author:
Daniels, S.:
     Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE TITLE GUARANTEE AND TRUST COMPANY, Appellant, v. JOHN REILLY, as Register in and for the City and County of New York.

      Bight of the public to make searches and copy maps, ete., in the register’s office of New York city — chap. 410 of 1882, secs. 1742,1747,1751 —1882, chap. 392, as amended by chap. 367 o/1883, and, chap. 167 of 1884 — power of the register to regulate the conduct of persons making searches — to require them to be made under the observation of a custodian — to exclude them for insolence.

    Sections 1747 and 1751 of chapter 410 of 1882 make it the duty of the register of the city and county of New York to permit all persons to have free access to the hooks, records and indices of the office for search at all reasonable times during the day time, and to exhibit the same to persons wishing to make such searches.
    Under the authority “to make and cause to be made, and to purchase and to pay for, all such searches, abstracts, indices, maps and copies of records, as the trustees thereof may deem necessary,” conferred by section 2 of chapter 367 of 1883, upon The Title Guarantee and Trust Company, the relator herein, such company is entitled to examine, by persons in its employment, the books, records, maps and papers of the register’s office, and to make searches, abstracts and copies of the records, so far as that may be considered necessary to place itself in a position to examine and afCord the means of examining title without afterwards resorting to the register’s office.
    In case the register should refuse to allow such examination to be made, a mandamus would be granted compelling him to permit it to be done.
    The register has, however, the power to exercise a reasonable discretion in the care, management and government of his office, and the preservation of the books and records.contained therein, and, so far as that discretionary power extends, the register is entitled to exercise it according to his best judgment to secure the good order of his office and the preservation of the books and papers committed to his custody. To that extent his powers and duties are not subject to be interfered with or controlled by a writ of mandamus.

    Section 1742 of chapter 410 of 1882 authorizes the register to assign one or more suitable persons in his office to have the custody of the records during office hours, in whose presence, under the direction of the register, all examinations of the records shall be made.

      Meld, that the fact that the register permitted persons, other than those employed by the relator, to examine the records without being subject to the observation or surveillance of his custodian, did not prevent him from compelling the persons employed by the relator to make their examination under such observation.

      That the question as to whether or not additional custodians should be appointed was in a great measure confided to the judgment and discretion of the register, which when fairly exercised should not be controlled or overruled by the court.
    The fact that the persons employed to make searches, extracts and copies are insolent to the register justifies him in excluding them from the office.
    The proper form of writ to issue in such a case stated.
    Appeal from art order denying a motion that a writ of peremptory mandamus issue directed to the register of the city and county of New York commanding him to allow certain attorneys and clerks ■of the relator to examine the records in his office.

      Charles M. Daeosta, Julien T. Davies and C. H. Kelsey, for the relator.

      B. F. Dunning and Thomas H. Edsall, for the respondent.
   Daniels, S.:

The relator is a corporation, incorporated under chapter 392 of the Laws of 1882, by the name of the German-American Loan and Trust Company of the city of New York. JBy chapter 167 of the Laws of 1884, its corporate name was changed to the Title Guarantee and Trust Company. Its powers have been fully defined by ■section 2 of chapter 367 of the Laws of 1883, amending section 9 of its charter. Among these is the power given to it “ to guarantee bonds and mortgages and titles to real estate.”

In' the course of its business, an application was made to it for a guarantee policy to the amount of $30,000 upon the title to certain lands on One Hundred and Forty-seventh street, in the city of New York, and persons in its employment were assigned to search the title of the land at the office of the register, the respondent in this case. According to the affidavits which have been produced, they were prevented from doing so by the interposition of the register and persons officially in his employment, who declined to permit them to examine the records of deeds and mortgages in his office. The register himself seems to have been under the conviction that it was not the purpose of the relator' to search the title of the piece of land already mentioned, but that its real object was to acquire information, from the examination of the books and maps of the office, “ to create a set of books and of maps, by means of which all information necessary to enable a conveyancer to examine a title with speed and accuracy, can be placed at his disposal, within a short time after he has made a requisition upon the companies,’.’ and that he was not legally obliged to permit the examination of the records and maps of the office for the accomplishment of this object. And to prevent that, the persons assigned by the relator to duty in his office were not permitted to examine the records, maps and papers of the office. But the register and those acting under him were not authorized to prevent the examination of the books, records and maps of his office by the persons in the employment of the relator, whether it was to ascertain the condition of the land referred to, or to create books and maps of its own, by which titles to real estate could be more speedily and accurately examined than that could be done in the register’s office. For, by sections 1747 and 1751 of chapter 410 of the Laws of 1882, it has been made the duty of the register to permit all persons to have free access to the books, records and indices of the office, for search at all reasonable times during the day time, and he has been directed to exhibit the same to persons wishing to make searches. And that clearly authorized the relator to search the title to the land for which, it was stated, it had received and accepted an application for a guarantee policy.

