Mott v. Eno

• Decision Date: 02 May 1905
• Citation: 181 N.Y. 346,74 N.E. 229
• Parties: MOTT et al. v. ENO.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 346

74 N.E. 229

MOTT et al.

v.ENO.

Court of Appeals of New York.

May 2, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Hopper S. Mott and others against Amos F. Eno. From a judgment of the Appellate Division (90 N. Y. Supp. 608,97 App. Div. 580), affirming a judgment entered on report of a referee, plaintiffs appeal, and defendant brings cross-appeal. Reversed.

This action was brought to eject the defendant from a plot of land on the easterly side of Broadway, between Fifty-Second and Fifty-Third streets in the city of New York, to the possession of which, as owners in fee of an undivided one-half interest therein, the plaintiffs alleged that they were entitled. The defense was that of a denial of the plaintiffs' allegation and of title in the defendant, exclusive of any other right thereto, and under which he and his predecessors in interest have had possession and occupation of the premises continuously. The trial before a referee resulted in a judgment that the plaintiffs, as to a portion of the plot, were the owners of an undivided one-half interest, and were entitled to the possession thereof, subject, however, to easements of light, air, and access appurtenant to the defendant's ownership of the adjacent land. As to a portion of the premises described in the complaint, being a narrow strip of land which forms the easterly side of the plot, the judgment was in favor of the defendant. Cross-appeals were taken to the Appellate Division in the First Department. The plaintiffs appealed because of the denial of an interest to the extent claimed by them and of the easements to which their ownership was adjudged to be subject, and the defendant appealed because of any interest having been adjudged to the plaintiffs. The Appellate Division affirmed the judgment by a divided court. Cross-appeals were again taken to this court.

The premises the title to which is in controversy, prior to the widening and straightening of Broadway under an act passed in 1869, formed part of the Bloomingdale Road, or Broadway, as then laid out. In 1714 the farm which included the premises in question was owned by Matthias Hoppe, afterwards called Hopper. Upon his death his son, John Hopper, succeeded to the ownership. He died in 1779, devising in six parts all of the lands to his five children and the children of a deceased son. One of his children, John Hopper, Jr., through an agreement of the devisees partitioning the property, in 1782, acquired title to his one-sixth part by conveyances of two parcels of land, one upon the easterly side and one upon the westerly side of Bloomingdale Road, each being numbered 6 upon what is known as ‘Bancker's Partition Map.’ The premises in question were part of the bed of that road as it ran through that portion of the Hopper farm, and lay between the two parcels conveyed to Hopper, Jr. He died in 1819, leaving a will, by which he devised his real estate in trust for his three grandchildren, Ann Striker, Winifred Mott, and Garrit H. Striker. Ann died in 1860, without issue. Winifred died in 1862, leaving issue; and Garrit died in 1868, also leaving issue. The plaintiffs claim through Winifred Mott, and it is undisputed that, if the premises have remained a part of the Hopper estate, then they are entitled to a one-half interest therein. The defendant derives his title through certain partition proceedings, and it is his claim not only that title to the premises passed by the allotments in partition, but that the plaintiffs' ancestors had been in fact divested of any interest therein by force of certain statutory proceedings relating to the laying out or widening of Bloomingdale Road, or to the later proceedings for the straightening of Broadway. From the facts as they are found by the referee it appears that the Bloomingdale Road was laid out in the colonial period of the history of New York, and that it extended, in a northwesterly direction from about the present Broadway and Sixteenth street. In 1751 a colonial act, reciting that the road through the Bloomingdale district had been laid out to a width of four rods in pursuance of an act of 1703, authorized it to be reduced to two rods. At some date prior to 1819 the road had been actually widened from two rods to four rods, according to Randel's map filed in that year. In the years from 1791 to 1797 various proceedings were taken by the common council of the city to extend the road to the Kingsbridge Road, and to restore it to its earlier width of four rods; the authority for which is to be found in an act of the State Legislature passed in 1787 (Laws 1785-88, p. 480, c. 61), and entitled ‘An act for the better regulating the public roads in the city and county of New York.’ By its provisions the mayor, aldermen, and commonalty of the city of New York were ‘appointed commissioners to regulate and keep in repair the present public roads or highways; and to lay out, regulate and keep in repair such other public roads or highways, as shall hereafter be laid out in the said city and county.’ The act authorized them ‘to widen or alter all public roads and highways, already laid out in the said city and county, to such convenient breadth, not exceeding four rods, nor less than two rods, as the said commissioners shall judge fit, to make them passable for horses and carriages. * * * If, in widening or altering any such public road or highway now in being, or if in laying out any such public road or highway hereafter, or in widening or altering the same, the said commissioners shall take or require for such purposes the lands of any person or persons, they shall give notice thereof to the owners or proprietors of such land,’ etc. ‘And to the end that reasonable satisfaction may be made for all such lands as shall be taken and employed for the use aforesaid, the said commissioners shall and may treat and agree with the owners and persons interested therein, * * * and if any such owners or proprietors shall refuse to treat in manner aforesaid, then, and in such case, it shall and may be lawful to and for the mayor, or recorder, and any two or more aldermen, by virtue of this act, to issue a precept,’ etc. Here follows the provision for condemnation proceedings in the mayor's court, wherein a jury was to assess the damages ‘to be awarded to the owner or owners of such land according to their several and respective interests and estates of and in such land, or any part thereof, for their respective interests and estates in the same.’ The judgment of the said mayor's court, and the payment of the money awarded to the owners, or tender and refusal thereof, should be binding against the said owners, and should be a ‘full authority to the said commissioners to cause the said land to be converted to and used for the purposes aforesaid.’

