Opinion
Argued February 18, 1873
Decided September 23, 1873
A.J. Vanderpoel for the appellants. Jno. E. Parsons for the respondent.
The act of 1813 "to reduce several laws relating to the city of New York into one act" authorizes the mayor, aldermen and commonalty of the city to acquire by voluntary cession from the owners, or by compulsory proceedings, the fee of lands required for laying out, opening or widening streets in the city. The one hundred and seventy-eighth section declares that it shall be lawful for the mayor, aldermen and commonalty to agree with the owners, lessees, parties or persons interested, for and about the cession of lands required for that purpose, and the compensation and recompense to be made therefor. By the same section the proceedings to be taken for the condemnation of lands required for street purposes and for ascertaining the compensation to be awarded for the property taken are prescribed. Commissioners of estimate and assessment are to be appointed by the court upon the application of the city, who are to make a just and equitable assessment of the damages to the owners or persons interested in the lands taken in consequence of the improvement, and the taking of the lands therefor. When the loss or damage by reason of taking the lands for the street exceeds, in the opinion of the commissioners, the value of the benefit to the owner of the improvement, they are required to estimate and report the excess of the loss or damage over the benefit, which sum the statute declares shall be the compensation and recompense to be made to the owner for his loss and damage "in consequence of the said improvement, and relinquishing the said lands, tenements, hereditaments and premises so required of him for that purpose." Upon the coming in of the report of the commissioners the court, after hearing any matter which may be alleged against the same, may confirm it or refer it for revisal or correction to the same or new commissioners; and the report, when confirmed, is made final and conclusive upon the city and upon the owners and all persons interested in the lands taken; and the statute declares that on confirmation of the report "the said mayor, aldermen and commonalty of the city of New York shall become and be seized in fee of all the lands, tenements, hereditaments and premises in the said report mentioned" required for the street, and authorizes the city to take immediate possession thereof. The statute directs that in making the assessment for the opening of streets laid out and mapped under the act of April 3, 1807, the commissioners shall not allow compensation for buildings erected on the streets laid out under that act after the filing of the maps showing the location of the proposed streets; but it authorizes the corporation to permit such buildings to remain unremoved for such time as they shall think proper. It expressly declares that compensation shall be made for buildings erected on such streets before the filing of the maps; and authorizes the commissioners, when it becomes necessary, in laying out, enlarging or improving streets in any part of the city not laid out into streets under the act of 1807, to remove any building, to assess, if they deem it equitable to do so, any part not exceeding one-third of the value thereof upon the city.
The lands required for the extension of Church street were in a part of the city not laid out into streets under the act of 1807, and a brick building had been erected and stood upon the land of the defendant, taken for the extension, at the time the proceedings were commenced. The building was part and parcel of the freehold. Structures affixed to the land by the owner are in contemplation of law a part of it, and pass by a conveyance of the land, if there is nothing to indicate a contrary intention, and are subject to the rules and incidents of real property. It is plain that the authority conferred by the act of 1813 upon the corporation to take lands for streets (not laid out under the act of 1807) by coercive proceedings against the owner, contemplates the acquisition by the city of the entire interest and title of the owner in the lands taken; and that compensation shall be made as well for buildings erected upon the land as for the soil. Whatever is land within the general and legal meaning of the term, is to be estimated in ascertaining the compensation. If the legislature could have authorized the taking of the soil only, leaving the buildings to the owner, with the right to remove them upon making compensation for the value of the land, exclusive of the buildings, or of the materials composing them, it has not exercised this power by the statute of 1813. It was the duty of the commissioners of estimate and assessment, under the statute, to estimate and report the value of the plaintiff's land, taken for the street, including the building thereon. They had no right, without her consent, to restrict the assessment to the value of the land, exclusive of the building, leaving to her the right to remove it. The statute did not authorize such a severance of her interest, nor did it design to compel the owner, whose lands might be required for public use, to retain, as chattels, the fixtures on the premises, and exempt the city from the obligation to