But if it was not the real, as it was the expressed, object of the relator to search the title of that land, but to examine the books, maps and papers of the office to create a set of books of its own, from which searches of titles could afterwards be made, the register was not authorized to defeat the efforts designed to be made by the relator to secure this end. For, by section 2 of chapter 367 of the Laws of 1883, it was authorized “to make, and cause to be made, and to purchase and to pay for, all such searches, abstracts, indices, maps and copies of records, as the trustees thereof may deem necessary.” This power is sufficiently broad and comprehensive to entitle the relator, by persons in its employment, to examine the books, records, maps and papers of the register’s office, and to make searches, abstracts and copies of the records, so far as that may be considered necessary, to place itself in a position to examine and afford the means of examining titles, without afterwards resorting to the register’s office. The power given to the relator for this purpose is unqualifiedly broad, and entitled it to acquire the information necessary to do what the register himself suspected it was the real object and purpose of the relator to secure. In his suspicions he was probably correct, even though the relator ostensibly desired to examine this particular title, for it was proposed to examine the records of the office thoroughly and completely and to make such extracts, notes and copies therefrom as might be necessary to enable the relator to supply the means of examining titles to real estate in the city of New York, without resorting to the office of the register. He could not, therefore, either by himself or others, interfere to prevent persons in the employment of the relator from obtaining, by the use of the books, maps and papers of his office, the information necessary to place itself, or its own books, in this position. He had no such arbitrary control over the books, records, maps and papers of his office, as would permit that to be done. For, in making searches, all persons have been secured free access to the records and indices of the office, and it has been made the duty of the register to exhibit them to such persons. And by the additional authority conferred upon the relator it may not only make searches, but abstracts, indices, maps and copies of records. ■ The register was accordingly in error in believing, as he seems to have done, that he could lawfully prevent persons in the employment of the relator from making such abstracts and copies of the records of his office.

The obligation imposed upon the register to permit the books, records and maps of the office to be examined is absolute in its character. And so is the additional right given by the charter to the relator. "When either may be applied for in an orderly way, he is bound to acquiesce in the application and permit the examination to be made and the copies and abstracts to be taken. The duty imposed upon him in this respect is entirely ministerial, and its observance may be lawfully required through the instrumentality of the writ of mandamus. Over this subject he has no discretion, and where that may be the case, there “ the writ is freely granted to compel the performance of strictly ministerial duties.” (High on Extraordinary Remedies, § 46.) It is true, as it has been urged on behalf of the register, that the right must be clear and unquestionable to entitle it to be enforced by a writ of mandamus. (People ex rel. Mott v. Board of Supervisors, 64 N. Y., 600; People ex rel. Slavin v. Wendell, 71 N. Y., 171.)

But the facts, as they have been presented by the affidavits in this case, show a clear and unquestionable right on the part of the relator to search the records of the register’s office, and to make abstracts and copies of the same. Upon this subject it was held in People ex rel. Fiedler v. Mead (24 N. Y., 114, 119), that “it is one of the most usual offices of the writ of mandamus to compel executive and ministerial officers to perform official duties appertaining to their offices, where an individual has a private and a pecuniary interest in such performance.” And the existence of a right of action against the officer for refusing or omitting to perform his legal duty will not prevent the issuing of the writ, especially when it would fail, as it would in this instance, to provide anything like indemnity for the denial of the right.

But while a case has been presented upon the undisputed facts made to appear by the affidavits for the writ of mandamus, it cannot be directed to be issued without observing the restrictions imposed upon the exercise of these rights vested in the relator. The register himself has been given the government, management and control of his office. The books and records contained therein are stated to exceed 4,500 in number, and they contain the records of the titles to the real estate in the city and county of New York. These records it has been made the duty of the register to preserve, protect and maintain, and in the discharge of that duty the exercise of a large degree of discretionary power and authority necessarily arises. This subject was fully considered in the late case of People ex rel. German American Loan and Trust Company v. Richards (99 N. Y., 620), which was a similar application made by the same relator. And the decision of the Court of Appeals in the final disposition of that application maintains the power of the register to exercise a reasonable discretion in the care, management and government of his office, and the preservation of the books and records contained therein. So far as that discretionary power extends the register is entitled to exercise it according to his best judgment to secure the good order of his office and the preservation of the books and papers committed to his custody. To that extent, his powers and duties are not subj ect to be interfered with or controlled by means of the writ of ma/ndamus. “ For wherever public officers are vested with powers of a discretionary nature as to the performance of any official duty, or in reaching a given result of ■ official action they are required to exercise any degree of judgment, while it is proper by mandamus to set them in motion and to require their action upon the matters officially intrusted to their j udgment and discretion, the court will in no manner interfere with the exercise of their discretion, nor attempt by mandamus to control or dictate the judgment to be given.” (High on Extraordinary Remedies, § 43; People ex rel. Hammond v. Leonard, 74 N. Y., 443.)