In 1793, the common council ordered ‘that the said road, from its commencement at Horne's house to Nicholas De Peyster's barn be immediately opened to its proper and legal width of four rods.’ These were points to the south and to the north, respectively, of the premises. In 1797 a petition was presented to the common council praying for the opening of Bloomingdale Road to its proper width of four rods, and the appointment of a committee of three aldermen was ordered ‘to direct the proprietors of the land, where the road is not of the proper width, to remove their fences, and then to direct the roadmaster to work and put the road in order.’ That it was actually so widened at some time prior to 1819 is not disputed. By chapter 115, p. 125, of the Laws of 1807, commissioners were appointed by the Legislature to lay out streets, roads, and public squares. Maps and surveys were to be filed. Whenever the mayor, etc., should desire to open any street, road or public place, they might agree with the owners of the lands required as to the compensation to be made therefor, or, in case of disagreement, they might apply to the Supreme Court for commissioners to estimate the damage. Upon the assessment being confirmed and paid, the mayor, etc., should be seised in fee of all said lands, in trust, nevertheless, to keep the same open for a public street, road, or public square forever. In 1813 (chapter 86, p. 342, 2 Rev. Laws of that year) was passed the familiar ‘Street Opening Act,’ whose provisions need not now be particularly mentioned otherwise than that the act of 1807 is referred to and was not repealed. In 1847 an act was passed (Laws 1847, p. 196, c. 203) entitled ‘An act to lay out a new street in the Twelfth Ward of the city of New York and to keep open a part of the Bloomingdale Road in said city.’ The first section of the act contains a description of the land to be taken by metes and bounds, which included within its boundaries all of the Bloomingdale Road, as it then existed, to the extent of the new street to be laid out. The land described is ‘declared for all legal purposes to be one of the streets of the said city in like manner as if the same had been so laid out by the commissioners appointed in and by the act entitled ‘An act relative to improvements, touching the laying out of streets and roads in the city of New York and for other purposes,’ passed April 3, 1807.' Thereupon, pursuant to a resolution of the common council to open the street, the municipal authorities initiated the proceedings under the act of 1813 and its amendatory acts by petition, which set forth that the common council ‘have deemed it advisable to open the Bloomingdale Road from the Seventh avenue to the Tenth avenue, in the Twelfth Ward of the said city, the said Bloomingdale Road being a street in that part of the said city, laid out into streets, avenues, squares and public places by the commissioners of streets and roads under and by virtue of an act * * * passed April 3, 1807 [giving the title as just above quoted], by taking for that purpose the lands and premises hereinafter...