Appeal from Trial Term, New York County.
In the matter of the application of the Mayor, etc., of the City of New York, relative to the acquiring of title to land to open Walton avenue. From an order confirming a special report of the Commissioners of Estimate and Assessment, embracing awards for damages for the discontinuance of streets in the vicinity of Walton avenue, and assessing the amount of such awards, together with the costs and expenses of the proceedings on the lands benefited by the discontinuance of the streets, the City of New York and Henry D. Clark, a property owner, appeal. Affirmed in part, and reversed and remitted in part.
[116 N.Y.S. 474]
Thomas C. Blake (John P. Dunn, on the brief), for appellant City of New York.
Joseph A. Flannery, for appellant Henry D. Clark, and for said Clark and certain others as respondents.
Harold Swain, for respondents Margaret E. Webber and others.
James A. Deering, for respondents James A. Woolf and others.
Walter S. Newhouse, for respondent August P. Windolph.
Charles V. Gabriel, for respondent Louis Brass.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ.
On the 18th day of March, 1897, an order was duly made and entered, appointing commissioners of estimate and assessment in proceedings for the opening and laying out of Walton avenue from East 167th street to Tremont avenue. Thereafter, from time to time, orders were made, on the application of property owners or of persons claiming to be interested in premises alleged to have been damaged by the discontinuance of certain streets in the vicinity of Walton avenue, appointing the same commissioners as commissioners to ascertain and determine the compensation to be awarded to the respective petitioners and to report the same to the court, pursuant to the provisions of section 14 of chapter 1006, p. 2051, of the Laws of 1895. The commissioners heard the claims and filed a special report on the 5th day of December, 1905. The city filed certain objections to the entire report awarding damages, and appellant Clark filed objections [116 N.Y.S. 475] to one of the awards. The objections were overruled, and the report was confirmed without modification. On the objections thus filed by the city questions are presented on this appeal with respect to whether rights to compensation for closing the streets have accrued, with respect to whether the streets were public streets and were open and in use as such, with respect to whether certain claimants were regularly before the commissioners and entitled to have their claims considered, and whether they were bound as to the amount of damages by the claims filed.
It is advisable to consider at the outset the statute under which Walton avenue was laid out and the streets are claimed to have been discontinued and the proceedings for ascertaining the damages sustained by closing the streets have been instituted.
Section 9 of the final maps of the Twenty-Third and Twenty-Fourth wards of the city of New York was duly filed in the various offices required by law on the 2d day of November, 1895. This map was validated by chapter 712, p. 859, of the Laws of 1896. See Matter of Mayor, 166 N.Y. 495-503, 60 N.E. 180.It had been prepared pursuant to the provisions of chapter 545, p. 965, of the Laws of 1890, as amended. By this map, part of Walton avenue described in this proceeding was laid out as a new proposed avenue. On the 12th day of June, 1895, prior to the filing of the map, chapter 1006, p. 2037, of the Laws of that year became in force. That act, in form, was general, and applied to the discontinuance and closing of streets, avenues, roads, highways, alleys, lanes, and thoroughfares in cities of more than 1,250,000 inhabitants, but, inasmuch as the city of New York was the only city having the population specified, its immediate application was to the city of New York only. The first section of the act authorized the local authorities of the city, in the manner therein provided, to discontinue-
" such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets and avenues and public places therein, or where other public necessity, in the judgment of such local authorities, requires the discontinuance thereof in whole or in part. The local authorities referred to in this act are the department, commissioner, board or officer heretofore authorized or which may be hereafter authorized by law to lay out streets, avenues, public squares or places in that part or section of the said city in which such discontinuance has been or shall be proposed or determined."
