him to make the street, produces in effect the same thing, to wit, an appropriation or dedication to the public, of the ground called streets upon the commissioners’ map. The result therefore is, that whether the proprietor sells the lots or not, the ground laid out as streets are dedicated to public use ; all the grantees from the same ^proprietor have an interest in all the streets laid down upon the tract of land owned by such proprietor. In truth, every person liable to be assessed may be said in one sense to have an interest in such dedication. In the case of Livingston v. The Mayor, &c. of New-York, the chancellor has taken a very proper distinction between grants of property in the country and of city lots. The rules of law applicable to the former are not so to the latter. It was the application of the general doctrine of a right of way as it exists in the country, which led to the error in the Mercer street case, whereas we are now convinced that the true rule as to city lots is, that the purchaser of any lot upon any given plot belonging to the same proprietor, exempts such purchaser from assessments to pay for any street laid down upon the lands of such proprietor. The recognition of the plan, laying out his ground into streets, is a dedication of the streets to be taken for public use whenever the corporation shall think proper to open them. In all such cases the proprietor of land receives compensation for the streets, in the enhanced price which he receives for the lots. It follows from these

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premises that the persons who executed the releases in this case were not the only persons interested in the street in question ; and it also follows that there had been a dedication to the public of Fifth street, to be taken without compensation for the right of way, whenever the corporation choose to open it.

Upon these grounds, we are of opinion that the report of the commissioners must be affirmed.

The cause was argued here by

J. A. Lott & H. W. Warner, for the plaintiff in error.

R, Emmet & D. Selden, for defendants in error.

Points on the part of the Plaintiff in Error.

1. The acts of the legislature of the state of New-York, under color of which the proceedings for opening Fifth streets in the city of New-York have taken place, are contrary to the *constitution of this state, and of the United States, and therefore void.

2. The .presumption that “ an enhanced price,” was paid to the executors of Mrs. De Peyster for the Whittemore lot, in consideration of its being situated on Fifth street, is fully rebutted by the evidence.

3. If it were admitted that Whittemore, by the executors’ deed in his favor acquired a right of way over the ground assigned for Fifth street by the public map, yet that right was extinguished by Dean and De Peyster’s release.

4. The doctrine of the cases of Lewis street and Ridge and Attorney streets ought not to be extended.

5. The opinion of the court below is erroneous in supposing that the right of way, if any, created by the Whittemore deed, was one in which other persons than Whittemore and his assigns could have any legal interest.

6. That opinion is again erroneous in supposing that the executors of Mrs. De Peyster, either by the deed to Whittemore or otherwise, made a gratuitous dedication of the ground in Fifth street to public use, so as to deprive the estate and its grantees of their right to full compensation, in the event of the street being afterwards opened.

7. The plaintiff in error purchased on the faith of the law as it then stood, and he ought not to be prejudiced by the retrospective application of a new rule of law subsequently introduced, and which for practical purposes had no previous existence.

Points on the part of the Defendants in Error.

1. The appropriation of Fifth street by Mrs. De Peyster, precluded her executors from selling or disposing of the land, contrary to the map.

2. The defendants or the public never waived their right to Fifth street, by any act; and could not waive such right so as to expose the grantees of the adjoining lots to a liability to pay for iheland taken for the street.

3. The defendants duly laid out Fifth street in 1817, and any appropriation of the ground for such street, made subsequently, was legal and binding.

*4. The purchases and sales by other persons in the vicinity, in reference to such appropriation, became and are binding upon the estate of Mrs. De Peyster, and the rights of such persons will he protected by the court.

5. The re-purchase of the lot at the S. W. corner of Fifth street and Broadway, being pendente lite, cannot affect this question ; and even if it had been previous to the proceedings in this case, it would not have regained the

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street to the executors of Mrs. De Peyster, it having been appropriated by herself, and other sales and purchases having been made, founded upon such appropriation.

6. The selling of lots in Broadway, Mercer street, Wooster street and Fifth street, in reference to the maps, conferred on each of the purchasers a right to have the said streets opened through Mrs.DePeyster’s property, free of expense.