The affidavit of the register shows that he has employed in the six separate rooms of his office 135 persons, and they are employed in the performance of the various duties of that office. Beyond the accommodation of these persons, the rooms also afford convenient means for persons making searches of titles and examinations of papers in the office. And the subject is necessarily committed, to a great degree, to his discretion, as to how much of the conveniences of the office are required to be preserved for the accommodation of these persons. It is not his duty to permit the office to be thronged needlessly with persons examining its books or papers, but it is his duty to regulate,, govern and control his office in such a ■ manner as to permit the statutory advantages to be enjoyed by other persons not employed by him as largely and extensively as that consistently can.be done. He has no property in these books or papers, but is their mere custodian, whose duty it is securely to preserve and maintain them for the benefit, advantage and convenience of the public. And in the exercise of his discretion it should undoubtedly be done with a view to securing these ends. It cannot be made the pretense or excuse for the arbitrary exclusion of any persons from his office, whose duties require their services there. What the law expects and requires from him is the exercise of an unbiased and impartial judgment, by which all persons resorting to the office, under legal authority, and conducting themselves in an orderly mannei’, shall be secured their lawful rights and privileges, and that a corporation formed in the manner in which the relator has been shall be permitted to obtain all the information, either by searches, abstracts or copies, that the law has entitled it to obtain.

In the performance of these duties, by section 1742 of chapter 410 of the Laws of 1882, it has been made the duty of the register to assign one or more suitable persons in his office to have the custody of the records during office hours, in whose presence, under the direction of the register, all examinations of the records shall be made. And it appears from the affidavits that a person in his office has been assigned by him as such custodian of these records. The fact has also been shown that persons hot in the employment of the relator are permitted to examine the records of the office without doing so under the observation or surveillance of his custodian. But that fact clearly will not entitle the relator, or the persons in its employment, to claim as a legal right the same degree of indulgence. If the register or the custodian of the records has not enforced the observance of the duty created by this section of the act in all cases, that omission will not entitle the relator to insist upon the same indulgence in behalf of the persons who are in its employment. For this duty has been enjoined by the statute, and the court has no authority to absolve the register from the obligation to perform it. Its authority, on the other hand, as well as its duty, is to require the observance of this and all other statutory directions. And under this provision the persons in the relator’s employment, who desired to examine, search, abstract or copy the records or maps, are required to do so in the presence of this custodian, and the rights of the relator are subordinate to the observance of this obligation.

It has been suggested that the register should appoint additional custodians, if the one who has already been appointed is incapable of fully discharging all the obligations to which he has been subjected by this section of the statute. But that subject is one which is necessarily in a great measure confided to the judgment and discretion of the register himself. It is for him to determine how many persons’ services will be required for .the management of this part of the business of his office. And he could not be directed to make additional appointments simply to meet the exigencies which might be occasioned by an extended temporary demand, created by the services of the persons in the employment of the relator. It is the duty of the register to consider the state of the business of his office in this respect, as it may be expected from time to time to present itself, and to provide for all tlie ordinary emergencies requiring this service of the person having the custody of the records. And when that has been done, and the register has fairly exercised his judgment in making his selections or appointments, the court cannot interfere and direct him to extend them, because the convenience of some particular persons or corporation may require a greater degree of attention than the appointee at the time may be able to give them.

The register has, in part, excused himself for the omission to-give the persons employed by the relator the degree of attention they were entitled to receive, because of the insolent conduct of some of them towards himself, whom, he states, asserted their intention of taking down the books without my permission, or that of my custodian.” Their affidavits, in a general way, deny that they were chargeable with any incivilities about his office. But it does appear that they did insist upon a very large degree of liberty in taking down and examining the books of the office. And in the statement sent by the relator to the register, notice was given to-him, which may have induced him, more readily than he otherwise would, to regard the conduct of the persons in the employment of the relator as intended and designed to be uncivil and offensive. If the persons employed to make these searches, extracts and copies were insolent to him, he had the right, on that account, to exclude them from the office; for persons who frequent public offices to make examinations and acquire information are required to conduct themselves in a civil and orderly manner. It is most probable, from the statements contained in the affidavits, that neither side was disposed to be particularly conciliatory towards the other. But while that did not forfeit the right of the relator to make the abstracts and copies designed to be made for it, it still forms an excuse by way of palliation for the conduct of the register and the persons in his employment. And that excuse should be so far allowed to be operative in the case as to-relieve him from the imposition of the costs of this appeal, or of the application which was made, especially as the special power given to the relator by its charter does not seem to have been brought to his attention. But the order from which the appeal has been taken should be reversed, and an order should be entered directing a writ of peremptory mandamus to be issued, requiring tbe register to allow tbe records, maps and papers of his office to be examined by persons employed by the relator for that purpose, and to permit extracts and copies of the same to be made, and to allow that to be done by such a number of persons, so employed, as in the exercise of his unbiased judgment and discretion can be permitted at the same time to pursue their researches in the office without depriving other persons equally entitled to make searches of titles, of the convenient opportunity for doing so, and under the restriction created and imposed by section 1742 of chapter 410 of the Laws of 1882. The order from which the appeal has been taken should be reversed, without costs, and an order made to this effect in the proceedings.

