Village of Olean v. Steyner
|04 October 1892
|135 N.Y. 341,32 N.E. 9
|VILLAGE OF OLEAN v. STEYNER et al.
|New York Court of Appeals Court of Appeals
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Proceedings by the Village of Olean to condemn an easement in land owned by John J. Steyner and Eleanora Dilks for a village street. From an order of the general term affirming an award of nominal damages, the landowners appeal. Affirmed.
Frank Rumsey, for appellants.
Fred L. Eaton, for respondent.
A motion is made to dismiss this appeal founded upon the provision of the charter of Olean, which makes the order of the commissioners, when approved by the county judge, final. We do not decide that question, since we are all agreed that the judgment should be affirmed, and prefer to dispose of the case on its merits.
I do not see how the village of Olean can raise the question of a dedication to the public use in this proceeding; for its very existence and prosecution necessarily involves an admission of the landowner's right, and an inquiry into his damages resulting from a necessary taking of that right. If Fifth street was in truth dedicated to the public use, and that dedication accepted by the municipal authorities, the commissioners were at liberty to open the street, and occupy and maintain it, without any proceeding whatever, because simply engaged in regulating and improving a street belonging as such to the village. But the municipality waived any such claim, if it existed, by proceeding under the charter to condemn the landowner's right, and to assess his damages for what was proposed to be taken from him. Manifestly, the village conceded his right when it instituted a proceeding to take it a way, and under a provision of the charter having no application except where there is an owner other than the village, and whose title is to be divested. To say that there is not such owner, and that the easement sought to be condemned belongs to the municipal corporation by the act of the owner, is to deprive the proceeding of all foundation, and invite its dismissal for that reason. The order cannot be sustained on such ground, for the charter does not authorize a taking of the fee, but only an easement for a village street, and precisely that easement had already passed, if there had been a dedication and acceptance, and the municipality finds itself in the awkward position of seeking to condemn its own property for its own use. The question thus necessarily becomes one, not of condemnation, but of title, and ends in the inquiry whether the village owns or does not own the easement; and that question cannot be raised or tried in a proceeding which assumes the landowner's conceded right, and is framed solely to ascertain his just compensation for parting with it.
But, assuming that there was no dedication of Fifth street to the public use, and that the proceeding instituted was therefore properly commenced, and had a substantial purpose to accomplish, it does not necessarily follow that the commissioners made an error of law in awarding nominal, instead of substantial, damages. By the village charter, it was their duty to award such damages only after deducting therefrom the benefit to the owner from the opening of thestreet; and it was proved that both of the owners who are defending had accepted deeds which recognized Fifth street as laid out upon the Gosseline map, and had conveyed to other parties by a description, referring to that map, and bounding the parcels by Fifth street, as thereon delineated. The whole area of land in question was formerly owned by Mrs. Sewell. The Gosseline map was made in 1836, when speculation in real estate reached its highest tide, and almost every owner was insane with expectation. That map spread the village over Mrs. Sewell's land, which was wholly unimproved and covered by the natural forest, and which it has taken the village 50 years to reach and need. After Mrs. Sewell's death, her executors conveyed to Simeon Savage eight lots on block 41, as laid out on the Gosseline map. This deed was in 1862. Four years later the heirs at...
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