The following opinions were delivered in this court:

The object of the writ of error in this case is to set aside the proceedings of the justices of the supreme court, confirming the report of the commissioners of estimate and assessment upon the opening of Fifth street, in the city of New-York, from Broadway to Mercer street: on the ground that the commissioners had adopted an erroneous principle, in not allowing the plaintiff in error the full value of the lands covered by the street. Wyman purchased of the executors and trustees of Mrs. De Peyster, after the deeds to Whittemore had been recorded. He is therefore chargeable with notice of the rights which had been acquired under those deeds, and with notice of the contents of the map of the estate of Mrs. De Peyster, referred to in the deeds. His right to claim compensation for the land lying in the street is consequently the same, and no greater than the right of the executors and trustees would have been if he had not purchased from them.

The assessment of damages, in these street cases, must necessarily be made in reference to the rights of the parties as they exist at the time when the report of the commissioners is deposited in the clerk’s office for inspection, and notice #of such deposit given according to law. The object of the second report is, not to make a new assessment, in reference to newly acquired rights ; but if objections to the first report are made, the commissioners are to review their assessment, for the purpose of ascertaining whether they have made any mistake. If they are satisfied there was no error in the first report, they are not obliged to make a new assessment, upon different principles, because some of the parties interested have by subsequent conveyances, or releases, changed their rights.

The most that the commissioners could be justified in doing in this case, if the rights of the parties were in fact changed by the release from Dean and De Peyster to Wyman and the others, would have been in their second report to have allowed damages to Wyman, to be paid by an assessment of the same amount upon the lot belonging to the persons who executed the release. The power of the commissioners to change the assessment, however, even to that extent, is at least doubtful; and in this case it could not have been done, because there were mortgagees, interested in lot No. 7, who did not join in the release, and the value of the lot over and above the assessment might not'have been sufficient to pay off the mortgages. I apprehend, however, that the rights of Wyman were not changed by the release. If no person but the owners of lots fronting on a street could be benefited by the opening of the street, or injured by shutting it tip, the principle contended for by the plaintiff in error might be"correct; unless, indeed, the laying out of a town plot and selling lots in reference thereto, should of itself be deemed a conclusive act of dedication to the public of the streets and avenues laid down upon such plot. See City of Cincinnati v. The Lessee of White, 6 Peters’ Rep. 431 . But be that as it may, it is an indisputable fact that the value of city lots is enhanced by the opening of streets, avenues, and public squares in the vicinity of such lots, although the lots do not bound upon such street, avenue, or public square. The presumption, therefore, that the vendor of city property who sells the same as bounded bystreets or avenues of particular dimensions, or who sells in

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reference to a map or town plot, on which streets, &c. are laid *down as being in the vicinity of the lots sold, obtains an enhanced value therefor, and impliedly grants the right or privilege to the purchaser of having such streets, &c. is a presumption of law, arising from the nature of the property and from the conveyance, and cannot be contradicted by parol proof. If the conveyance itself bounds the lot upon a street of a particular width, or as lying within a certain distance from the street, the dimensions and locality of which are described with sufficient certainty in the deed, and the grantor is the owner of the land upon which the supposed street is located, the grant of the privilege of such a street may well be implied. A similar implication arises when a conveyance is made with reference to a map or town plot on which the streets are laid down. In the case now under consideration the devise of the two southerly lots of the block to Mrs. Champlin was made with reference to the city map on which Fifth street, as well as Fourth street, were laid down ; and the deeds to Whittemore also referred to the map of the estate of Mrs. De Peyster, which was made after her death, and on which the streets were laid down in conformity to the city map. The executors and trustees had a right to sell and dispose of the whole property, including the land covered by the streets, in such manner as they should think advisable. They had therefore the power to lay it out into blocks and lots, and to sell it as city property, with the privilege of streets appurtenant thereto, as easements or urban servitudes. Many persons other than those from whom the release was obtained, had therefore the right to insist upon having this street opened whenever the corporation should think proper to allow the same to be done ; and the value of the land to the owner of the fee was merely nominal, notwithstanding the release.

