In re Opening Ave. D

• Decision Date: 13 December 1910
• Parties: In re OPENING AVENUE D IN CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 536

93 N.E. 498

In re OPENING AVENUE D IN CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 13, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Application by the City of New York to acquire title to land for the opening of Avenue D from Flatbush avenue to Rogers avenue in the Twenty-Ninth ward of the borough of Brooklyn. From an order of the Appellate Division (125 N. Y. Supp. 1111) unanimously affirming an order of the Special Term confirming a report of commissioners of estimate and assessment, the party aggrieved appeals. Reversed, and proceedings remitted to commissioners for a new appraisal.Benjamin Trapnell, for appellant.

Archibald R. Watson, Corp. Counsel (Edward Riegelmann, of counsel), for respondent City of New York.

Robert H. Haskell, for certain other respondents.

CHASE, J.

This proceeding was instituted on the 23d day of December, 1904, by the board of estimate and apportionment of the city of New York passing a resolution pursuant to the provisions of the Greater New York charter (Laws 1901, c. 466), by which it declared ‘it for the public interest that the title to the lands and premises required for the opening and extending of Avenue D from Flatbush avenue to Rogers avenue in the borough of Brooklyn, city of New York, should be acquired by the city of New York.’ The said board by its resolution requested the corporation counsel of the city to make application at a Special Term of the Supreme Court for the appointment of commissioners of estimate and assessment and to take the necessary proceedings in the name of the city of New York to acquire title for the use of the public to the lands required for the purpose of opening and extending said Avenue D as stated. Commissioners of estimate and assessment were thereafter duly appointed, and the oaths of said commissioners were duly filed as required by law on the 14th day of June, 1905. On the 17th day of November, 1905, the board of estimate and apportionment, pursuant to the provisions of the Greater New York charter, by resolution directed ‘that upon the 15th day of December, 1905, the title to each and every piece or parcel of land lying within the lines of said Avenue D from Flatbush avenue to Rogers avenue in the borough of Brooklyn, city of New York so acquired shall be vested in the city of New York.’

It is not claimed that the city of New York became vested with the title to said lands prior to December 15, 1905, and it is conceded that the city did become vested with the title on that day. The commissioners of estimate and assessment proceeded to take testimony as to the value of the land affected by the proceeding in behalf of the property owners and the city, and on June 2, 1908, they adopted and signed their then final report, by which they found and assessed the damages for parcel No. 1, which will be hereafter further described, at $28,780, and for parcel No. 3, which will also be hereafter further described, at $28,330. A motion was made at a Special Term of the Supreme Court to confirm their report, but it was denied, and the report was remitted to the commissioners for revision and correction. The judge presiding at the Special Term wrote an opinion which is made a part of the record. Subsequently the commissioners, pursuant to the order directing a revision and correction of their report, met and heard further testimony on behalf of the appellant and the adjoining property owners. The city did not offer any furthertestimony, but its counsel addressed the commission as follows: ‘In behalf of the city of New York I will say that I believe there will be no necessity of the city offering any evidence in this case in view of the decision of Mr. Justice Kelly, and the city originally had presented proof as to values assuming that this property in question was unincumbered, and that the city in acquiring the fee to same should be compelled to pay the market value. In view of the fact that the town survey commissioners' map has been offered in evidence and that the property known as Avenue D, from Rogers avenue to Flatbush avenue, is shown on said map as a proposed street to be laid out in Kings county, and without making any claim that this property is subject to easements by reason of said map, but in view of the dictum laid down by Judge Kelly to the effect that the land in Avenue D, between the points indicated, is in an ownership entirely distinct from the ownership of the abutting land, and that it is of no use other than for street purposes, the commissioners would be justified in making an award for such land which would be a value in accordance with said conditions and circumstances. I believe that there have been cases of this character in the city of New York in some one of the boroughs where similar conditions existed where the commissioners have made an award of $1 a front foot, and I will later submit any information about that case that I can obtain to the commissioners. If the commissioners believe that they need any proof in behalf of the city to show any different value in this proceeding other than its full market value as indicated by the testimony in the case (I mean when I speak about testimony in the case, the original case), why, I would respectfully suggest that a day be set in the near future on which the city may introduce such proof, but I personally believe that in cases of this character, in cases where land is subject to easements, that there is really no necessity for any proof; that the commissioners may take the facts into consideration and award an arbitrary nominal value for land of this character.’ An adjournment was then taken by the commissioners for a few days when they again met and gave instructions for the preparation of an amended preliminary report wherein the award of damages for the different parcels was to be made at the rate of $1 per running foot measured along the center line of the street. The amended preliminary report and subsequently a final report were signed and filed accordingly in each of which the sum awarded for damages by reason of taking parcel No. 1 is $289.97 and for parcel No. 3, $720, being $1 per running foot of the street as stated. The final report was thereafter in all things confirmed by the court at Special Term. An appeal was taken from the order confirming said report to the Appellate Division, where it was unanimously affirmed, without opinion. This appeal is taken from such order of affirmance.

