Forster v. Scott

• Citation: 32 N.E. 976,136 N.Y. 577
• Parties: FORSTER v. SCOTT.
• Decision Date: 17 January 1893
• Court: New York Court of Appeals

136 N.Y. 577

32 N.E. 976

FORSTER

v.SCOTT.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from superior court of New York city, general term.

Controversy between Frederick P. Forster and David Scott, submitted without action, for the specific performanco of a contract for the sale of real estate. From a judgment for plaintiff, (17 N. Y. Supp. 479.) defendant appeals. Affirmed.

Rollin H. Lynde, for appellant.

Forster & Speir, (Henry A. Forster, of counsel,) for respondent.

O'BRIEN, J.

The question in this case is is respect to the plaintiff's rights under a contract made by him with the defendant June 18, 1891, whereby he agreed to sell and the defendant to purchase a parcel of vacant land in the city of New York, at a price specified, subject to, but without assuming, a mortgage thereon of $4,000. The plaintiff, on his part, agreed to convey the premises to the defendant by a full covenant warranty deed, sufficient to vest the title in fee simple, free from any lien or incombrance except the mortgage. At the time stipulated in the contract, the plaintiff tendered to the defendant a deed in the required form, and containing the proper covenants, which the defendant declined to accept, for the reason that, upon searching the title, he had discovered that there was such an incumbrance upon the land that the plaintiff was unable to convey a good title, as required by the contract. The facts were agreed upon and submitted to the general term under the provisions of section 1279 of the Code, where it was held that no lien or incumbrance, aside from the mortgage, existed or attached to the land by reason of the facts so stated, and directed judgment for the plaintiff that the defendant accept the deed tendered, and pay the purchase price. The facts, so far as they are material to the point involved, are these: On the 18th of October, 1890, the department of parks of the city of New York, under the provisions of chapter 681 of the Laws of 1886, filed a map of a proposed street or avenue, which entirely covers the plaintiff's lot. The map so filed complies strictly, with respect to form and substance, with all the provisions of law on the subject. The proposed street has not been opened, and no proceedings have been taken to open it, or to acquire the title to plaintiff's land by condemnation. Section 677 of the consolidation act provides as follows, with reference to damages for taking lands for such streets when the same are finally opened: ‘No compensation shall be allowed for any building, erection, or construction which at any time subsequent to the filing of the maps, plans, or profiles mentioned in section six hundred and seventy-two of the act may be built, erected, or placed in part or in whole upon or through any street, avenue, road, public square, or place exhibited upon such maps, plans, or profiles.’ The plaintiff's vacant lot derives almost its entire value from the fact that it is possible to use it for building purposes. The facts, therefore, present two questions: (1) Whether, assuming the statute to be valid, a lien or incumbrance was created and attached to the land in question by the filing of the map by the park department; and (2) whether the legislature had power, under the constitution, to enact, as it virtually did, that whenever land thus exhibited upon the map is taken for street purposes, at any time after the filing thereof, no compensation shall be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding.

An incumbrance is said to import every right to or interest in the land, which may subsist in another, to the diminution of the value of the land, but consistent with the power to pass the fee by a conveyance. 1 Bouv. Law Dict. p. 696; 2 Greenl. Ev. § 242; 3 Washb. Real Prop. p. 659, § 14. Any right existing in another to use the land, or whereby the use by the owner is restricted, is an incumbrance, within the legal meaning of the term. Wetmore v. Bruce, 118 N. Y. 319, 23 N. E. Rep. 303. It was conceded by the general term that the public authorities might or might not appropriate the land, according to their pleasure, notwithstanding the filing of the map; and, further, that in case the-owner, after the map was filed, made improvements upon it, he did so at the peril of losing the enhanced value of the land resulting therefrom. These propositions seem to be correct, but we are constrained to differ with that court in the conclusion that such a situation does not impair the value of the property, and amount to an incumbrance, within the meaning of the contract. If the law was valid, it virtually imposed a restriction upon the use of the property, because it enacted that it could not be used for building purposes, except at the risk to the owner of losing the cost of the building...