For these reasons I think this case is not distinguishable from that of Livingston v. The Mayor, &c. of New-York, 8 Wend. Rep. 85 , decided by this court in December, 1831 ; and that the judgment of the supreme court should be affirmed.

*By Senator Sherman. About the time of the decision of the supreme court of this state in the case of Mercer street, 4 Cowen, 542, the executors of Mrs. De Peyster being disposed probably to avail themselves of the benefit of that decision, put up for sale at public auction, amongst others, the lot purchased by the plaintiff in error. What the object of the plaintiff in error was in buying a lot lying within the established limits of a street, on which no permanent improvement could be made or buildings erected, does not appear. It might have been an expectation of obtaining, by the rise of property, a greater amount in damages than he paid for the same, whenever the street should be opened.

It is contented, on the part of the appellant, that this case is distinguishable from the case of Ridge and Attorney streets, decided in this court, 8 Wendell, 85, and the case of Lewis and Seventeenth streets, decided in the supreme court, 1 Wendell, 262, and 2 id. 472, in the following particulars : 1. That Fifth street had not been travelled as a public thoroughfare for any given number of years, so as to warrant the presumption that the ground had been abandoned by the owner ; 2. That no enhanced price had been paid for the lots fronting on the same, in consideration of its being opened free of expense ; and 3. That if tfip lot was sold subject to an easement or right of way, the same was released by the deed set forth in the case, signed by Dean, De Peyster and Champlin.

As to the first ground. It is true that it does not appear that Ffth street had been used as a public thoroughfare for any definite time; but it was open for public use in 1830, before it was taken by the commissioners. It was not

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travelled, I presume, on account of the uneven surface of the ground, as stated in argument, except by foot passengers. As to the cases of Ridge and Attorney streets and Seventeenth street, it will be found, as I apprehend, that neither of those cases were decided on the ground of lapse of time. Although, in the first mentioned case, such a dedication might have been presumed, there were other circumstances sufficient to justify the application of the principle of an immediate dedication. Had Mr. Livingston, in the case of Ridge and Attorney streets, or had Mrs. De Peyster, in this case, thrown open the streets to the *public without selling off lots fronting on the same, then lapse of time, I apprehend, would have been the proper inquiry, viz. whether the streets had been used as thoroughfares for a sufficient length of time to presume an abandonment by the owners ; for after such usage by the public, individual rights may be acquired improvements made, and interests transferred, in reference to such thoroughfares ; and it would be a violation of good faith for the owner, under such circumstances, to close them. But in the view I have taken of this point, it is not important whether the street had been travelled for any given length of time or not. I consider the present case of Fifth street as resting on the principle of immediate dedication.

Where a man lays out his ground into lots, and sells and conveys the same,' fronting on or bounded by streets, so laid out through the same, the easement or / right of way over such streets passes as appurtenant to the grant, and vests in , the grantees in common with the public. Such circumstances are per se an ■ immediate dedication of the streets, unless, as in the case of Underwood v . Stuyvesant, 19 Johns. Rep. 186 , the streets laid out depend on a contingency ; or are contrary to some local lawn The grantor cannot sell or dispose of the* ground, or use it for any other purpose; he has no individual interest remain- *. ing, except the nominal fee in front of his adjoining ground not. disposed of.

The Island of New-York, as is well known, has been surveyed and laid out into avenues and cross streets, under and by virtue of an act of the legislature, a map of which was made by the state commissioners, adopted by the corporation of the city, and put on file. To insure uniformity and prevent the confusion of a variety of plans, narrow streets and frequent alterations, the corporation as well as individuals are prohibited from laying out or opening any other streets than those on the general map. Fifth street in question is one of the streets contained in the general survey ; and the map, or a copy of that section including her ground, is referred to in the will of Mrs. De Peyster. By this will she devises certain lots to Mrs. Champlin, recognizing Fifth street; and her executors, in carrying her will into effect, sold and conveyed lots, and *bounded the purchasers in their deeds by the same street, and by other streets marked out on the map. Thus the map was recognized as her own—and it- becomes, by reference in the deeds, a part of the conveyance. These circumstances bring Fifth street within the principle of former decisions, and make it a dedicated street by the original owner of the ground ; and this, in my opinion, is in accordance with the intention of Mrs. De Peyster, as she appears to have made no specific disposition of the ground within the limits of the street to any one. It is therefore reasonable to suppose that she left it for the use of the grantees of the lots, in common with the public. The owner of ground in the city of New-York is often benefited by this course of proceeding, in preference to having the ground taken by commissioners of estimate and assessment; for although they would be obliged, by the law under which they act, to allow damages to the full value of the ground taken, it would be their duty to assess them back upon the adjoining ground of the owner and others benefited. And where the street to be opened is situated above