Davis, P. J., and Beady, J., concurred.

Beady, J.:

The effect of the acts which relate to the relator’s incorporation and acts kindred to the subject, to which Justice Daniels refers in his elaborate and learned opinion, is to create another register’s office in the city of New York, and the relator is allowed to avail itself of all the advantages accruing from the expenditures of the municipality in getting together and in preserving the records affecting the titles to lands in the city of New York. The employment of a number of persons to make transcripts from the records which will enable the relator to make the necessary examination of a title in its own office would necessarily, unless restricted by some rigorous rule, very much interfere with the examination of titles in the registers office by persons employed for the purpose, particularly the clerks and the members of the bar who are generally engaged in the pursuit of information with regard to one or more pieces of property to which their attention either officially' or professionally has been especially called. The acts referred to, however, are so ■comprehensive in character that the privileges secured to it cannot be interfered with or controlled except in the manner indicated in the opinion of Justice Daniels. The exercise of the powers, however, conferred upon the relator should be entirely subject to the responsibilities and duties assumed by the register upon taking the oath of office, and, therefore, under regulations established by him, reasonable in character, but always with a view to the rights of others to examine the records in such way that they should not be interfered with or delayed. It may be that the incorporation of the company was wise and may ultimately benefit purchasers of real estate, but it is quite evident that it must seriously affect the revenue derived from the office of register if the company be successful and rely in its transactions upon the examinations made in its office without resorting to the official search which in the profession is generally considered to be indispensable. With that result we, it is true, have nothing to do; but it is our duty so to control the relator in the exercise of its large powers as to prevent any undue interference with the rights of others and of the register and. his subordinates, as well as the preservation of the records from mutilation or defacement by careless or unskilled persons.

For these reasons, I concur with Mr. Justice Daniels in the opinion delivered upon the proceedings for a mandamus.

Order denying motion for mandamus reversed, without costs, and order entered as directed in opinion.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    In the Matter of the Petition of the GILBERT ELEVATED RAILWAY COMPANY, Relative to Acquiring Real Estate in the City of New York.

      Damages for the taking of real estate in a street in a city, for the purposes of cm elevated railroad — right of cm owner abutting on a street dedicated to public use — a railroad cannot be constructed thereon without his consent — right of an abutting owner to light, air and access to his lot — measwre of damages for any interference therewith — when an owner of a lot, bounded on the side or line of a street, takes title to the bed of the street — 3 S. S. (6th ed.), 533, part 1, chap. 18, tit. 15, § 14.
    Upon the application of the Gilbert Elevated Railway Company, the General Term made an order, appointing commissioners for the purpose of ascertaining and appraising the compensation to be made to the owners of certain real estate situated in the city of New York, proposed to be taken for the purposes of the said railway company. The parcels of land to be taken were situated within the bed of South Fifth avenue, which is seventy-five feet wide. South Fifth avenue, which embraces what was formerly Laurens street, was widened in 1870 by adding twenty-five feet on the westerly side, by proceedings instituted under the act of 1813. Laurens street was laid out and dedicated by a former owner of the lands as a public road, and no compensation was ever paid by the public, either for the fee or for the easement to use the land for a public road.
    The lots owned by a portion of the claimants abutted on the easterly side of South Fifth avenue, and were described in the deeds conveying them as bounded by “ Laurens street,” and not as “ along the easterly line” of Laurens street.

      Held, that the owners of these lots had an estate in fee in the easterly twenty-five feet of the avenue, subject only to the easement of the public to use the same as a street.
    That, as an incident to this fee, they had the right to have no new burden cast upon the land without their consent, or compensation being made to them therefor.
    That they had in this case the further right to dig vaults under the street without making any payment to the city for a license therefor.
    That they had, apart from the fee and this incident, a special, private, property right that the air, light and access afforded by an open public street should not be taken without their consent or compensation.
    That the amount of their damages should be determined by considering what the property was fairly worth before the taking by the railroad, what the property left after the taking was fairly worth, and awarding the difference as the compensation for the taking.
    The lots owned by a portion of the claimants abutted on the westerly side of South Fifth avenue, and were described in the deeds conveying them as bounded “by Laurens street,”and not as “along the westerly line of Laurens street.”