take and pay for them as part of the land. The report of the commissioners of estimate and assessment, after reciting that the lot of the plaintiff was required for the extension of Church street, declares that they had estimated the loss and damage of the plaintiff in consequence of the extension, and of the owner "relinquishing the land, with the improvements thereon, for that purpose, and removing the same therefrom, and of the taking of said land for the purposes aforesaid, to amount to the sum of twenty-nine thousand and forty dollars; and that any buildings now situated on said land would be required to be removed therefrom." The construction of the report is not free from difficulty, but, upon careful consideration of the language used, we are of opinion that the intention was to award to the defendant compensation for the land taken, considered in connection with the right reserved to the owner to remove the building from the premises. That the commissioners intended, by the report, to reserve to the plaintiff the ownership of the building, and the right to remove it, is the only view consistent with the fact that any reference was made to it. If the intention was to vest in the city the title to the building, the reference to its removal contained in the report was unnecessary and inappropriate. Nor does the statement in the report, that the damages are estimated for the plaintiff's relinquishing the land and the improvements, conflict with this view. The value of the soil, and of the materials of the building detached therefrom, would not or might not represent the whole value of the property. Buildings erected upon land are generally of more value than the materials of which they are constructed. It is in this view we think that the language of the report is to be construed. The damages were estimated for relinquishing the land and also the improvements as such in their relation to and connection with the land, but reserving to the owner the right to remove the building. The report was confirmed by the court without objection by the plaintiff, and the question arises whether the city is liable to the plaintiff for the subsequent conversion of the materials of the building to its use. If the departure by the commissioners from the rule of assessment prescribed by the statute was a jurisdictional defect in the proceedings, and the plaintiff has not been divested of her title to the land, and is not precluded from asserting it, her right to recover is plain. If the title passed to the city by force of the statute and the proceedings under it, then it would be plainly inequitable to allow the corporation to appropriate the building without making compensation. The rule of the common law, that whatever is annexed to the freehold becomes a part of it, may be controlled and modified by agreement between the owner and the person by whom the annexation is made. The law has engrafted a qualification upon the rule in case of erections made upon the land by a tenant for purposes of trade, and gives him in general a right to remove them during his term. So, also, the owner may reserve from a conveyance of the land the trees or buildings thereon, in which case they will in contemplation of law be regarded as divided and severed from the soil, and will vest as chattels in the grantor, even before actual severance. (4 Co., 636; Hob. 168; Williams on Exrs., 594; Sanborn v. Hoyt, 24 Me., 118; Kingsley v. Holbrook, 45 N.Y., 313.) And trover will lie for them, at least after actual severance from the freehold. (Addison on Torts, 312; Colegrave v. Dias Santos, 2 B. C., 78; Benson v. Smith, 1 Hill, 176; Russell v. Richards, 11 Me., 371.) It is clear that the city, under the authority given by the act of 1813, to acquire by voluntary agreement with the owner the title to lands required for streets, could have agreed with the plaintiff for a conveyance of her land, reserving to her the building and the right to remove it. Such an arrangement might be beneficial to both parties, and would not interfere with the public use to which the land was to be devoted. The commissioners, in their report, in awarding compensation to the plaintiff, treated the building as severed from the land. The plaintiff could have objected on the coming in of the report to the rule adopted by the commissioners in estimating her damages. She was not bound to take the building. But she acquiesced in the report by not objecting to it. The objection which she might have made was to the rule of assessment. She could, however, waive it and assent to retain the building as a chattel interest. Her assent appears not only by the omission to object on the confirmation of the report, but by the fact that the report was in this respect in conformity with an understanding between the plaintiff and the commissioners. ( Embury v. Connor, 3 N.Y., 511; Baker v. Braman, 6 Hill, 47.) Neither party having objected to the confirmation of the report, it became by the terms of the statute final and conclusive upon them. The city acquired the fee of the land, subject to the right of the plaintiff to the building, and having, as the demurrer admits, converted the materials to its use, we are of opinion that the action can be maintained.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.