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the line of the state commissioners, and the owner’s ground extends beyond half blocks each way, he would have to bear the whole amount of the assessment. The damage and benefit being equal, his loss would be the costs and expenses of the commissioners’ proceedings.

The principles of law in relation to opening streets in the city of .New-York having been recently adjudicated in this court, and so clearly and correctly illustrated by the chief justice of the supreme court, in the case of Lewis and Seventeenth streets, I consider it unnecessary to refer to many authorities on the subject. I will only advert to one case lately decided in the supreme court of the United States : White v. The City of Cincinnati, 6 Peters’ R. 432. This case and the case of Ridge and Attorney Streets presented the coincidence of two cases depending at the same time in different and distant tribunals, involving the same question, and resulting in the same decision. It is the most recent case reported, in which the doctrine of dedication of streets and public squares is ably and fully discussed. The court say, “ Dedications *must be considered in reference to the use for which they are made ; and in a town or city, streets require a more enlarged right over the ground, to carry into effect the purposes intended, than may be necessary for highways in the country.” “ Dedications do not always rest upon length of possession, for in the case 3 Bingham, 447, the question left to the jury was whether the thoroughfare had been used with the assent of the owner of the soil, and not for what length of time. A parol dedication is good, and generally the only one made ; and although there is no grantee to take, it vests in the public, and is different from ordinary grants, and is construed upon principles to suit the nature of the case ; they are similar to the case where a man lays out a street or highway over his own land, where there is no grantee of the easement, yet it takes effect as a grant to the public use, who have the right of passage through, not the absolute property.” The fee, as appears to be well settled, remains in the owner of the soil, or the owners on each side ad filum vice, to whom the original owner may have passed the freehold. The fee of the road passes to the successive owners of the lots in fee, fronting on the street or road, as appurtenant to their grants, and necessary to the enjoyment of the freehold. 1 Burr. 145. 2 Coke, 705. 15 Johns. R. 447. 6 Mass. R. 454 . 3 Mason, 280. 1 Day’s R. 103. But the easement or right of way always remains in the public. On the first point, therefore, I am of opinion that there was an immediate dedication of Fifth street, and that lapse of time was not necessary to be shown in a case of this kind.

Secondly. It does not appear that there was an enhanced price eo nomine paid for the lots, in consideration of the easement; but it cannot, I think, be doubted that Mrs. De Peyster received indirectly an enhanced price for her lots, and was thereby compensated for the ground of Fifth street. It. was the street that gave a character and recommendation to the lots, and enhanced the value of the adjoining property. This is the natural consequence of opening streets in the vicinity of a city, where population is increasing and constantly extending itself over a greater space of territory. But I do not view this point as important in the decision of this case, as I *cannot see how it can have any particular bearing on the principle of dedication.

Thirdly. If there was a dedication of the ground of Fifth street, which I apprehend has been shown, can the release of Dean and De Peyster have any bearing or effect upon the case ? I apprehend not. In whom did the right of way vest? In the public, if in any one, and if so, it is not, I apprehend, a subject of individual release. The judge of the supreme court, who delivered the opinion in this case, very properly asks, are the releasors the only persons

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who have an interest in the easement ? According to the decision of the United States court in Peters, above referred to, the whole public have an interest in common with every other individual. This being the case as I apprehend it, the release I consider inoperative.

I am therefore of opinion that there was a dedication of the right of way through Fifth street, and that such dedication was immediate; that the appellant bought the lot in question subject to such right of way; that the same was not released; and that the judgment of the supreme court to be affirmed.

The court being unanimously of the opinion that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.