The map was filed by the local authorities authorized to lay out streets, avenues, public squares, and places in the section of the city to which it relates, and this is not questioned. Section 2 of the act of 1895 provides as follows:
" Sec. 2. The local authorities authorized by law to lay out, open, extend, alter or improve streets, avenues, and roads in any such city or district thereof and to make and file a map or plan showing the streets, avenues and roads so laid out, opened, altered, extended or improved shall, upon any map so made and filed by them, designate only the streets, avenues and roads, which they may determine to so lay out, open, alter, extend or otherwise improve as the permanent streets, avenues and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes [116 N.Y.S. 476] and thoroughfares which they may determine to discontinue or close. They shall also upon said map designate the public parks, parkways, squares, places and other public ways which they may determine to lay out and establish. Upon and after the filing of such map, the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon such map or plan, and all other former streets, avenues roads, highways, alleys, lanes and thoroughfares theretofore laid out, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain for any purpose whatever, a street, avenue, highway, road, alley, lane or thoroughfare, and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used. But in all cases where any such street, avenue, road, highway, lane, alley or thoroughfare is at the time of the filing of such permanent map or plan actually open and in public use, such parts or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection of any streets, avenues or roads laid out by the local authorities upon the permanent map or plan of said city or district thereof in which such square or plot is situated, shall ever after any one of the streets, avenues or roads bounding such square or plot shall be opened, cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used. The provisions of this section shall apply to all streets, avenues, roads, highways, alleys, lanes and thoroughfares or parts or portions thereof which have not been retained or shown upon any map or plan heretofore made and filed by or on behalf of the local authorities of such city as part of the permanent system of public streets, avenues, roads, public squares and places in and for that part of such city included within the district laid out upon such map or plan, and which have not been thereafter re-established by law or relaid out or otherwise thereafter lawfully laid out and established. But nothing in this act contained shall be construed as authorizing the local authorities to alter or change the general or permanent map or plan of said city or any portion thereof by laying out new streets, avenues, public squares or places, or altering, amending, extending or otherwise improving the streets, avenues, public squares and places heretofore laid out upon the permanent or general plan of such city otherwise than in the manner now provided by existing laws."
It must be now regarded as the settled construction of the statute that the Legislature intended to provide not only for the destruction of public easements but of private easements in the discontinued streets as well. Matter of Mayor, 95 A.D. 533, 88 N.Y.Supp. 769; Id., 119 A.D. 882, 104 N.Y.Supp. 1133, affirmed 189 N.Y. 551, 82 N.E. 1133.Said section 9 of the final maps of the Twenty-Third and Twenty-Fourth wards continued Jerome avenue as it then existed, and laid out Walton avenue, running parallel therewith about 450 feet southerly therefrom, and laid out Townsend avenue between them and parallel with them from East 170th street, continuing beyond East 174th street. It also laid out, some distance to the south of Walton avenue, a grand boulevard and concourse, running for the most part in the same general direction. It laid out certain other streets at right angles to Jerome and Walton avenues, extending between Jerome avenue and Grand Boulevard and Concourse. The streets in this section of the city, with the exception of Jerome avenue, prior to the filing of said map, ran in the main at angles of about 45 degrees to Jerome avenue and to the streets continued or laid out by this map. In other [116 N.Y.S. 477] words, the effect of the map was to change the course of streets in that section about 45 degrees by closing some and laying out others. This map leaves, or rather creates, one new block bounded by Jerome avenue on the northwest, by Belmont street on the northeast, by Townsend avenue on the southeast, and by East 172d street on the southwest. It will, I think, tend to facilitate a clear understanding of the questions presented to consider first the awards for lands within this new block. Parts of Seventh and Eighth avenues and of Walnut street, as they formerly existed, were within the boundary lines of this block, and as they were not continued on said map it was intended thereby to discontinue them. The owners of property in this block contended, and gave evidence tending to show, that those avenues and this street were at that time opened and in use as public streets. The city controverts that proposition, and the questions thus arising will be considered presently, but, for the purpose of presenting and deciding another proposition, it will be assumed for the present that they were at the time of the filing of the map public streets, opened and in use as such. Jerome avenue had been duly laid out, acquired, and opened, and was in use as a public street at the time this map was filed. The commissioners proceeded upon the theory that, since it bounded this new block on one side, the effect of filing the map was, by virtue of section 2 of the act of 1895, herein quoted, to permanently close the parts of these avenues and of Walnut street within that block, and they have estimated the damages of the property owners as of the date of filing the map. The city contends that this was error, and that, assuming these avenues and this street to have been open and existing streets, they were not closed and will not be closed until one of the other three streets bounding the new block, which are laid out on the map and which were not streets at the time of filing it, shall have been acquired by the city and actually physically opened up as public streets, and that until such time no damages will accrue to the property owners. I am of opinion that in this regard the commissioners proceeded upon the right theory. There are some expressions in the opinion of the Court of Appeals in Matter of Mayor, etc., 166 N.Y. 495, 60 N.E. 180, which are drawn to our attention as tending to hold the contrary. The court, however, was not considering this question, and evidently did not have the point in mind. It will be observed that section 2 of the