      Held, that the owner thereof had an estate in fee in the central section of South ■Fifth avenue — originally the western half of Laurens street— subject only to the easement of the public to use the same as a public road.
    That when the city took the fee to the present westerly section of South Fifth avenue in trust, to keep the same open as a public street, there was left in original abutting owners a naked fee with the ultimate right of reversion therein, and that this fee was of the same quality as the absolute fee which they had in the central section subject to the public easement, and of the same quality as the absolute fee of those of the claimants of the east side in the easterly section and that its value is the same, less the amount which the owners would have to pay to the city for vault purposes.
    The lots owned by a portion of the claimants abutted some on the east and some on the west side of South Fifth avenue, and were described in the deeds as bounded “ along or by the side or line of the street,” and not “ by the street.” The commissioners decided that these owners had no title to the land in the street, but found, as matter of fact, that the light, air and access of the claimants’ lots were interfered with and taken to an appreciable extent by the petitioner’s acquisition of the lands in question, and, as matter of law, that these were private property rights, and, as easements, appurtenant to the lots fronting on the street or otherwise, belonged to the abutting property owners, whether they had or had not title to the land itself in the street.

      Held, that the commissioners erred in holding that the owners, whose lots were bounded “along or by the side or line of the street,” acquired no title to the land in the street; that, as the conveyances contained no reservation of an interest in the bed of the street by any appropriate phrase, covenant or particularity of description, which left no doubt as to the intention of the grantors so to do, and as there was no evidence that the grantors did not intend to convey their entire estate, or that they intended to except the title conveyed from the operation of the general rule that a lot bounded on a street extends to its center, that rule applied, and the abutting owners took the fee to one-half of the bed of the street, subject to the public easement, as aforesaid.
    Appeals by botb parties from appraisals and reports of commissioners.
    On December 28, 1877, the General Term made an order under the provisions of tbe Revised Statutes (part 1, chap. 18, tit. 15, § 14, et seq. [6th ed.], vol. 2, p. 523), on the petition of the railway company, appointing Messrs. William Orton, John H. Sherwood and Edward Mitchell, commissioners “ for the purpose of ascertaining and appraising the compensation to be made to * * * Amos F. Eno and Amos R. Eno, as owners of the real estate so proposed to be taken for the purposes of the said Gilbert Elevated Railway Oompany, which said real estate is situated in said city and county of New York and is described,” etc. Mr. Orton having died, by order dated May 14, 1878, Mr. John H. Clark was appointed in his place. The pieces of property in question were described in the petition as parcels Nos. 3, 4, 5, 6 and 8, belonging to Amos R. Eno, and No. 7 belonging to Amos F. Eno. All were described as being situated within the bed of South Fifth avenue.
    By order dated January 8, 1879, the description of parcels Nos. 4 and 5 was amended. Upon the trial before the commissioners an amendment was made as to the other parcels. As thus amended the parcels consist of strips on each side of the center line of South Fifth avenue, between the center line and a line seven feet from the side. The avenue is seventy-five feet wide.
    The commissioners made reports as to all the parcels. They bear date April and May, 1879. All the commissioners joined in the report as to parcel No. 5 and as to a part of parcel No. 3. In the other cases Messrs. Mitchell and Sherwood made a majority and Mr. Clark a minority report.
    Parcel No. 3 is sixty-one feet five inches long. It is in front of Nos. 223, 225 and 227 South Fifth avenue, between Canal and Grand streets, on the east side. The compensation awarded was $7,141 —$526.50 being awarded to unknown owners, and the residue, $6,614.50, to Amos R. Eno. Mr. Ciarle united in tbe report so far as concerned tbe award of $526.50 to unknown owners, and $2,725, part of tbe $6,614.50, awarded to Mr. Eno.
    Parcel No. 4 is fifty feet seven inches long. It is in front of Nos. 160 and 162 South Eifth avenue, on the west side, between Broome and Spring streets. The award was $4,562.50. It was made to “ Amos R. Eno, as owner, or to persons interested,” etc.
