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In re Walton Ave. In City of New York

Supreme Court of New York, Appellate Division

July 7, 1911

In the Matter of the Application of THE CITY OF NEW YORK, Appellant, Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired to the Lands, Tenements and Hereditaments Required for the Purpose of Opening Walton Avenue from One Hundred and Sixty-seventh Street to Tremont Avenue. On Petition of JAMES A. DIMELOW, Respondent.

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APPEAL by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of April, 1911, granting the petitioner's motion and referring to commissioners of estimate and assessment the determination of his claim for compensation for closing and discontinuing a street pursuant to section 14 of chapter 1006 of the Laws of 1895.


James Regan FitzGerald, for the appellant.

Benjamin Trapnell, for the respondent.


This appeal presents a question under the much-discussed Street Closing Act (Laws of 1895, chap. 1006), which has not heretofore been presented for judicial consideration. That question is as to when the owner of property affected by the closing of a street must file a claim for such damages as he may have sustained thereby, when the actual closing does not take place until more than six years after the filing of the general map or plan indicating an intention that such street shall be closed and discontinued. The act itself contains a limitation of time for filing claims, being six years after the filing of the map indicating such closing, and the point we have to determine is whether or not that limitation applies to a case like the present. The Street Closing Act was passed to meet a condition of very serious confusion which prevailed in that portion of the city of New York lying north of the Harlem river, and now known as the borough of the Bronx, for although the act is general in terms, its principal application is to the territory indicated. Originally the city of New York lay wholly south of the Harlem river, being confined to Manhattan island and the adjacent waters and islands. From time to time, as the population increased, parts of Westchester county lying north of the Harlem river were added to the city and county of New York, being known for years as the annexed territory, or the twenty-third and twenty-fourth wards. The territory thus added embraced a number of villages and hamlets, and large tracts of land had been laid out

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by the owners thereof upon maps duly filed, with streets and avenues indicated thereon. Few of the streets and avenues thus indicated had been actually opened for travel, but many conveyances had been made in which the property conveyed was described with reference to such maps, and in which the lots conveyed were bounded upon said projected streets and avenues thereby giving to the grantees private easements over them for street uses. There were also a great number of roads and highways in actual use as to which the abutting owners had easements. In time it became desirable to adopt a systematic plan of streets and avenues and other highways to cover the whole territory, and to fit it for urban uses, and acts were passed authorizing the public authorities to prepare and adopt such a comprehensive system and to make and file maps thereof. This was accordingly done. As was inevitable, such a comprehensive and systematic scheme of streets, avenues and highways conflicted in very many cases with the unsystematic scheme of streets and highways which had theretofore existed, and required the discontinuance and closing of many streets, avenues and other highways then actually in use, or merely projected, and it became necessary to provide for their legal closing. To effect this the act of 1895 was passed. The framers of that act had two kinds of highways to deal with, those in actual use, and those merely projected and laid out on filed maps. In both cases the abutting owners had or might have claims for damage arising out of the discontinuance of the highway in which they held easements. These two kinds of highways required different treatment. As to those which were merely projected and laid down on some map, but were not and never had been in actual use, there was no obstacle to immediately divesting them of their character as highways, and whatever damage the abutting owner might suffer thereby would accrue at once. As to those highways, however, in actual use, it was deemed to be impracticable to discontinue them, until some new access to the property which abutted upon them was provided under the new plan of streets and avenues. The act, therefore, provided (in its 2d section) that the local authorities authorized by law to lay out streets, avenues and roads in a city or any district thereof and to make and

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file a map or plan showing the same, should, upon any map so made and filed, designate only the streets, avenues and roads to be laid out and continued, omitting therefrom all former streets, avenues, roads, alleys, highways, lanes and thoroughfares which they might determine to discontinue or close. It was then provided that, '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.' This provided for the cases of projected streets and avenues laid down on some map or plan, but not actually open and in use. All such became legally closed and discontinued at once, and whatever damage the abutting owners suffered by reason of the destruction of their private easements, accrued at once upon the filing of the map or plan.

As to existing streets, avenues, etc., in actual use when the general map or plan was filed, a different provision was made as follows: '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.' Thus in case of a street, road, etc., actually opened and in use when the permanent map or plan is filed, the legal as well as the physical closing is postponed until the opening of a street or avenue bounding the plot or square, and whatever damage is worked to an abutting owner

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in consequence of the closing accrues at the time of the legal closing and to the person then owning such abutting property. Provision is made for ascertaining the damage sustained by abutting owners either upon application of the corporation counsel or upon application of an aggrieved property owner. It is, however, provided 'that within six years after the filing of such map [meaning the permanent map or plan] any owner or owners interested and affected by such discontinuance and closing shall present to the chief financial officer or comptroller of such city a written statement or claim for compensation, and a request that such proceeding be instituted for the ascertainment and determination thereof, or be forever barred from claiming compensation for such closing or discontinuance.' (ยง 5.) We have already held that this provision applies to the case of an owner of land abutting upon a projected street, road or avenue not actually in use when the permanent map or plan was filed, and which, therefore, became ipso facto legally discontinued on the filing of the map, for it was then that the injury was occasioned and the damages accrued. (Matter of Richard Street,138 A.D. 821; Matter of Mayor, etc. [ Grote Street], 139 id. 69.) We are now, however, presented with a very different state of affairs. The petitioner's property abuts upon an old street known as Hawkstone street, which was indicated on the permanent map filed November 2, 1905, as a street to be closed and discontinued. That portion of it upon which petitioner's land abutted was shown on the permanent map or plan as contained within a block or plot bounded by Walton avenue, Townsend avenue, East One Hundred and Seventy-second and East One Hundred and Seventy-fourth streets, no one of which was then actually open and in public use. Hawkstone street was then open and in public use, and it ...

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