Kings County Fire Ins. Co. v. . Stevens , 101 N.Y. 411 ( 1886 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Whether the turnpike company took a fee or an easement, and so, whether the absolute ownership remained in Nostrand as reversioner, or passed to the city of Brooklyn by the conveyance of the company, need not be considered; for the plaintiff holds a deed both from Nostrand and the city, and took the fee by one route or the other. Of course this statement implies that the city could, with the aid of the legislature, close the street without specific compensation to the defendant, and did do so effectually, as against her, so far as the locus in quo is concerned; and also that the street being closed, and the land freed from any special trust, the city, if it took the fee, became the owner as if a private person and discharged from any public use, and so could sell and convey it without legislative aid. That the last proposition is correct seems to be clearly intimated in Brooklyn Park Com. v. Armstrong (45 N.Y. 234,243), where it is said that, if the city took the fee of land free from a trust, it could convey when and as it chose, but could only be permitted so to do when a trust existed, by the sanction of the legislature. Except when restrained by their charters or the statute, all corporations have the absolute jusdisponendi (2 Kent's Comm. 281); and where no trust is imposed upon the property which a municipal corporation holds in fee, it has an inherent right to sell and convey, and needs no legislative aid. (Dill. on Mun. Corp., § 445; People v. Cityof Albany, 4 Hun, 675, 679; Aiken v. West. R.R. Co., 20 N.Y. 370. ) The question of title in this case, therefore, ends in one inquiry whether the legislature could and did authorize the closing of the street effectually, as against the plaintiff, without making compensation. That question is settled byWheeler v. Clark (58 N.Y. 267). The effort on the part of the respondent is to distinguish that case by insisting upon certain limitations of the general power which were not then in question, but are made applicable by the facts before us. It is claimed that the doctrine of Story v. N.Y. Elevated R.R. Co. (90 N.Y. 122) preserved to this defendant as an abutting owner, a property in the street of which she could not be deprived without compensation, and although she held no covenant from the city, yet her land having been assessed for the cost of the street when purchased of the turnpike company, her property right is equally clear and certain. We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff's premises and not of hers, and does not take from her light or air or convenience of access. No right appurtenant to her lot as abutting on the street has been infringed. But it is further said that the conveyance and map of Sandford, from whom she derived title, dedicated the street to open and permanent public use. But he could not dedicate what he did not own. He bought of Nostrand who bounded him by the south line of the street, and neither by act, map or covenant became responsible for the continuance of the street, or forfeited his own right of possible reversion in fee. It is of no consequence what the defendant's right might be as against Sandford or those claiming under him, for it is a right prior and superior to his which the plaintiff owns and is seeking to enforce. It is claimed, however, in avoidance of this difficulty that Nostrand himself, while owner of the fee in the road, conveyed the adjoining property to Sandford, bounding his grant by the south line of the road, and that such reference to it as an open highway estopped him from any act tending to close it and bound him as owner of the fee to keep it open. But that contention is also answered in Wheeler v. Clark (supra), where it was held that much stronger language merely recognized the public right and bound no one for its continuance. The same doctrine was affirmed in Jackson v. Hathaway (15 Johns. 447). The deed conveyed no private easement, but merely recognized an existing public one, which has been lost. It is claimed also that another limitation upon the right of the city, with the sanction of the legislature, to close the street, protects the defendant, and is a prohibition against such complete environment as prevents access to the premises without a trespass. But the proof shows no such state of facts. A means of access remains. The way is open from defendant's premises to Sandford street; a way twelve feet wide; while the one here in question is but four feet in width. The rule preserves access, but does not give two modes of access and a double right of way. The city might choose which to leave, and when it conveyed to plaintiff the fee of the end toward Nostrand avenue, it made its choice to close that part of the street, leaving open the access from Sandford street. Until that is obstructed the defendant is not surrounded by private rights barring access to her property. It is again insisted that the act of the legislature was insufficient to warrant the closing of this street, because the act of 1835 only authorized the commissioners to close roads not approved by the city, and this road, bought of the turnpike company, was approved by the city. But the act of 1839, passed after the commissioners closed this road, validated and confirmed all their acts.

We discover no reason, therefore, for doubting the validity of the action which closed this road at the point in question and toward Nostrand avenue, or for denying plaintiff's title to the land. An assertion of title in the defendant, by prescription, resulting from an adverse user for twenty years or more, appears in the opinion of the General Term. There was no finding of fact by the trial court establishing such adverse user, nor any finding of law that defendant had a right of way over the disputed premises by prescription; nor does the evidence warrant such conclusion. The defendant has been in the occupation of her lot, and her witness, Samuels, of his, only about eleven or twelve years. What their predecessors did or claimed does not appear. It is shown that the present owners filled in and improved the roadway, but before their purchase, the proof is, that it was a hollow occasioned by the higher grade and curbing of Nostrand avenue and filled with water. It is also apparent that structures were built upon the old roadway, without resistance from anybody, destroying it utterly, as a street, at its junction with that avenue, and narrowing the possible way to the four feet now in dispute. There is a causal statement of the witness Shiel, who had lived for thirty years on another block fronting the Wallabout road and between Sandford and Walworth streets, that the property-owners on the road had no other way to go in or out "and have used it that way ever since." His statement is not shown to refer to the Nostrand avenue end, and could not have referred to that, for he distinctly says, that after the avenues were built "the surface water came down and filled that place up until these ladies and other folks built between Sandford and Nostrand." We are of opinion that no sufficient evidence was given to warrant a conclusion of title by prescription.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.