    Parcel No. 5 is seventy-five feet long. It is in front of Nos. 119, 121 and 123 South Eifth avenue, between Spring and Prince streets, on the east side. The award was $8,500. All the commissioners joined in the report.
    Parcel No. 6 is fifty feet long. It is in front of Nos. 132 and 134 South Eifth avenue, on the west side, between Spring and Prince streets. The award was $4,562.50.
    Parcel No. 7 is forty-eight feet one inch long. It is in front of Nos. 124 and 126 South Eifth avenue, between Spring and Prince streets, on the west side. The award was $5,062.50.
    Parcel No. 8 is twenty-five feet long. It is in front of No. 58 South Eifth avenue, between Houston and Bleecker streets, on the west side. The award was $2,531.25.
    The order confirming the report of the commissioners directed that the $526.50, awarded to unknown owners for a part of parcel No. 3, be deposited in the Shoe and Leather Bank. It made the same direction as to the $4,562.50, awarded to Amos R. Eno, as owner, or to persons interested, for the limited estate, in parcel No. 4. It directed that the residue of the awards be paid to the Messrs. Eno.
    No. 58 South Eifth avenue, in front of which parcel No. 8 is situated, is an unimproved lot without buildings upon it. The value of a lot on South Eifth avenue in the absence of the railroad was, without contradiction, proved to be about $22,000 to $25,000.
    The property in front of which the other parcels are situated consisted of lots and buildings, the buildings representing an additional value for each twenty-five feet of front of about $30,000 to $40,000.
    South Eifth avenue embraces what was formerly Laurens street, widened from fifty feet to seventy-five feet by taking twenty-five feet on the westerly side under proceedings under the act of 1813. Laurens street was laid out through what was known as Bayard’s"West Farm, by Nicholas and Stephen Bayard. They caused a map pf the farm to be made, laying it out into streets- and lots; the lots were described by numbers. The lots were conveyed by the map numbers, and were described as “ bounded by the streets.”
    The reports of the commissioners were before the decision of the Court of Appeals in the Story case.
    The opinion of the majority of the commissioners was that the Messrs. Eno were entitled to compensation for so much of the strips as lay in the bed of what was Laurens street, and that as abutting owners they were also entitled to compensation for deprivation of light, air and access.
    Mr. Clark coincided with the majority of the commissioners that an award should be made for the strips which were taken from the Messrs. Eno. It was his opinion, however, that they had no interest as abutting owners, and that as the strip on the westerly side of the avenue was separated from the abutting property by the widened twenty-five feet of the avenue, it was of no value.
    South Fifth avenue was widened in 1810. It was at an expense to-the property on the west side, of about $1,500 for each twenty-five feet lot in addition to the loss of the strips taken; and at an expense to the property on the east side of the avenue of about $3,000 for each lot.
    The company appeals generally. It contended before the commissioners that the Messrs. Eno had no other right in the avenue than the naked fee title to such parts of the parcels as lay in the bed of old Laurens street, and that as such title was subject to a perpetual easement in the public to use the avenue as a street, its only value was the value of the reversion. The Messrs. Eno contended that, as abutting owners, they were entitled to light, air and access (as has been said, this was before the Story decision); but that, whether that were so orno, the ownership of the plots, subject only to the street uses, secured to them immunity from the railroad, and if that were to be taken from them an award was to be made accordingly. The Messrs. Eno appeal, first, for the insufficiency of the awards, on the proposition that no allowance was made for improvements; and, secondly, that the awards directed to-be deposited in tbe Shoe and Leather Bank should have been awarded to them. The majority of the commissioners delivered the following opinion:
    Opinion of Commissioners :
    For the purpose of valuing the parcels under consideration on South Fifth avenue, its road-bed may be divided into three longitudinal sections, viz., the easterly, central and westerly sections, each twenty-five feet wide. The easterly and central sections together, constitute what formerly was the road-bed of Laurens street. The westerly section was taken by the city under the act of 1813, on the widening of Laurens street in 1870. It is conceded that a former owner of the lands laid out and dedicated Laurens street as a public road, and it is not claimed that any compensation has ever been paid by the public either for the fee or for the easement to use the land for a public road.

