Opinion
February 21, 1919.
Edwin H. Updike [ William J. Millard with him on the brief], for the appellants.
L. Howell LaMotte [ William P. Burr, Corporation Counsel, and Joel J. Squier with him on the brief], for the respondent.
Two questions come up on these appeals. What is a dedication of a street to the public? In the absence of such dedication, how much do private rights of way granted to adjoining lot owners diminish the fee value of the street bed?
As to dedication, this case is quite different from that presented in Matter of City of New York [ Decatur Street] ( 196 N.Y. 286), where for nineteen years before the proceedings the street had been opened and publicly traveled, water mains laid, with a row of shade trees on either side, and a path between the trees and the side fences, with other marks of dedication. Here the acts relied on to import such dedication are the filing of a map corresponding to the borough surveys; and in case of the Queensboro Co. to issue a later development map following the official borough map. In both cases, such maps, and the descriptive material given out, were merely to acquaint purchasers with the public improvements then being projected, or actually determined upon. On such facts, neither appellant can be regarded as a dedicator of its lands to the public. It cannot be said that there had been any acceptance of Roosevelt avenue by the city. Yet to make complete such a change of interest there must be both a dedication and an acceptance. ( Matter of Hunter, 163 N.Y. 548.) Even an implied acceptance requires a long user, as VANN, J., says, "for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment." ( City of Cohoes v. D. H.C. Co., 134 N.Y. 397, 402.) In Flack v. Village of Green Island ( 122 N.Y. 107) there had been twenty years' public user. Here the damage claimants described the developed property according to the borough system of streets. The borough final map had been filed a year before the Queensboro Investing Company filed its own map. Sales so made might give such a buyer a private easement ( Matter of City of New York [ Sedgwick Ave.], 162 App. Div. 236; Reis v. City of New York, 188 N.Y. 58, 70; Matter of One Hundred Sixteenth St., 1 App. Div. 437; Matter of City of New York [ Sixty-fourth St.], 183 id. 708), and do not import a public dedication.
The contention that land in this street was wholly dedicated to public use by consenting to an elevated road, seems unsustained. Such consent grants a right of support by pillars or columns, with an easement for stairways. "The road acquired a hole in the air; the landowner held his land less that hole." ( Matter of City of New York [ Third Avenue], 145 App. Div. 244.)
The lots of the Queensboro Co., subjected to easements of access, have received awards apparently based on a scale of fifty cents per running foot.
In some former condemnations, lots burdened by easements of access were the subjects of such an arbitrary scale of values. ( Matter of City of New York [ Avenue D], 200 N.Y. 536, 538.) However, only strictly nominal damages are now given to the owner of the bed of a street, after his conveyance of the abutting lots. ( Matter of Schneider, 136 App. Div. 444; 199 N.Y. 581; Matter of City of New York [ Carroll Street], 137 App. Div. 39; Matter of Opening Hamilton Street, 144 id. 702.)
Such easement of access applies merely in the block wherein are the lots sold. In other parts of the projected street the owner of the street bed may be also the owner of the abutting lots. With ownership thus united, the title to the street bed has a substantial value. ( Matter of City of New York [ Sedgwick Ave.], 213 N.Y. 438, 446.) Such were the Queensboro Co. damage parcels 182a, 183, 184 and 192, for which have been made substantial awards.
Regarding the Terminal Co. parcel 114, the commissioners erred in regarding it as unburdened by easements of access, since the sale contracts, although not consummated by deed, in effect had subjected the parcel to such an easement in favor of the abutting purchasers. ( Matter of City of New York [ Edgewater Road], 138 App. Div. 203; affd., 199 N.Y. 560.)
Hence the order of the Special Term should be modified. Instead of directing nominal awards as to the whole fifteen parcels, the awards as to damage parcels 182a, 183, 184 and 192 should be confirmed. The others, being two for the Terminal Co., and nine to the Queensboro Co., should be the subject of a reduction to nominal awards of six cents, and as thus modified the order of the Special Term should be affirmed, but without costs.
JENKS, P.J., MILLS, RICH, PUTNAM and JAYCOX, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs. Order to be settled before Mr. Justice PUTNAM.