In re Acquiring Title to Wallace Avenue

Shearn, J.:

The parcels of land owned by the petitioner originally formed part of a plot owned by the Downing estate in what was the town of Westchester prior to annexation by the city of New York. In April, 1893, this plot was laid out upon a map known as Map No. 1076, filed in the register’s office. On this map was shown a street called Graham street, 50 feet wide, commencing at Morris Park ayenue and running northerly about 340 feet. Graham street was physically laid out in accordance with the map, and the petitioner’s lots, together with all lots facing upon Graham street, were sold with reference to the map, and are contiguous to and front on Graham street. This thoroughfare was subsequently used by vehicles and pedestrians as an approach to the lots fronting thereon and the roadbed was in a fit condition for travel by horses and automobiles for many years and down to the closing of the street by the city. In 1905 the Bronx Gas and Electric Company, a public service corporation having a franchise to install gas mains in the various streets of the town of Westchester, installed a gas main through Graham street, which main has remained in the bed of the street ever since for the purpose of supplying the owners of abutting property with • gas. In 1906 the petitioner’s predecessor in title procured a private sewer to be laid in the street, which was done after the issuance of a permit by the bureau of sewers of the borough of The Bronx. On October 17, 1907, the city of New York filed a map showing this territory as laid out in streets and avenues by the constituted authorities. On this map Graham street was indicated by broken lines, showing that it was not intended to be one of the public streets according to the plan then laid out. Under the provisions of chapter 1006 of the Laws of 1895, upon the filing of this city map, Graham street ceased “ to be or remain, for any purpose whatever, a street, avenue, highway, road, alley, lane or thoroughfare.” (See § 2.) Consequently the petitioner’s lot was marooned and cut off from street access to Morris Park avenue, which was continued as a public street upon the city’s plan. Thereupon the motion was made, eventuating in the order appealed from, for the commissioners of estimate and assessment to take proof and report the compensation which should-justly be made to the petitioner for the loss and damage in and to her lands and easements by reason of the closing and discontinuance of Graham street.

The first question to determine is whether Graham street was a public street, in the sense that it had not only been dedicated and used as such but had been accepted by the city, for in such case the petitioner would clearly be entitled to compensation for the deprivation of her public easement therein and her private easement growing out of the contiguity of her lot and the street. Neither the laying of gas pipes by the public service corporation nor the building of a private sewer with the consent of the city authorities constituted an acceptance of the dedication of this street and it was not a public street in such a sense. This presents the second and real question in the case, namely, whether the closing of this thoroughfare deprived the petitioner of the easements in what was, prior to the filing of the city’s plan, Graham street, which easements were created by private grant, originating in the sale of lots according to a plan showing a street which thereafter came into physical existence but which was never accepted as a street by the city. Whatever doubt may have heretofore existed about the right to recover compensation in these proceedings for all easements extinguished by the city, whether public or private, and, if private, whether growing out of contiguity or originating in private grant, has been definitely determined, as it seems to me, by the decision of the Court of Appeals in Barber v. Woolf (216 N. Y. 7). It would serve no purpose to review this long-standing controversy, for that was done clearly and comprehensively by Chief Judge Bartlett in the Barber case, and in his opinion the cases of Matter of City of New York (Grand Boulevard) (160 App. Div. 80, 83) and Matter of Olinger (Id. 96) were criticized and their reasoning on this point involved rejected, in spite of which they continue to be cited as authorities for the proposition that in such proceedings as these a property owner can claim no damages for the extinguishment of easements originating in private grant unless the street closed was on a public street in the sense that it had either been opened as such or the city had accepted a dedication of it. The learned chief judge stated in the Barber case that the opinion had discussed the matter at some length “ because it is extremely important to property owners, to the municipal authorities and to the legal profession that the scope and effect of proceedings under chapter 1006 of the Laws of 1895 for the extinguishment of easements should no longer remain uncertain and open to question.” He then went on to say: “ We think it was the purpose of the statute to permit the extinguishment of all easements, private as well as public, and this without reference to their origin and whether they depend upon mere contiguity or upon grant express or implied. There is no logical basis for making any distinction between one class of private easements and another. The closing of streets in order to permit the adoption of a uniform plan of municipal improvement being a public purpose and an actual closing being necessary to carry out that purpose it is just as essential that private easements resting in grant shall be extinguished as any others.” It seems incredible that in an opinion intended to clarify and definitely settle this question of extinguishment of easements, the Court of Appeals intended to leave open any such question as is here presented.