      la. The claimants whose lots abut on the easterly section, and whose deeds bound them “by Laurens street,” and not “along the easterly line ” of Laurens street, therefore, have an estate in fee in that section subject only to the easement of the public to use the same as a public road.
    i>. The claimants whose lots abut on the westerly side of South Fifth avenue, and whose deeds bound them “ by Laurens street,” and not “ along the westerly line of Laurens street,” have an estate in fee in the central section, subject only to the easement of the public to use the same as a public road.
    No question is made as to the kind of ownership or estates in the easterly and central sections, where the deeds do not confine the ownership to the line or side of the street. The only question as to those sections is one of value in such cases. The railway company insists that the easement of the public will be so perpetual in its use that the naked fee In the owner is of only nominal value; that the “ taking,” by the railway company, of the estate in the land to which it is entitled by law is only a nominal taking, and that the legislature having declared the railway use to be a public use, the respondents are deprived of nothing except in name.
    The claimants insist that the taking is a new burden different from the present easement, and that the residue of their lands will be depreciated in value by tbe taking, and that substantial damages should be awarded to protect them from loss by reason of the taking. The legislature has no power to authorize a steam railroad to take .a public highway or turnpike road for the construction of a steam railroad, without making compensation to the owner of the fee of the lands in the highway or turnpike, or without his consent. (Trustees of the Presbyterian Society in Waterloo v. Auburn and Rochester Railroad Company, 3 Hill., 569, quoted with approval in Williams v. New York Central Railroad Company, 16 N. Y., 105.)
    Selden, J., in delivering the opinion of the court in this last •ease, says (p. 109): “ But it is unnecessary to refine upon this case. Any one can see that to convert a common highway, running over •a man’s land, into a railroad, is to impose an additional burden upon the land and greatly to impair its value. As no compensation has, in this case, been made to the owner, his consent must in some way be shown. The argument is that, as he has consented to the laying out of a highway upon his land, ergo, he has consented to the building of a railroad upon it; although one of these benefits his land, renders access to it easy, and enhances its price, while the -other makes access to it both difficult and dangerous, and renders it comparatively valueless. Were the transactions between two individuals every one would see at once the injustice of the conclusion attempted to be drawn. It is the public interest supposed to be involved which begets the difficulty, and it is just for this reason that the Constitution interferes for the protection of individual rights, and provides that private property shall not be taken for public use without compensation, a provision no less necessary than just, and one which it is the duty of the courts to see honestly and fairly enforced.
    “ The case stated by the learned justice, who delivered a dissenting •opinion in the Supreme Court, is a striking illustration of the injustice that would frequently be done under the rule contended for by the defendants. A street was laid out through a man’s land, and he was assessed several hundred dollars for benefits in addition .to the land taken; and before the street was opened it was taken by a railroad company and converted into the track of their road. The owner lost his land, had to pay several hundred dollars, and had the annoyance of the railroad besides, while the railroad company got the road for nothing.
    “ The case of Inhabitants of Springfield v. Connecticut River Railroad Compamy (4 Cush., 63) shows what the Supreme Court of Massachusetts thought of the argument that the uses are the same. It was insisted there, on the part of the defendants, that the-power conferred upon them by the legislature, to build their road between certain termini, gave them by necessary implication the right to build their track upon any intervening highway. But Chief Justice Shaw, in reply to this argument, says: “ The two uses are almost, if not wholly, inconsistent with each other, so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated. The whole course of legislation, on the subject of railroads, is opposed to such a construction.”
    “ I concur with the learned chief justice, and have no hesitation in coming to the conclusion that the dedication of land to the use-of the public as a highway is not a dedication of it to the use of a railroad company; that the two uses are essentially different, and that, consequently, a railway cannot be built upon a highway without compensation to the owners of the fee. The legislative provisions on the subject were probably intended, as was intimated in The Presbyterian Society of Waterloo v. Auburn and Rochester Railroad Company (supra), to confer the right, so far only as the public easement is concerned, leaving the companies to deal with the private.rights of individuals in the ordinary mode. If, however, more was intended, the provisions are clearly in conflict with the Constitution, and cannot be sustained.”
    In the case of Mahon v. The New Work Central Railroad Company (24 N. Y., 658), the following facts appear: The Utica and Schenectady Railroad Company, to whose rights and liabilities the defendants succeeded, had, in 1836, in pursuance of an act of the legislature requiring it to do so, purchased all the rights of the Mohawk Turnpike Company, which was incorporated April 4,1800. The plaintiff brought this action for damages against the defendant for depriving him of the use of the highway, and for the construction and operation of the railroad upon the land extending to the middle of the highway, without purchasing the land or causing plaintiff’s damages to be assessed. Clerke, J., in the opinion of the court, at page 660, says:

      “ The rule that owners of land bounded on public highways, prima fade, own the land to the center of the highway, is not alone applicable to ordinary highways, but also to turnpikes (Hooker v. The Utica and Minden Turnpike Co., 12 Wend., 371); and although the general act relating to turnpike companies, passed March 13, 1807, declares when the president and directors pay the •owners of the lands the sums assessed and awarded by the appraisers in their inquisition, they shall have and hold to them and their successors and assigns forever, the lands and tenements described in their inquisition; yet it has been always held that this and the special act of incorporation vests in the company the title to the lands over which the road passes only for the purposes of the road, and when the road is abandoned, the land reverts to the original owners. The company only acquired such an estate in the. land taken by it as was necessary to fulfill the end and intent of the cor poration, and could hold it to no other use, intent or purpose. Having ceased to occupy the land for the purpose of a turnpike road, the Mohawk Turnpike Company, in transferring it, in effect abandoned it; and although they were authorized by the legislature to transfer to the Utica and Schenectady Railroad Company, this could not, constitutionally, deprive the original owners of the land of their right of reversion” without compensation. (Davis v. Mayor, etc., of New York, 14 N. Y., 526; Williams v. N. Y. Central R. R. Co., 16 id., 97.)

