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abutted. The commissioners of estimate and assessment made a report awarding various sums of money to the owners of property abutting on such closed and discontinued streets, and from the order confirming their report the city of New York appeals.

This application was made under the provisions of chapter 1006, p. 2037, of the Laws of 1895. That act became a law on the 12th of June of that year, and it provided generally that, upon the filing of a map upon which existing streets and avenues were not shown as continuing to be permanent streets of the city, such streets and avenues not shown upon the map shall

"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 final map of the Twenty-Third and Twenty-Fourth wards covering the territory in this locality was adopted by the board of street opening and improvement on June 17, 1895, and filed as required by law on October 31, 1895, and November 2, 1895, and confirmed by chapter 712, p. 859, Laws of 1896. Upon this map Walton avenue was laid out as an avenue upon the permanent plan of the city of New York, but certain other streets and avenues which were then open and existing streets and avenues were not laid out upon the map, and thereby by force of the statute ceased to be or remain for any purpose whatever a street or avenue of the said city of New York. This proceeding was instituted for the purpose of acquiring property to open Walton avenue in March, 1897, and on the 18th of March, 1897, an order was entered appointing commissioners of estimate and assessment, and such proceeding is still pending. Subsequently the owners. of property abutting on the various streets and avenues closed and discontinued by the filing of the map of the city of New York presented petitions to the court asking to have the damages to their property caused by the closing and discontinuance of the said streets ascertained by the commissioners. An order was thereupon entered directing. the commissioners of estimate and assessment heretofore appointed in this proceeding to ascertain the damage, if any should justly be made and legally awarded to the petitioners for the loss and damage, if any, sustained by certain premises described by reason of the closing, discontinuance, or abandonment of the streets or avenues which had been so closed.

The question is again presented as to the construction to be given to the provisions of chapter 1006 of the Laws of 1895. It must be considered, I think, as now definitely determined, that by that act not only were these streets and avenues not retained upon the permanent plan of the city of New York and closed as public streets and avenues, but also as private ways or roads, and that after the streets and avenues retained upon the map or plan of the city were opened the owners of the fee of the discontinued streets were authorized to inclose the same free from any easement, public or private, and that the damages caused to any owner of property abutting on any such closed or discontinued street could be assessed or determined by com

missioners appointed as provided for by the act and paid by the city of New York (Matter of Vanderbilt Ave., 95 App. Div. 533, 88 N. Y. Supp. 769, 119 App. Div. 882, 104 N. Y. Supp. 1133, affirmed 189 N. Y. 551, 82 N. E. 1133), and that this act is constitutional (Matter of the Mayor, 157 N. Y. 412, 52 N. E. 1126). It is, however, well settled that the owner of property abutting upon a public street is not entitled, in the absence of some legislative authority, to damages sustained in consequence of the closing of a street or highway, and, to entitle the owners of property abutting upon the closed or discontinued street to compel the city of New York to pay the damage sustained by the discontinuance of closing of either the public or private easements in the streets, so closed and discontinued, they must bring themselves within the provisions of the law providing for the assessment and payment of such damage; and therefore, to entitle these petitioners to compensation, they must be entitled to it under the provisions of this act. It seems to me, therefore, that the only question presented is whether, under the provisions of the act of 1895, the various petitioners who have received awards for the damages sustained by the property have brought themselves within the provisions of this act.

The brief filed on behalf of the city asked to have determined the question as to when these streets ceased to be or remain for any purpose whatever a street or avenue. Section 2 of the act provides 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, etc., 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, etc. * * 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 plan or plans 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."

This provision seems to me to be clear. So far as a street or avenue is open and in actual use, it continues to be such a street or avenue even after the making and filing of the plan, until a street, avenue, or road bounding the square or plot within which the said road was located shall be opened; but when a street bounding such square or plot shall be opened, the streets or avenues within such square or plot shall then cease to be for any purpose whatever a street or avenue. We have held in Johnson v. Cox, 42 Misc. Rep. 301, 86 N. Y. Supp. 601, affirmed 124 App. Div. 924, 108 N. Y. Supp. 1136, that the opening of the road here provided for meant the actual physical opening of the street so that it could be made available for use. But when a

physically opened, then it is that the portions of the streets not shown upon the permanent plan cease to be streets or avenues for any purpose. It is not expressly provided in the statute that the street or avenue actually opened should afford access to the land abutting on the street that is closed, but I think that that can fairly be inferred to have been the intention of the Legislature, the object being to afford to the owners of property abutting on the discontinued street such means of access to their property as the permanent streets would afford before the closed and discontinued streets should be actually closed for public use. But the moment a street becomes an actually discontinued street under this provision of the statute, then the damage caused to the abutting property by the discontinuance of the street at once accrues, and it is the damage sustained at the time the street becomes an actually closed street to which the abutting owner is entitled. Matter of the Mayor, 166 N. Y. 495, 60 N. E. 180.

