In the Matter of the Application of the CITY OF NEW YORK, Relative to Acquiring Title, etc., for the Opening and Extending of Van Alst Avenue, etc., in the First Ward, Borough of Queens, City of New York. JOHN CARTLEDGE and Others, Copartners, Doing Business under the Firm Name and Style of JOSEPH WILD & COMPANY, Appellants; The CITY OF NEW YORK and Others, Respondents.
APPEAL by John Cartledge and others, copartners, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of April, 1910, confirming the report of commissioners of estimate and assessment herein.
R. A. Mansfield Hobbs, for the appellants.
Joel J. Squier [Norman J. Marsh, William B. R. Faber and Archibald R. Watson with him on the brief], for the respondent the City of New York.
Clarence Edwards, for the respondents Everett and Payne.
These proceedings were started in February, 1899. The report of the commissioners was presented for confirmation on the 12th day of May, 1909, resulting in the order appealed from. The only questions presented upon this appeal relate to damage parcels Nos. 84 and 85 as shown on the commissioners' map, and grow out of rival claims to the awards, and the questions are complicated by the attitude assumed by the city of New York, which, as respondent, claims the right under the decision of the court in Matter of City of New York (196 N.Y. 286) to contest the amount
of the award to the owners of both of these parcels, on the theory that the award was for lands incumbered by a street easement, and should, therefore, be but nominal, notwithstanding the fact that the awards have been confirmed on motion of the city of New York. Passing over the fact that the only question presented upon this appeal arises between the owners of parcels Nos. 84 and 85, and assuming that the city has a right at any stage of the proceeding to bring into question the justice of an award, we are of the opinion that the facts in this case do not bring it within the rule of the case relied upon, from the fact that neither of the owners of the parcels involved in this proceeding, nor any one else so far as the record shows, has any street easement in the premises. It is undoubtedly true, as urged by the learned corporation counsel, that 'One of the common forms of granting private easements over streets is by filing a map and then selling with reference to such map,' but this does not concede that a mere reference to a map, not made by the grantor, for a boundary line, is a selling with reference to such map. Prior to 1884 damage parcels 84 and 85, together with the surrounding territory to the extent of about twenty-five acres, were owned by James W. Gerard and others, from whom Joseph Wild & Co., the appellant, and George E. Payne derived title to the premises adjoining these damage parcels. Subsequently Payne sold his interest in the said property to Ida J. Everett, taking back a lease of the same for a period of five years, with a five years' extension clause, both of which have expired. The contention of the city of New York is that by the conveyances from Gerard to Wild & Co. and Payne easements were created in the damage parcels involved in this appeal, and that the commissioners proceeded upon an erroneous theory in awarding damages for the land as being free from such easements. The damage parcels are located in what is to be known as Van Alst avenue, and the several deeds under which Wild & Co. took title (for there were several of them) are identical in language and legal effect, in so far as they relate to the question here under discussion. They convey 'All the equal undivided three-fourth parts of all that certain piece * * * beginning at a point formed by the junction of the Southwesterly line of Dey Street with the Southeasterly line of Hopkins Avenue and running thence in a Southeasterly direction
four hundred and seventy-nine (479) feet, one and one-half (11/2) inches along the Southwesterly line of said Dey Street to the Northwesterly line of Van Alst Avenue, and running thence in a Southwesterly direction two hundred (200) feet, six and three-quarter (63/4) inches along the Northwesterly line of said Van Alst Avenue to the Northeasterly line of Orange Street, and running thence in a Northwesterly direction four hundred and forty-one (441) feet, nine and one-quarter (91/4) inches along the Northeasterly line of said Orange Street to the Southeasterly line of said Hopkins Avenue and running thence in a Northeasterly direction two hundred and one (201) feet, three (3) inches along the Southeasterly line of said Hopkins Avenue to the point or place of beginning be the said several dimensions more or less; the said Streets above named being Streets projected or laid down on the Map or Plan of Long Island City. Together with a right of way as now existing through adjoining property of said parties of the first part until said Hopkins Avenue or Van Alst Avenue or other streets leading or giving access to said premises are opened by the Municipal authorities of said city.' Undoubtedly the language of this and the other deeds to Wild & Co. excluded Van Alst avenue; no one seriously contends that there was ever any intention on the part of Gerard to convey any part of the fee of Van Alst avenue, and the question presented, so far as the city of New York is concerned, is whether this language conveyed an easement for street purposes in such avenue. If it did, why was the provision made, 'Together with a right of way as now existing through adjoining property of said parties of the first part until said Hopkins Avenue or Van Alst Avenue or other streets leading or giving access to said premises are opened by the Municipal authorities of said city?' If there was any easement whatever impliedly granted, it was an easement as a street as distinguished from a mere right of way; as between the grantor and grantee Van Alst avenue was dedicated as a street, and the grantee was entitled to have the same opened for use, as shown on the map, and to have it kept open and free from obstructions, the same as though it were in fact a public highway. (Taylor v. Hopper, 62 N.Y. 649, and authorities cited.) But both by the construction placed upon the deed by the parties, and by its language, there was no present use to be made of Van Alst avenue; a right of way, as then established,
was granted to Wild & Co. 'until said Hopkins Avenue or Van Alst Avenue or other streets leading or giving access to said premises are opened,' etc., and it appears from the record that Wild & Co. made no use whatever of Van Alst avenue as a street up to the time that the city of New York took title to the premises, but on the contrary maintained a reservoir for the purpose of supplying their factory with water within the limits of such avenue, to the exclusion of any street use. If there was a grant of an easement in Van Alst avenue at all, it must have passed to the grantee upon the execution and delivery of the deed, but the language of the deed does not provide for any use of that avenue until it is opened by the municipal authorities, and, in the meantime, it is provided that the grantee shall have a use of a private way. For more than twenty years Wild & Co. have occupied the granted premises without asserting any right to make use of Van Alst avenue as a street, and it is hardly within the province of the city of New York to claim such an interest in Wild & Co. at this day. The reference to Van Alst avenue in the deed was merely for the purposes of the description, not to convey an easement, and the case is well within the rule asserted in Matter of Brook Avenue (40 A.D. 519; affd., on opinion below, 161 N.Y. 622).
We come then to the contentions of Joseph Wild & Co., the appellant. This company, although making no claim to any interest in parcel 84, yet contends that the award in that case is too high, and that the awards as to parcels 84 and 85 should not have been made subject to a leasehold interest of George E. Payne, valued at $2,500. We are unable to discover that the appellant has any interest in the matter so far as parcel 84 is concerned; no claim was made to any interest in such parcel by the company, and the fact that the award may be too high in one case does not give the appellant any greater rights in the premises in which it claims an interest. And, if the appellant has, in fact, no interest in parcel 85, it is not in a position to contest the question of whether the award was properly made subject to leasehold rights. Ida Everett is concededly the owner of parcel 84, ...