Matter of City of N.Y. (Grand Boulevard)

In this proceeding the city of New York seeks to acquire the fee of lands formerly within the lines of two streets known as Butternut street and Pond Place. The title to the fee was vested, when the proceeding was begun, in the appellants Lowenstein. The courts below have held that the value of the fee was nominal because the land was subject to private easements in favor of abutting owners. It is to those owners, and not to the owners of the fee, that substantial damages have been awarded. The award was made with the approval of the city, which moved the confirmation of the commissioners' report. The appellants Lowenstein insist on this appeal that the court erred in holding that their damages were nominal. The city of New York does not contest the award in favor of the abutting owners unless the award to the appellants Lowenstein is increased, but insists that in such an event the other awards must be reduced.

Butternut street and Pond Place were laid out on a private map made in 1853; and through dedication and acceptance by the public authorities, they became in 1879 duly constituted highways. The fee remained in private ownership. They were omitted, however, from the final map filed November 2, 1895, by the commissioners of street improvements of the 23d and 24th wards. On that map the land which formed the bed of the discontinued streets, lay within a block bounded by Walton avenue, the Concourse, East 163d street, and East 164th street. One of these streets, Walton avenue, was physically opened in October, 1898. It is conceded that from that time Butternut street and Pond Place have ceased to exist as public highways. Later and in 1906 the city of New York determined to acquire the fee for another public improvement. The owners of the land maintain that under chapter 1006 of the Laws of 1895, the effect of the discontinuance of the public streets by omission from the official map was to extinguish the private easements of abutting owners; that the right to compensation for the destruction of the private easements has been lost by limitation; and that the fee of the old streets, being thus relieved of all burdens, should have been held to have a substantial value.

I assume for the purpose of this case that the statute was intended to extinguish all easements, private as well as public, and this without reference to their origin, whether dependent upon mere accidents of contiguity or upon grant express or implied. I think we should leave those questions open to the extent that our answer to them is not controlled by earlier decisions. If this assumption be made, the conclusion, I think, must still be that the abutting owners have not lost their right to compensation for the easements thus appropriated. It is true that the statute says they shall lose it after the lapse of six years from the filing of the map. To that extent, if no further, the statute must be pronounced invalid. It takes the property of the citizen without actual notice, and without such provisions for constructive notice as are essential to the maintenance of due process of law. It does not require that owners be notified of the filing of the map by which their rights are to be extinguished. It does not confine itself to a provision that the filing of the map shall ipso facto work an appropriation of their interest in the land. That in itself would not, we may assume, be invalid if an adequate remedy insuring compensation were provided. The statute, however, goes farther and declares that the mere lapse of six years, following the filing of the map, shall, regardless of notice to the owners, bar their right to compensation. It does not avail them that they have remained in undisturbed possession of their lands and unchallenged enjoyment of appurtenant easements. If they fail to keep track of the maps that define the public highways, their private as well as their public easements may be forfeited without requital. All this is true, if the statute be valid, though neither by actual nor by published notice have they been advised that their rights have been placed in jeopardy. I do not think that such a statute comports with the constitutional guaranty of due process of law. (Peterson v. Martino,210 N.Y. 412, 420; Bryan v. McGurk, 200 N.Y. 332, 336; Joslyn v. Rockwell, 128 N.Y. 334, 339; Blinn v. Nelson,222 U.S. 1; Longyear v. Toolan, 209 U.S. 414; Londoner v. City County of Denver, 210 U.S. 373, 385, 386; Central of GeorgiaRy. Co. v. Wright, 207 U.S. 127; American Land Co. v.Zeiss, 219 U.S. 47, 67; Cooley's Constitutional Limitations [3d ed.], 366.) Before the citizen's right to compensation can be cut off by such a statute of limitation, notice of the event on which the right depends must be brought home to him by the State. He cannot be charged with the duty of hunting out the facts for himself. The State is appropriating his property by proceedingsin invitum, and it cannot shift upon him the burden of ascertaining that the proceedings are in motion. It must give him notice reasonably adapted to bring their pendency to his attention.

If the act of 1895 makes no provision for such notice, the attempted limitation is without effect. Whether the failure of the limitation carries with it as an additional consequence a failure of the appropriation, we need not now decide. It is possible that the limitation of time within which compensation for the private easements must be claimed, is so essential a part of the statutory scheme that if we blot out the limitation, we must blot out the appropriation with it. (Pollock v. Farmers'Loan Trust Co., 158 U.S. 601, 635, 636.) We may doubt whether the legislature would have been willing to sanction an automatic condemnation of private easements through the mere filing of a map without setting some bounds to the flood of claims for real or fancied damages. We are not required to resolve these doubts in order to decide the case at hand. In any view, one or other of two conclusions must follow: either the bed of the old streets is still subject to the easements of abutting owners, or else, if the easements have been extinguished, the abutting owners retain their claim for compensation. Whichever conclusion is to be adopted, the commissioners had the right to find that the value of the fee was nominal. That the easements have been extinguished adds little, if anything, to the value of the fee if the right to compensation has survived, for, under section 6 of the act, the cost of extinguishing them must, to the extent of the resulting benefit, be assessed against the land within the boundaries of the streets. Such a liability would detract proportionately from the market value of the fee. The evidence would sustain a finding that an assessment adequate to compensate abutting owners for the loss of their private easements would, if imposed on the land within the lines of the old streets, make the value of the fee but nominal. If, therefore, it be assumed that the statute was intended to extinguish all easements, private as well as public, there is no error in the awards.

The order should be affirmed, with costs to the city of New York against the appellants Lowenstein, and with costs to the other respondents against the city of New York.

WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE and MILLER, JJ., concur; HOGAN, J., concurs in result.

Order affirmed, etc.