As shown upon the permanent plan of the city, there was a block or plot of ground bounded on the west by Townsend avenue, on the east by Walton avenue, on the south by 172d street, and on the north by Belmont street. Across this plot of ground diagonally there ran certain old streets which were not shown upon the map, and which were discontinued, known as "Sixth Avenue," "Seventh Avenue," and "Walnut Street." 28 App. Div. 143, 52 N. Y. Supp. 588; 157 N. Y. 409, 52 N. E. 1126. For the closing of these three streets damages have been awarded, some of which are objected to by the city. The owners of certain property within the bed of Townsend avenue as laid out on this map have been awarded damages caused by the closing of the streets not laid out on the map which intersected this block. In this, I think, the commissioners were wrong, for at most the owners of lots included in Townsend avenue, which was laid out on the map, were entitled to merely nominal damages. Townsend avenue had been laid out as a public street. So much of the bed of the discontinued street as was included within the boundaries of Townsend avenue, the continued or new street, remained a public street. Before it could be appropriated for that purpose, it would be necessary for the city to acquire the title of the property in the street. But the discontinuance of the discontinued street would certainly cause no damage to that property. Assuming that in the block bounded by Townsend avenue, Jerome avenue, 172d street, and Belmont street the discontinued streets were closed upon the filing of the map because of the fact that Jerome avenue was an open existing street at that time, none of the other roads through the block to the south were closed by the filing of the map or until a street was opened which bounded upon that block, and, when the city acquired title to the bed of Townsend avenue and appropriated the property of these petitioners in the bed of that avenue, whatever title or interest the owners of that property then had, which would include any right of damages against the city of New York, was acquired by that proceeding. In awarding damages for that property, if the commissioners held that the bed of the discontinued streets within Jerome avenue belonged to the owners of the fee without being subject to an easement, then they would give to such own

ers the full value of the land discharged from the easement. If they held, however, that the owners of the abutting land on the discontinued streets still had an easement, then the award for the abutting land would be enhanced by the easement appertaining to it in the bed of the discontinued street. The city proved or offered to prove before the commissioners the fact that the land constituting Townsend avenue had been acquired by the city prior to the commencement of the proceeding to assess these damages, and upon that proof, whatever may be the actual situation of these discontinued streets, no substantial damages for the discontinuance of the street could be awarded to the owners of property in the bed of Townsend avenue, the title to which had been acquired by the city of New York.

The next point taken by the city which it is necessary to discuss is as to Punett street. I think it is entirely immaterial whether Punett street was ever dedicated as a public street. It had been actually used as a street, and persons who had bought property abutting on the street had an easement, which was discontinued by the filing of the map. It had been an actual, open, and existing street, that was under the act of 1895 closed and discontinued as a street for all purposes, and the owners of abutting property were entitled to compensation for the damages sustained thereby. Whether it was a public or private road, the owners of abutting property were entitled to be paid by the city of New York the damages that they sustained because of its discontinuance as such a road. The act so declares, and the Court of Appeals has held that the act is constitutional. The same principle would apply to Walton or Sheridan avenues and Eighth avenue.

I think it also clear that a claim must be filed within six years after the street is actually closed and discontinued, and for all claims not filed within that time the owner is barred. It would appear, however, that an actual bona fide claim which merely by mistake contained a wrong description of the property could be amended and such mistake disregarded.

The city also complains as to an award having been made to a judgment creditor of an owner of a lot who would have been entitled to damages. Before these proceedings were commenced the lien of the judgment had expired. The judgment creditor had acquired no lien upon the award, nor any assignment of the right of his debtor to the award. It would appear that a receiver in supplementary proceedings had already been appointed in whom was vested the right to receive this award, and certainly the judgment creditor, who had no other title to the award except the mere fact of having a judgment, where the lien upon the property had expired, was not entitled to the award. As the judgment debtor, the owner of the property, has filed no claim for the award, and the judgment creditor has no lien upon it, that award should have been disallowed.

This seems to dispose of all the points raised by the city.

I concur with LAUGHLIN, J., except as herein indicated, but I think that the case should be sent back to the commissioners to amend their report in accordance with the views expressed.

In re BOARD OF WATER COM'RS OF VILLAGE OF WHITE PLAINS. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. INTEREST (§ 1*)-—WHEN RECOVERABLE.

Where interest is not provided for by statute or by contract, express or implied, the right of a party thereto must arise from a default of the adverse party.

[Ed. Note.

For other cases, see Interest, Dec. Dig. § 1.*]

2. EMINENT DOMAIN (§ 247*)-COMPENSATION-INTEREST.

Under Code Civ. Proc. § 3371, authorizing the court on the confirmation of the report of commissioners to order compensation to be made to the owner, and providing that the deposit of money to the credit of the owner shall be deemed payment, etc., one seeking to condemn property, who offers to pay the award confirmed by the court, and who, on the owner refusing to accept it, deposits it with the county treasurer to the credit of the owner, is not chargeable with interest on the award as damages for a default.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 638-643; Dec. Dig. § 247.*]

3. EMINENT DOMAIN (§ 251*)-PROCEEDINGS-RIGHT OF APPEAL.

The right of appeal in condemnation proceedings is not inherent, and the Legislature may confer the right, subject to conditions.

[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 251.*]

4. EMINENT DOMAIN (§ 247*)-COMPENSATION-INTEREST.

Code Civ. Proc. §§ 3375, 3377, providing that condemnation proceedings shall not be stayed on an appeal from the award, except by order of the court, and the appeal shall not affect the petitioner's possession of the property taken, and providing that the increase in the compensation awarded on appeal shall be a lien on the land, etc., contemplate that the owner shall accept the compensation as originally determined, and that, though he does not accept it, it is regarded as paid to him in law, if deposited with the county treasurer, as authorized by section 3371, and the owner. appealing from the order confirming the award of the commissioners, is not entitled to interest, where the petitioner deposited the award with the county treasurer, but any earnings of the money while in the hands of the county treasurer belong to the owner.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 641, 642; Dec. Dig. § 247.*]

Appeal from Special Term, Westchester County.

In the matter of the application and petition of the Board of Water Commissioners of the Village of White Plains to acquire the property of a waterworks company. From an order confirming an award of damages, petitioner appeals. Modified and affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

W. N. Dykman, for appellant.

Louis Marshall, for respondent Westchester County Waterworks Co. Charles Haldane (David McClure, on the brief), for respondent Farmers' Loan & Trust Co.

JENKS, J. This appeal is taken by the plaintiff and petitioner from an order of the Special Term to raise the questions of interest upon an award in proceedings by the village of White Plains to con

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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