Kings Co. Fire Ins. Co. v. Stevens

• Decision Date: 02 March 1886
• Citation: 5 N.E. 353,101 N.Y. 411
• Parties: KINGS CO. FIRE INS. CO. v. STEVENS.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 411

5 N.E. 353

KINGS CO. FIRE INS. CO.

v.STEVENS.¹

Court of Appeals of New York.

Filed March 2, 1886.

Appeal from a judgment of the general term of the supreme court of the second department, affirming a judgment for the defendant in an action for an injunction. The plaintiffs owned a plot of ground in Brooklyn upon which they had erected four brick dwellings on Nostrand avenue. The northernmost house and lot covered the southerly half of what was once the Wallabout Bridge road, running into Nostrand avenue. In undertaking to build their garden fence to this lot they were interrupted by the defendant, who owns and occupies a lot in the immediate rear. As fast as plaintiffs built a fence the defendant tore it down. Plaintiffs brought an action, and it was decided (87 N. Y. 287) that plaintiffs' title carried no further than to the side of the old road. To meet this, plaintiffs procured a quitclaim deed to the land in the old road from the executors of Nostrand, the original owner, and also from the city of Brooklyn, by which the road had been used as a street, but never dedicated to public use and closed by aid of the legislature in 1835. They then undertook to erect the fence, when they were again interrupted, and the present action is brought to enjoin defendant from interfering with the fence, and from trespassing upon the property. Defendant received her title from one Sandford, by deed dedicating the street to public use; but Sandford took title from Nostrand, who bounded him by the south line of the street, and gave no covenant as to the street. A way was still left open for her to Sandford street at the other end of the block.

W. C. DeWitt, for appellant.

Jesse Johnson, for respondent.

FINCH, J.

Whether the plank-road company took a fee or an easement, and so whether the absolute ownership remained in Nostrand as reversioner, or passed to the city of Brooklyn by the conveyance of the company, need not be considered; for the plaintiff holds a deed both from Nostrand and the city, and took the fee by one route or the other. Of course, this statement implies that the city could, with the aid of the legislature, close the street without specific compensation to the defendant, and did do so effectually as against her, so far as the locus in quo is concerned; and also that the street being closed, and the land freed from any special trust, the city, if it took the fee, became the owner as if a private person, and discharged from any public use, and so could sell and convey it without legislative aid. That the last proposition is correct, seems to be clearly intimated in Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 243, where it is said that if the city took the fee of land, free from a trust, it could convey when and as it chose, but could only be permitted so to do, when a trust existed, by the sanction of the legislature, except when restrained by their charters or the statute, all corporations have the absolute jus disponendi, (2 Kent, Comm. 281;) and where no trust is impressed upon the property which a municipal corporation holds in fee, it has an inherent right to sell and convey, and needs no legislative aid, (Dill. Mun. Corp. § 445; People v. City of Albany, 4 Hun, 679; Aikin v. West. R. Corp., 20 N. Y. 370.) The question of title in this case, therefore, ends in the inquiry whether the legislature could and did authorize the closing of the street effectually as against the plaintiff, without making compensation. That question is settled by Wheeler v. Clark, 58 N. Y. 270. The effort on the part of the respondent is to distinguish that case by insisting upon certain limitations of the general power which were not then in question, but are made applicable by the facts before us.

It is claimed that the doctrine of Story v. Elevated R. Co., 90 N. Y. 122, preserved to this defendant, as an abutting owner, a property in the street of which she could not be deprived without compensation; and, although she held no covenant from the city, yet her land having been assessed for the costs of the street when purchased of the plank-road company, her property right is equally clear and certain. We need not consider or discuss that question; for the closing of the street here in controversy is in front of plaintiffs' premises, and not of hers, and does not take from her light or air or convenience of access. No right appurtenant to her lot as abutting on the street has been infringed.

But it is further...