act in question regards the streets shown upon the map filed as laid out by the local authorities who filed the map, regardless of the question as to whether such streets were then public streets and merely continued on the map, or whether they were new streets which had been neither dedicated as streets nor acquired for public street purposes by the city. The statute appears to have been framed upon the theory that, although some of the streets shown upon the map may have existed as public streets theretofore, the act of the local authorities in thus continuing them upon the map brought them within the permanent plan of public streets and more effectually insured their continuance as such. In short, it placed them in the class of permanent streets, and that act was deemed by the Legislature to constitute laying the streets out on the permanent plan. It is quite clear, even upon the theory of the learned counsel for the city, [116 N.Y.S. 478] that if Jerome avenue at the time the map was filed had not been a public street, actually opened and used as such, but the moment after the map was filed became a public street and was opened by and used as such, the parts of streets and avenues within the block bounding thereon would thereupon become discontinued, and the right of the property owners to damages would at once accrue. It is not questioned that it was competent for the Legislature to close any of these streets before new streets were opened, giving access to property abutting on the discontinued streets, leaving the property owner to his remedy for compensation as prescribed in the act; and that proposition would seem to be affirmed by the decision of the Court of Appeals sustaining the constitutionality of the act. The contention of the learned counsel for the city in this regard is that the Legislature did not intend to do so. It is manifest that the Legislature attempted to preserve a means of access to property owners in part by providing that an existing street which was opened and in use at the time the map was filed should not be deemed closed until one of the streets bounding the block should be opened; but it is evident that this would not afford access in all cases to lands fronting upon the discontinued streets, nor would the opening of all the new streets in all instances afford access to lands which previously had a frontage on a discontinued street. It is neither claimed that a street could not be discontinued until all of the streets bounding the block within which it was to be discontinued had been opened, nor that it could not be deemed discontinued as to any particular parcel of land until that parcel had an outlet upon a new street which had been opened for use. The constitutionality of the statute is not questioned, and therefore will not be considered. The parties merely differ with respect to the construction of it. I fail to see any logic in the construction for which the city contends. If the parts of existing streets within a block bounded entirely by new streets become legally discontinued as soon as the city acquires and opens any one of the streets bounding the block or part of it, then the streets within this block should be deemed discontinued forthwith upon the filing of the map showing the continuance of Jerome avenue on the permanent plan, bounding the block on one side, for that avenue was then a public street and opened and in use as such. The learned counsel for the city bases his argument principally upon the fact that in said section 2, herein quoted, the future tense is used in the clause, " shall ever after any one of the streets, avenues or roads bounding such square or plot shall be opened, cease to be or remain for any purpose whatever a street." He contends that, if the Legislature intended that the existence of a public street then in use bounding the block should have the effect of closing the streets, it would have expressly so declared, and that by declaring that when one of the streets bounding the block " shall be opened" it must have had reference to streets not already opened. That, I think, would be a technical construction, and not in accordance with the spirit and intent of the act.
The learned counsel for the city further contends, as already observed, that Seventh and Eighth avenues and Walnut street were not public streets. It is not claimed that the city ever acquired title to the streets. The theory of the respondents is that they became public [116 N.Y.S. 479] streets by dedication and acceptance. These lands were formerly within the village of Mt. Eden in the county of Westchester. On the 21st day of September, 1853, a map was filed in the office of the clerk of the county of Westchester purporting to be " A Map of the Village of Mount Eden near Upper Morrisania Depot in the Town of West Farms, County of Westchester, and State of New York. 1858. The property of Mrs. Margaret Woolf and Sons," showing that the survey thereof had been made by R. Henwood. This map showed these avenues and this street. Thereafter and on the 13th day of December, 1859, another map of the village of Mt. Eden was filed in the same office, showing, so far as material to the questions presented, the same property and the same streets and avenues, and indicating that the property was then owned by Thomas Woolf and brothers. These maps showed the property subdivided into village lots fronting on the various streets and avenues shown thereon. The owners thereafter sold and conveyed these lots to the present claimants or to their predecessors in title, describing the premises by subdivision lot numbers, and expressly bounding the same on the streets and avenues. The village of Mt. Eden became part of the city of New York in or prior to 1874 (see chapter 329, p. 432, Laws 1874). Pursuant to the provisions of chapter 604, p. 831, of the Laws of that year, and of chapter 436, p. 461, of the Laws of 1876, a map was made and filed in the department of public parks on the 21st day of February, 1879, showing, among others, these avenues and this street as then existing and continuing the existence thereof, the avenues, however, bearing new names with the old avenue numbers shown in black ink but crossed out. The map bears the following indorsement:
" Map or plan with field notes and explanatory remarks, showing the location, width, windings, courses and classification of streets, roads and avenues and public parks or places within that part of the Twenty-fourth and adjoining part of the Twenty-third Ward of the City of New York, bounded on the west by Jerome or Central Avenue, on the north by Woodlawn Cemetery and north side of Polham Avenue, on the east by the New York and Harlem Railroad, Hoffman Street, Fordham and Third Avenues and on the south by 161st Street in Morrisania, designated The Central District, as laid out and classified and discontinued and closed by The ...