Opinion
January 24, 1908.
Ralph E. Prime [ Augustus C. Brown with him on the brief], for the appellant.
Henry R. Barrett, for the respondents.
This is an appeal by Caterson, the landowner in certain condemnation proceedings, from an order of the Special Term confirming the report of the commissioners to ascertain and to appraise the compensation for land taken for public sewer purposes by the trustees of the village of White Plains. Chapter 609 of the Laws of 1887 empowered the trustees to adopt and to establish a permanent system of sewerage and drainage. Section 4 thereof provided: "Whenever it is necessary to construct or extend or discharge said sewers, or to do anything appurtenant thereto, either within or without said village, said board shall have full power, and is hereby authorized to construct and extend the same through any real estate, and title thereto shall be acquired in the same manner as provided in chapter one hundred and forty of the laws of eighteen hundred and fifty and the several acts amendatory thereof." The proceedings were begun by petition filed on February 28, 1890, and commissioners were appointed on March 15, 1890. The lands in question were of a parcel then owned by Findlay, who, however, conveyed the parcel in 1892 to Caterson. The original commissioners died. It does not appear that any steps had been taken in the proceedings until 1905, when an order of the Special Term was made which vacated all previous orders appointing commissioners and appointed the present commissioners, who alone sat, heard and determined the compensation. It appeared on the hearing the said trustees were in possession of the land in question and were using disposal works set up thereon by them for the treatment and the care of the sewage of the village.
The question presented on this appeal is whether Caterson was entitled to have the commissioners, in ascertaining his compensation, take into consideration any improvements made by the trustees upon his land. The record clearly indicates that the commissioners did not consider them. There is evidence that some time in 1890 the trustees caused work to be done on the lands which was thereafter torn down, the grade leveled and reconstruction begun. Indeed, there is evidence that indicates that some of the original work was begun in 1888. And there is evidence that the trustees had thus entered upon the lands under a license from Findlay. Such a license was, however, revocable at the pleasure of the owner, and conferred no rights which could survive his revocation. ( Duryee v. Mayor, 96 N.Y. 477, 478; White v. M.R. Co., 139 id. 19.) Such license was revoked by the conveyance of that owner to Caterson by the deed of 1892. (Washb. Ease. Serv. [4th ed.] 7; Eckerson v. Crippen, 110 N.Y. 585; Cahoon v. Bayaud, 123 id. 298; Eggleston v. N Y Harlem R.R. Co., 35 Barb. 162, cited in Olmsted v. Dennis, 77 N.Y. 378; Wilson v. St. Paul, Minneapolis Manitoba Ry. Co., 41 Minn. 56.) So far as the improvements were made by the trustees within the terms of the license up to the time of the conveyance of the premises, I think that the present owner is not entitled to have them considered, inasmuch as the evidence does not show that such license was ever revoked by the then owner. There was then, as to such improvements, a part performance of an oral agreement, and hence the matter was thus taken out of the Statute of Frauds. (2 Lewis Em. Dom. [2d ed.] 715, and cases cited; Reeves Real Prop. 327, and cases cited.) But a different question arises as to the improvements made by the trustees subsequent to the conveyance to Caterson. The question presented is as to improvements now retained upon the land. Caterson testifies that when he took possession of the property no work had been done on this plot where the disposal works now stand towards the erection of the disposal works that are there now. The trustees entering originally under a license from Findlay were entitled to notice of any revocation made by Findlay and to a reasonable time thereafter to remove any of the structures set up by them under the license. ( Putnam v. State, 132 N.Y. 344; Wilson v. St. Paul, Minneapolis Manitoba Ry. Co., supra; Arrington v. Larrabee, 10 Cush. 512.) I think that upon the revocation worked by the conveyance the trustees would have had a reasonable time thereafter for such removal, but that right is not involved for the question