In re Proceedings for the Improvement of Brooklyn Heights , 1867 N.Y. App. Div. LEXIS 56 ( 1867 )

By the Court, Lott, J.

Assuming that it would have been competent and lawful for the city of Brooklyn to have taken the lands in question for a public street or highway, on the payment of a nominal sum therefor, upon the ground that the original proprietors had dedicated the same to that purpose, it does not follow that they can be appropriated and opened, and that the title thereto can become vested in the city “ as public places,” under the act above referred to, without making full compensation for the same. Those proprietors had the right to make such a disposition of their lands as their interests or wishes dictated, and they will be bound to that extent, and no further; and when they declared that.they were willing to dedicate the same for the purpose of a street, whenever the public authorities would accept the dedication, the property nevertheless continued subject to their control and absolute enjoyment until such acceptance was made. It is useless to speculate whether the effect or result of appropriating the lands for the purpose of a “ public place,” in respect to its future enjoyment by the owner, would be the same as if opened for a street, or whether such a use would or would not be productive of greater damages to him than the other; it is sufficient to say that-he has not consented to such an appropriation thereof.

The question, then, to be considered is what measure of compensation is just and proper to be allowed to the owners of the lands taken for the improvement authorized by the said act. It is established by the proofs introduced before the commissioners that the principal part, if not all, of the lands had been dedicated by parties under whom the appellants claim title, for the purposes of a street. Such dedication has, however, never been accepted by the public authorities ; on the contrary, they have treated the property as private and liable to taxation. The use of it, as stated in some of the affidavits, does not prove an acceptance. It is, therefore, not subject to present existing servitude as a street or highway. It may be that if the act under which' the proceeding was taken had not been passed, the city of Brooklyn would have accepted the dedication thereof at some future time, (although from the construction of the ground and the apparent impracticability of using it as a street, it is improbable,) and it would be proper for the commissioners, in determining the value of the property, to take the fact of such dedication and the probability of its future acceptance into consideration, and if, in view of all the facts and circumstances, it was thereby depreciated, the amount of the depreciation might be properly deducted from what would otherwise have been the fair, full value thereof, including, in such valuation, the buildings and improvements thereon. The rule which prohibits an allowance for buildings erected on land laid down, as the site of streets, on.the village map of Brooklyn, as declared in the Matter of Furman street, (17 Wend. 649,) does not apply to the proceeding. That is only applicable when the land is taken for a street; and until that time arrived, as was stated by Judge Bronson in his opinion in that case, it remained the property of the proprietor, “ with the undoubted right to use it in any way that his interest or pleasure might suggest, with the single admonition, that if he made any erections on the site of the street he should not charge the expense to his neighbor, when it was opened.”

Upon the application of the above principles to this proceeding, it is evident that the commissioners have erred in allowing a nominal compensation only to the owners of the property taken, and the order, at the special term, confirming their report must be reversed, with $ 10 costs on each appeal, to the appellants. An order must be entered to that effect, and denying the motion for confirmation, and referring it back to the same commissioners, for revision and correction, in accordance with the above principles, with liberty to correct the report, in any other particular, if they shall deem that course either necessary or proper.

[Kings General Term, February 11, 1867.

The costs of the appellants, $ 10 on each appeal, should be allowed to them, under the circumstances.

Lott, J. F. Barnard and Gilbert, Justices.]