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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 he 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 it 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 App. Div. 533, 88 N. Y. Supp. 769; Id., 119 App. Div. 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 av
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,
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 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 Commissioners of the Department of Public Parks of the City of New York, in pursuance of the provisions of Chapter 604 of the Laws of 1874 and Chapter 436 of the Laws of 1876. “Dated New York, April 17th, 1878.
“[Signed] Julius Munchwitz, Superintending Architect.
“[Signed] E. B. Van Winkle, Topographical Engineer." Extract from field notes and explanatory remarks: “The Streets, Roads and Avenues laid out by the commissioners of the Department of Public Parks, are indicated by red color, the side lines thereof by full red lines and the widths of the same by red figures.
“The Roads and portions of Roads which are discontinued and closed by said Commissioners are indicated by india ink shading.
"The Streets which are designated on this map as streets of the first, second and third class are indicated by the Roman Numerals I, II, III, respectively.
"Existing Streets, Roads and Avenues and the names by which they have heretofore been known are indicated by black lines and letters.
"Filed in the Department of Public Parks, February 21st, 1879. Filed in the office of the Register of the City of New York, February 28th, 1879.
"A. Porter Lord, Acting Secretary D. P. P.”
Said chapter 604, p. 831, of the Laws of 1874, authorized the commissioners of the department of public parks to lay out, survey, and monument streets, roads, and avenues in that part of the city embiacing this territory, and section 3 thereof provides as follows:
"The maps, plans and profiles of the said commissioners of the department of public parks, made and certified to as hereinbefore provided, shall be final and conclusive as to the location, width and grades of the streets, avenues and roads, public squares and places exhibited on such maps, plans and profiles, as well in respect to the mayor, aldermen and commonalty of the city of New York, as in respect to the owners and occupants of lands, tene ments and hereditaments within the boundaries aforesaid, or affected by said screets, avenues, roads, public squares and places, and in respect to all other persons whomsoever."
The validity of this provision as a complete and final acceptance of a street theretofore dedicated but not accepted has been sustained by ihe courts. Matter of Dept. of Public Parks, 53 Hun, 556, 6 N.
Supp. 779; Matter of Jerome Ave., 120 App. Div. 297, 105 N. Y. Supp. 319; Matter of Mayor, 24 App. Div. 9, 49 N. Y. Supp. 119. Said section 9 of the final maps of streets in the Twenty-Third and Twenty-Fourth wards, filed on the 2d day of November, 1895, also shows these avenues and this street, but indicates that they have been closed and discontinued by that map. This evidence clearly indicates a recognition by the city authorities of these avenues and this street and an acceptance of any dedication thereof, provided there was a sufficient dedication to authorize its acceptance. It was held in Matter of Department of Public Parks, supra, that, where the park commissioners in 1877 filed a map adopting the lines of a certain street theretofore laid out on a map made and filed by a private owner of the property, their act constituted an acceptance of the dedication thus attempted to be made, and that even the prior occupation of a portion of the street by a grantee of the owner who had made the dedication was ineffectual to revoke the dedication before such acceptance, because the revocation could only be made by the grantor. Of course, a dedication by the owner and an acceptance by the city authorities did not vest the fee in the city, and the fact that authority was conferred to acquire the fee to streets shown on the map of the department of public parks in 1879 does not militate against the dedication and acceptance of the easements for public street purposes. The city offered no evidence on the question of user of these avenues or of this street. The property owners gave evidence tending to show that the avenues and street in question, and in fact all of the avenues and streets on the maps of the village of Mt. Eden, were open and in use by the public for a long period of years prior to 1893. One of the city's experts testified that he had been familiar with this section for upwards of 50 years, and after testifying specifically that Seventh avenue had been opened and used by the public for over 35 years prior to 1902, and had been improved by the town authorities of West Farms, said that his testimony with respect to that avenue would apply to all of the streets laid down on said maps of the village of Mt. Eden. One of the property owners testified that Fifth, Sixth,