arises as to structures now maintained and worked thereon by the trustees. While I think that as between licensor and licensee the licensee was entitled to notice of any revocation thereof by the licensor, I also think that such rule does not apply to Caterson, a third party, when a revocation was worked by conveyance to him. If notice was prerequisite to such revocation, then the conveyance alone did not work revocation, and notwithstanding the conveyance some legal rights of occupancy and continuance under the license (other than removal) remained in the trustees until notice of the revocation. This doctrine would deny the proposition that conveyance ipso facto was revocation. In Wallis v. Harrison (4 M. W. 538) the license was to make a main way a by way and certain cuts for railway purposes. The point was made that the licensees could not be regarded as trespassers after a conveyance of the land without first giving the licensees notice of the conveyance. The court, per Lord ABINGER, C.B., said: "I never heard it supposed that if a man out of kindness to a neighbor allows him to pass over his land, the transferee of that land is bound to do so likewise. But it is said that the defendant should have had notice of the transfer. That is new law to me. A person is bound to know who is the owner of the land upon which he does that which, prima facie, is a trespass. Even if this were not so, I think the defendants ought, in excuse of their trespass, to have pleaded the fact that they had no notice of the transfer." This question was also raised in Wilson v. St. Paul, Minneapolis Manitoba Ry. Co. ( supra), where the court, per GILFILLAN, Ch. J., held: "It is probably true, in general, that the protection which the license affords the licensee in doing what it permits him to do continues until notice, so that he cannot be liable for acting under it until notice of revocation. This, however, has been held not to be the rule upon a revocation of a grant to a third person. ( Wallis v. Harrison, 4 Mees. W. 538.)" In Bunke v. N.Y. Telephone Co. ( 110 App. Div. 248; affd., 188 N.Y. 600) the court say: "And the conveyance of the premises by the licensor was a revocation thereof of which the licensee must take notice. ( Eckerson v. Crippen, 110 N.Y. 585; Winne v. Ulster Co. Savings Institution, 37 Hun, 349; Eggleston v. N.Y. H.R.R. Co., 35 Barb. 162; Forbes v. Balenseifer, 74 Ill. 183; Estelle v. Peacock, 48 Mich. 469; Hodgkins v. Farrington, 150 Mass. 19.)"
I think that subsequent to the revocation by the conveyance, the trustees with respect to any structures thereafter erected upon this land which they did not seek to remove but to maintain without any license or consent from Caterson must be regarded as trespassers, so that Caterson had the right to invoke the rule of Village of St. Johnsville v. Smith ( 184 N.Y. 341). "The measure of such compensation," says WILLARD BARTLETT, J., for the court, "is neither the cost of the improvements nor their value or the value of their use to the village. The true inquiry is how much do the improvements placed upon the property enhance the value of the appellant's land." Caterson is not barred from his claim by any principle of estoppel. ( Crosdale v. Lanigan, 129 N.Y. 604; Duryee v. Mayor, supra; White v. M.R. Co., 139 N.Y. 19; Eggleston v. N.Y. Harlem R.R. Co., 35 Barb. 162, 172 et seq.; Ewing v. Rhea, 37 Or. 583.)
This proceeding, it is to be noted, was not governed by the present Condemnation Law. For the statute expressly provides that the proceedings shall be under chapter 140 of the Laws of 1850 and the amendments thereof ( ut supra). Section 3384 of the Code of Civil Procedure provides: "This title shall take effect on the first day of May, one thousand eight hundred and ninety, and shall not affect any proceeding previously commenced." This proceeding was begun on February 28, 1890. No lis pendens was authorized under the statutes regulating this proceeding, and any lis pendens if filed was but a nullity. ( Mills v. Bliss, 55 N.Y. 139, 141.)
I advise that the court order a new appraisal (Laws of 1850, chap. 140, § 18) before new commissioners. The question of costs should be reserved until the coming in of the second report.
GAYNOR, RICH and MILLER, JJ., concurred; HOOKER, J., dissented.
Order reversed and new trial ordered before new commissioners. Question of costs reserved until coming in of second report.