In the Matter of the Application of THE CITY OF NEW YORK, Respondent, by the Corporation Counsel, for the Appointment of Commissioners of Estimate and Assessment to Ascertain and Determine the Compensation Which Should Justly Be Made for the Discontinuance and Closing of West One Hundred and Fifty-first Street, from the Easterly Side of Riverside Drive Extension to the United States Bulkhead Line, Hudson River, in the Twelfth Ward, in the Borough of Manhattan, in the City of New York. JESSIE GILLENDER and FRANCIS HIGGINS, Appellants.
SEPARATE APPEALS by Jessie Gillender and Francis Higgins, claimants, from parts of 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 20th day of January, 1910, confirming the report of commissioners of estimate and assessment herein, as amended by a supplemental report, with notice of an intention by each appellant to bring up for review various intermediate orders in the proceeding.
Charles De Hart Brower, for the appellant Gillender.
James A. Deering, for the appellant Higgins.
L. Howell La Motte, for the respondent City of New York.
This is a proceeding instituted by the city of New York for the appointment of commissioners to ascertain and determine the damages caused by the closing of West One Hundred and Fifty-first street, west of the easterly line of Riverside Drive extension, excepting that part of said street which is included within the limits of Twelfth avenue at its intersection with said avenue.
The appellant Gillender is the owner of damage parcel No. 3, which abuts on the northerly side of the discontinued street, west of Twelfth avenue, and she has been awarded $17,760.71 therefor. She contends that the award is inadequate. The entire parcel is under water, and is unimproved, with the exception that a frame building stands partly thereon and partly on Twelfth avenue, and a narrow dock or pier extends partly along the easterly boundary of the parcel. It does not definitely appear what income she has been deriving therefrom, although it does appear that she received about $2,000 for the use of this dock and building and a station on parcel No. 4 and the use of the water front one year. The evidence with respect to the value of the parcel and to the damage caused thereto by closing the street is conflicting; and no theory is presented by the witnesses called by the city or by the owner upon which it can be determined with any degree of certainty what the value of the property was before the street was discontinued, or what its
value is with the street closed. It may still be utilized as river front property accessible from the river, but the only present access to it has been cut off by discontinuing the street. It still, however, abuts on Twelfth avenue, the title to which has been acquired by the city, but which has not been improved and is under water and at present affords no access to the property.
Under the grant by which the predecessor in title of appellant Gillender acquired title to this land under water from the city the grantee and his heirs and assigns were obligated on three months' notice from the city to construct bulkheads, wharves, streets and avenues in the streets and avenue adjacent thereto and to improve them for said purposes and maintain them at their own expense as required by the city, which obligation they have not yet been called upon to perform, but doubtless her obligation would not now extend to Twelfth avenue as changed in so far as the same was newly acquired. The case is one in which the personal view of the commissioners must be given great weight, and there is no basis presented by the evidence upon which the court would be justified in reversing the determination of the commissioners with respect to the amount of the damages.
The appellant Gillender also claims to be the owner of damage parcel No. 4, but the commissioners have found that title to this parcel is in the city, and have made no award therefor. The learned counsel for the appellant contends that the commissioners were not authorized to determine the ownership of the parcel. This contention is based on the decisions which hold that, where an eminent domain proceeding is instituted to acquire title to property, the party instituting the proceeding cannot claim that it already has the title or easement which it seeks to condemn. ( Matter of City of Yonkers, 117 N.Y. 564; City of Geneva v. Henson, 195 id. 447; Matter of Village of Olean v. Steyner, 135 id. 341.) We are of opinion that these authorities are not applicable here, and that the commissioners had jurisdiction to determine the question of title. This proceeding was not instituted to acquire land, but to determine the damages caused by closing the street. The proceeding was instituted by the city pursuant to the provisions of section 4 of
chapter 1006 of the Laws of 1895 for the appointment of commissioners to ascertain and determine the compensation which should justly be made to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises, rights, easements or interests therein, taken, affected, damaged, extinguished or destroyed by the discontinuance or closing of the street. No one was specifically made a party to the proceeding by the city, but, pursuant to the requirements of the statute (§ 6), the commissioners gave notice of their appointment by publishing the same in the City Record, and required all parties and persons interested to present their claims, specifying the time and place when they would be afforded a hearing. The appellant Gillender thereafter filed a petition with the commissioners claiming that she owned certain premises, without describing them, which were damaged by the closing and discontinuance of the street, and praying that a just and adequate award be made therefor to her. It may be as claimed that the proceeding was instituted in consequence of the injunction she had obtained, but that is not material, for she could have compelled the city to institute it. She came into the proceeding pursuant to this petition, and thereafter claimed title to both of the parcels now known as damage parcels Nos. 3 and 4, and gave evidence which she contends shows her title and her damages. The city also gave evidence tending to show title in it to parcel No. 4. In the year 1837 one Carman acquired title to the upland extending from the Hudson river between the center line of One Hundred and Fifty-first street and the center line of One Hundred and Fifty-third street easterly to Kingsbridge road. Damage parcel No. 4 lies below and to the west of the original high-water line of the ...