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In re Decatur St. in City of New York

Supreme Court of New York, Appellate Division

June 18, 1909

IN RE DECATUR ST. IN CITY OF NEW YORK. APPEAL OF WALKER.

Appeal from Special Term, Kings County.

In the matter of the application of the City of New York to acquire lands to open Decatur street. From so much of an order of the Special Term as directed the payment to the City of New York and others of certain awards made for lands taken by the city, Frank B. Walker appeals. Affirmed.

[117 N.Y.S. 856] John M. Perry, for appellant.

James A. Sheehan, for respondents Schmitt, Schauf, and Jung.

Merle I. St. John, for respondent Wenzler.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and MILLER, JJ.

GAYNOR, J.

Streets to be opened in the future, including the one now called Decatur street, were laid out on a tract of land in the township of Bushwick, pursuant to chapter 296, p. 437, of the Laws of 1852. The said town afterwards became a part of the city of Brooklyn. The owner of the said tract also made and filed a map thereof by lots and showing the said streets, and thereafter sold the same by descriptions referring to the said streets. The said streets thereby became subject to the easements of the said lots thereon. In 1903 the city of New York acquired the fee of the land in the said Decatur street for street uses by a proceeding to open the said street. Awards for several parcels thereof were made to " unknown owners." The said parcels had not been included in the original conveyances of the abutting lots, and in that way became disconnected therefrom, and the fee thereof remained in the tract proprietor. The appellant succeeded to such title, and brought this proceeding to get the awards. The court at Special Term has allowed him only $1 thereof in the case of each parcel, and given the rest to the abutting owners.

If the awards had been made to the owner of the fee, he would not need to have brought this proceeding. By the adjudication of the order of confirmation in the proceeding they would have been his, and he could not be deprived of them. But being to " unknown owners," they are for all persons whose interests, whether in fee or by easements, were involved in the taking, excepting any of such persons to whom their awards are made to them by name, there being none such here. The awards " were not restricted to the owners of the ultimate fee, but were intended to embrace all persons having any interest whatever in the lands" ; and the case from which this quotation is made is direct authority that the abutting owners have such an interest, however small or difficult of definition it may be (Matter of the Opening of Eleventh Street, 81 N.Y. 436). And that the award has to be divided between the fee owner of the street strip and the abutting owner is settled by authority. Each of them was entitled to only a nominal award and should have been given no more. The naked fee in the street, disconnected from the abutting lot, is presumed to have only a nominal value. In the case of City of Buffalo v. Pratt, 131 N.Y. 293, 30 N.E. 233,15 L.R.A. 413,27 Am.St.Rep. 592, the abutting owner owned the land in the street, and it was therefore of substantial value to the owner. If an exceptional case can exist where it is of substantial value to the owner when disconnected from the abutting land, the burden is on the owner to show it, which was not done here. In the same way the easements of the abutting owner, actually or theoretically taken in the taking of the street strip, are only of nominal value. But where instead of a nominal award, a substantial award is made to " unknown owners," it has to be divided between them in some way. There is no one to take it. That this is so, and that it is proper to make the division in the way the learned court below did, [117 N.Y.S. 857] namely, give the nominal fee owner $1 and the remainder to the abutting owner, for the equitable reason that an assessment to pay the awards and the expenses is cast on the abutting lands, is settled by authority. Matter of Opening of Eleventh Street, 81 N.Y. 436; Matter of Opening Beverly Road (Sup.) 115 N.Y.Supp. 208.

But it is said that it does not appear that such an assessment was cast in this case,-that the amount was not cast on a wide assessment district instead of on the abutting lands-or that the city did not pay a part of it. Well, this is all a matter of public record in the building in which our court sits, and we may inspect the same and see that the assessment was made in the usual way, i. e., to the centre of the blocks, to uphold the order below. Moreover, the brief of the learned counsel for the appellant raises no such question, but on the contrary argues that the abutters " acquiesced in the assessment" of the abutting lots for the awards and expenses, nor was it raised below. And finally it was held in Matter of the Opening of Eleventh Street, supra, that the said considerations could not affect the rights of the parties to have the award divided between them.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements.

All concur, except WOODWARD, J., who dissents.

WOODWARD, J. (dissenting).

In the year 1903 the city of New York instituted proceedings to acquire the title to land required for the opening of Decatur street, in the borough of Brooklyn. Commissioners were duly appointed and awards were made to the respondent Schmitt for parcel No. 7 in the sum of $1,662.12, to the respondent Schauf for parcels 10 to 21 in the sum of $1,589.78, to an unknown owner for parcels Nos. 24 and 25 in the sum of $246.64, and to an unknown owner for parcel No. 26 in the sum of $677.16. The report of the commissioners was confirmed on the 26th day of October, 1906, and no appeal has been taken from this determination, so that, no matter how excessive these awards may be, they are final and conclusive, even though it be assumed that they should have been but for nominal damages, and that the commissioners and the court when it confirmed the report mistook both the law and the facts applicable to the case. De Peyster v. Mall, 92 N.Y. 262, 269, and authorities there cited. These awards were made for certain definite parcels of land, and, so long as the awards remained in force, none of the parties could dispute that the amounts awarded were just and proper. It was sufficient for the owners of any of these parcels to show that the title was in them at the time the awards were made, and this fact entitled them to the moneys awarded to such parcels. De Peyster v. Mali, supra, pp. 269, 270.The appellant presented a petition to the Kings county Special Term in February, 1908, setting up an assignment from the devisees of Augustus Ivins made in 1907, and praying that amounts awarded for damage parcels 5, 7-21, inclusive, 24, 25, and 26, be ordered paid to him. The respondents Schauf, Jung, and Schmitt joined issue by the service of answers, and on March 3, 1908, the matter was sent to a referee, who found that the respondent Schmitt as [117 N.Y.S. 858] owner of the fee in the street to one-third of parcel 7 was entitled to the payment of one-third of the award for that parcel, and that the petitioner was entitled to payment of the whole of the award for damage parcels Nos. 8, 9, 10 to 21, 24, 25, and 26, and two-thirds of the award made to parcel No. 7, with interest. The respondents filed exceptions to the report, and, on the motion to confirm the referee's report, the Special Term entered an order denying the motion to confirm, and adjudged that the interest of the petitioner in each of the awards is the nominal sum of $1, and directing payment of the awards less such nominal sum and less the costs of the reference to the respondents, Schmitt, Jung, and Wenzler. That is, the learned Special Term, holding with the referee that the appellant Walker was the owner of the fee of the lands taken, lying entirely within the lines of Decatur street, in effect reverses the determination of the commissioners and the order confirming their report, and directs the payment of a nominal sum to the owner of the fee, and orders the payment of the balance of the award to persons who are claimed to have parted with no property whatever. We say that the court holds with the referee that the ownership was in Walker, for on no other theory could he be awarded nominal damages, and this ownership is recognized in the opinion handed down by the learned court. The learned court, after discussing the ownership of Walker, as to which there can be no reasonable ...


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