It is necessary briefly to trace the history of the property taken by this proceeding. It was formerly a part of what was well known for many years as the Pope farm. The Pope farm was a strip of land only about 160 feet in width, and it extended easterly from Flatbush avenue in a straight line about 3,000 feet. In 1869, the Legislature by chapter 670 of the laws of that year passed an act entitled ‘An act for the appointment of commissioners to lay out a plan for roads and streets in the towns of Kings county.’ By that act commissioners were named for the purposes stated in the title of the act. It was provided by said act that the commissioners should have ‘exclusive power to lay out streets, avenues and public places, of such width, extent and direction as they shall decide, and after the passage of this act, until the adoption of such permanent plan, no person or persons, or officers, shall lay out streets or roads in said towns, without the consent of said commissioners first obtained, except in cases where streets, avenues or roads have been or shall be authorized by special acts of the Legislature, in which cases such acts shall have full power and effect, anything in this act to the contrary notwithstanding.’

It was further provided that, after the adoption of such permanent plan, ‘no street or avenue shall be laid out in said towns, or either of them, except in accordance with said plan so adopted, and all streets or avenues afterwards opened, widened or improved, shall be made to conform to such permanent plan and the lines thereof. If any buildings shall be erected on the line of any avenue or street, as laid out on said plan after the filing of said map, no compensation shall be paid to the owner thereof on the opening of said street.’ Section 5. The commissioners so appointed adopted a permanent plan for laying out streets, avenues, and public places, which was duly filed June 13, 1874, and upon such permanent plan Avenue D as laid out by them passed through the Pope farm so as to leave on the north side thereof a strip of land substantially 60 feet in width, and on the south side thereof another strip of land substantially 20 feet in width. Nothing further was done so far as the lands acquired in this proceeding are concerned until the commencement of the proceeding. Rogers avenue and Bedford avenue each cross said Pope farm. The lands acquired in this proceeding are the lands described as Avenue D, from Flatbush avenue on the west to Rogers avenue on the east, and they are crossed by Bedford avenue. The distance on the center line from Flatbush avenue to Bedford avenue is 289.97 feet, and the land acquired in this proceeding lying between said avenues is known as parcel No. 1. The distance on the center line from Bedford avenue to Rogers avenue is 720 feet, and the land acquired in this proceeding lying between said avenues is known as parcel No. 3.

On August 1, 1904, the title to the lands for the purpose of opening Avenue D east of Rogers avenue had vested in the city of New York. On September 2, 1904, before the commencement of this proceeding, the appellant herein purchased with other lands all that part of the Pope farm situated west of Rogers avenue and between Flatbush avenue and Rogers avenue from the then owners thereof. On the 28th day of June, 1905, the appellant conveyed to one Steers that part of the Pope farm lying between Flatbush avenue and Rogers avenue with the following...