In Matter of White Plains Road (N. Y. L. J., July 23, 1914) the corporation counsel claimed on the authority of the Grand Boulevard and Olinger cases that unless the fee of a closed street has vested in the city of New York the presumption is that the owners of the abutting property have easements by grant and that such easements are not extinguished by the closing of a street, each abutting owner still having the right for his own purposes to uninterrupted passage over the same and to unobstructed light and air from the particular strip. Mr. Justice Page, in a very careful opinion, concluded that any such interpretation of the law did violence to the purposes and intent of the statute. Justice Page said, after quoting the statute: “ Language more comprehensive could hardly be used to declare the intent that there should be "a uniform plan for streets, avenues and roads within the city or the district thereof for which the map or plan was filed, and that all streets, roads, highways, lanes, alleys or thoroughfares theretofore in any manner created, existing or contemplated which were not retained on the permanent plan, together with all rights and easements therein, whatever the same, or public or private, should cease and determine. The right is given to the owner of the fee included within the boundaries of ‘ all such streets, avenues, roads, highways, alleys or thoroughfares to inclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used,’ and this without regard to the fact whether the same had been theretofore open and in public use or not. The right to inclose shows there was no intention of allowing private easements to exist therein after the permanent plan was established and streets opened in the same block with the former street. The declared purpose of uniformity in plan would be defeated if the old streets were to be still kept open as private ways. A block ‘ criss-crossed ’ with private easements of access, .light and air would be undesirable for building, and thus a large amount of property would of necessity remain unimproved and the taxable value reduced. It seems to me, therefore, that the city is interested in the extinguishment of these private easements.” Subsequently came the decision in Barber v. Woolf (supra) and in it the fundamental reason assigned was identical with that relied upon by Mr. Justice Page, namely, the interest of the city in the adoption of a uniform plan of municipal improvement, which the closing of all streets, lanes and thoroughfares other than those specifically continued at the instance of the city makes possible.

The important consideration, as it seems to me, is not the character of a street, road or thoroughfare, but whether closing it impairs or extinguishes any private easements therein. The facts that the easements may be in a public street, or in a street never opened or both dedicated and accepted, but used as a street, or in a lane or alley or other thoroughfare, is only important as affecting the amount of damages recoverable. The right to recover depends upon whether any easement has been extinguished, either public or private, and irrespective of its origin. Whether Graham street was a public street or (in the sense that it had never been opened, or both dedicated and accepted) a private street, or was a lane or alley or any other kind of thoroughfare, it is undisputed that it was closed when the city’s map •was filed. How such closing affected the petitioner’s private easement, originating in grant, to have free, open and uninterrupted right of passage along the thoroughfare from petitioner’s house to Morris Park avenue, is apparent when one reads section 18 of chapter 1006 of the Laws of 1895. This provides that as to any street, avenue, lane, alley, highway or road which has been discontinued and closed by the local authorities, if not inclosed or occupied by the owner, “ it shall be lawful for the said local authorities to cause the same to be inclosed or fenced in.” In other words, the city, in order to carry out its plan of uniformity in street development, had the right, on filing this map showing Graham street discontinued, to fence or barricade off from Morris Park avenue this road that had for years afforded the only access to the lots along it. This right of access originated in private grant. It cannot be maintained that the city’s right to barricade the road and prevent travel over it is not inconsistent with and-does not impair the easement of access and passage created by a private grant. Right of access no longer exists, and, whatever the character of the thoroughfare, abutting property owners are entitled to compensation commensurate with their property rights invaded and extinguished.

For these reasons the order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., and Davis, J., concurred; Scott and Laughlin, JJ., dissented.