Matter of City of New York

Werner, J.

The majority of the commissioners of estimate, and the learned justice who confirmed their report, proceeded upon the theory, very tersely expressed at Special Term, that the act authorizing the bridge approach did not provide for the taking of land in trust for the purpose of a public street or avenue, and, therefore, the city did not take any of the land under an implied trust to use it for street purposes. The award of both consequential and actual damage was, of course, the logical corollary to that interpretation of the statute. The learned Appellate Division took a broader view of the whole matter and held that the statute should be so construed as to effectuate the evident legislative intent, which was that the city should only take an absolute fee in such lands as should be necessary for the purpose of providing structural approaches to the bridge; and that in the other lands condemned in the same proceeding, for the widening of streets designed to make the bridge with its structural approaches more accessible, the city acquired a fee burdened with a trust to keep and use the land for street purposes. We agree with the Appellate Division. The statute under which the proceedings herein were instituted expressly declares that “ the provisions of law relating to the taking of private property, for public streets or places in the said city, are hereby made applicable as far as may be necessary to the acquiring of the said land as aforesaid.” While it is true that the statute as .well as the petition and other papers in the proceedings refer to the “ bridge and approaches,” it is clearly shown by the plans and maps on file that the term “approaches” is applied not only to the physical structures immediately'connected with the roadway of the bridge, but to those contiguous and converging streets and avenues through and over which the public are to gain access to the bridge. This use of the term “ approaches,” as applied to the physical conditions of the locus in quo, is no less accurate than the nar rower definition contended for by the appellants wonld be, as applied to a mere taking of lands for bridge approaches without any widening or changing of adjacent streets. In the supposed case the lands taken for the approaches would be a part of the bridge. In the case at bar, some of the lands described as “ approaches ” were taken for street purposes and are not a part of the bridge. The appellants contend, however, that, as the statute authorizes no taking of lands except by “ title in fee * * * for the purpose of the construction of the said bridge and approaches,” the mere assimilation, by the statute, of the practice in the proceeding, to the practice which prevails in condemnation of lands for public streets, does not authorize the city to take any other title than that provided for by the statute; that “ title in fee ” meahs title in fee simple absolute; and that the city can take nothing less, although it expressly disclaims any right or intention to take more than a fee burdened with a trust in that part of the lands intended to be taken for street purposes. Many subtle refinements can, of course, be injected into a discussion like this over the precise meaning of technical terms. On the one hand, it can be argued that a fee unqualified by adjectives means the largest estate which the use of the unlimited term implies. On the other hand, it can be argued with equal force that, under our statutory definitions of estates in “fee simple ” and “ fee simple absolute,” a “ title in fee ” may be an estate that is defeasible or conditional and, therefore, not absolute. The very exhaustive brief of the learned counsel for the appellants illustrates how much learning may be brought to bear upon so simple a subject as the nomenclature of estates in land; but it also suggests the practical importance of fixing our attention upon the real question before us. What is the fair interpretation of the statute and what is the effect of the proceeding instituted and completed under it? The same statute which authorizes the construction of this bridge and its approaches, and the taking of lands for that purpose, provides that, so far as may be necessary, the proceeding shall be con trolled by the laws applicable to condemnation, of lands for streets, etc. By the plans and maps made and filed by the engineering department of the city, all the parties in interest in this proceeding were informed that lands were to be acquired for two purposes: 1. For the bridge and its actual physical approaches.' 2. For the widening and changing of street lines of adjacent streets so as to promote and facilitate access to the bridge. In these conditions it was good economy and, under this statute, correct practice, to institute a single proceeding for both purposes. But the appellants argue that because the streets widened, and changed have been called approaches, and because the statute and the papers in this proceeding describe the estate taken by the city as "a title in fee, therefore, the city cannot take less than a-fee simple absolute title in all of the lands condemned. This argument is more plausible than sound. The streets widened and changed were properly designated as approaches to the bridge, although they were so in a different sense than the lands which were actually necessary as a part of the bridge. The term “ title in fee,” as used in the statute and in these proceedings, must be construed in the light of the purposes for which the statute was enacted.- The lands taken for- the bridge and its structural approaches were-necessarily taken in fee simple absolute, because their taking was accompanied by a physical entry and appropriation on the part of the city to the exclusion of the public and adjoining owners. Not so, however, in the case of lands taken for widening of streets and changing of street lines, because this was simply a taking of “ title in fee ” for the purposes to which such lands were to be devoted, viz., for streets in which the adjoining owners and the general public would have the easements pertaining to public streets. That this dual use of the term “ title in fee ” is not without authority is shown by the fact that by section 970 of its charter the city of New York is authorized to acquire title for the use of the public to all or any lands required for streets, parks, approaches to bridges and tunnels, * * * and by section 990 of the charter it is provided at what time the city shall become “seized in fee” of lands taken for streets or parks. The authority given in section 970 is to acquire lands for the use of the public, although it specifies-purposes for which the city must take an absolute title, as well as other purposes for which it can only acquire a title affected by a trust. Section 990 describes the title of the city in lands taken for streets and parks as a “ title in fee,” although the real title in the one case is quite different from that in the other. If, as a part of the improvement to be made by the building of the bridge, the plans adopted by the city had contemplated the widening of 145th and 149th streets from either extremity to the bridge, it would hardly be claimed that all the lands taken for that purpose would come within the narrow definition of “ approaches ” or would have to be held in fee simple absolute, because the statute authorized the city to acquire by “ title in fee ” such lands as might be deemed necessary for “ approaches” to the bridge. Yet that is precisely what the argument of the appellants leads to. The broader and, as it seems to us, the better view is that the statute is one under which a single proceeding could be instituted for the double purpose of building a bridge with its structural approaches and at the same time widening and straightening the streets leading thereto. So far as the lands taken were necessary for the first purpose, they were, of course, to be held by the city in fee simple absolute, because its occupation and use thereof would be inconsistent with every other form of legal title, but as to the lands taken for street purposes the title in fee is coupled with the trust that they shall not be used for any other purpose. This view of the statute and the proceeding is consonant, not only with the general duty which rests upon municipalities not to take more lands for specific public purposes than is necessary, but with the attitude of the city in the case at bar. Its unequivocal declaration that it has not intended to take, and does not want, title in fee simple absolute to the lands taken for street purposes herein, supplemented by the decision of this court that the city has no such title, will leave the appellants no ground for apprehension as to the nature and extent of their easements in the streets which bound their lands.

We, therefore, answer the certified question in the negative and affirm the order of the Appellate Division, with costs.

Parker, Ch. J., Gray, O’Brien, Haight, Martin and Vann, JJ., concur.

Order affirmed.