      “ An easement for the purpose of a highway does not authorize, as against the proprietor of the soil, the laying down of a railroad upon the track of the highway. The use of the land for a railroad is totally different from that public right of passage for which highways were designed.”
    The case of Wager v. Troy Union Railroad Company (25 N. Y., 526) reiterates the doctrine decided in the cases above alluded to. This was an action of trespass by an owner of lands, in the city of Troy, against the defendant, for constructing a railroad in the street in front of his lands without his consent and without compensation to him, although with the assent of the city corporation. It was held that the action could be maintained and that there was no distinction in this respect between the street of a city and a highway in the county. (Quoting Bissell v. N. Y. Central R. R. Co., 23 N. Y., 61.) All the above cases are approved, and the principle contained therein is extended, so as to be made applicable to horse railroads, in Craig v. Rochester City and Brighton Railroad Company (39 N. Y., 404). This case was one in which the owner of a lot in the city of Rochester, on East avenue, extending to the. center of the street, obtained a perpetual injunction to restrain the defendant from laying a horse railroad track in the public street in front of his lot, without his consent, and without taking legal proceedings to acquire it. The Court of Appeals sustained the injunction. Five out of the six judges who sat in the Court of Appeals in the Mahon case (supra), agreed that the appropriation of the land of a turnpike company, which was an appropriation in fee, did not authorize its use for a railroad. (See 24 N. Y., page 661.) The only conclusion to be drawn from these cases is that the claimants, whose deeds carry them to the middle of old Laurens street, are to be compensated as for a fresh taking of the lands in the easterly and central sections of South Fifth avenue.
    II. It remains to consider what title was left in the claimants, as original owners, whose lots abut on the westerly section, after the taking by the city from them of the fee of that section, under the act of 1813, in the proceedings for the widening of Laurens street. This question, as applicable to this case, is open and new. In the Matter of Gilbert Elevated Railway Company (70 N. Y., 361, at page 375), Church, O. J., in delivering the opinion of the court, that the rapid transit acts provided for compensation for any property rights the abutting owners may hare in the streets, and that the act was constitutional, says:

      “ The amount or extent of the damages are questions not properly before the court. * * * To determine what particular occupation of the streets is to be deemed a legitimate public use, involves important and delicate questions. They were very much debated in this court in the surface railroad cases and the principles adjudicated in those cases will be regarded as obligatory upon the court in deciding future cases. Whether the structure contemplated to be built and operated will be an invasion of the property of abutting owners in any of the streets, entitling them to some remedy for damages, or whether it will be regarded as a legitimate use of the streets for the benefit of the public, the inconvenience and annoyance of which private abutting ownership is subject to, cannot, with propriety, be adjudicated upon these appeals.”
    The act of 1813, under which the city took title to the westerly section, is that the corporation of the city shall be seized in fee of the lands, and may take possession of the same. In trust, nevertheless, that the same be appropriated and kept open for or as part of a public street in like manner as the other public streets in said city are and of right ought to be. (2 R. L., 1813, p. 414, chap. 86, § 178.)
    The commissioners are of opinion that when the city took the fee to the westerly section of South Fifth avenue, in trust, to keep the same open as a public street, there was left in the original owner an estate or interest exactly the same in quality that the Court of Appeals decided that he retained after the turnpike company took the fee in the bed of its road.
    The fee taken by the turnpike company was not, in terms, qualified or restricted, or limited or conditioned, in any way whatever. The act was “ that the said president and directors aforesaid, upon paying the said several owners of the said lands the several sums so-assessed, * * * gfiall and may have and hold to them and their successors and assigns forever the lands * * * described.” (Laws 1807, chap. 38 [ed. of Barber], p. 108.) The city takes the fee in terms, but only for one specified purpose, viz., in trust to keep the-land open as a public street. The fee is not an absolute, unqualified unconditional fee. The city cannot sell or convey it, or incumber it in any way or consent that it shall be incumbered. It cannot build upon it, or permit others to do so. The land could not be sold for the debts of the city, for its estate is only a trust estate. The-act provides what the city can do with the fee, and that is to keep it open as a public street, and that is all the city can do with it and is all the right the public has taken away from the original owner. The-whole duty, power and trust of the city, in the fee, is to keep it. open, the fee being taken because the city can thereby better perform its duty and its trust in that regard than if any other quality of estate were taken.
    The petitioners rely upon the* case of The People v. Kerr (27 N. Y., 188), as an authority to show that abutting property owners have no right or estates in the streets left in them after the city has-acquired title to tlie land in the street under the act of 1813. That was an action by owners of lots on Seventh avenue and Broadway to restrain a horse railroad company from laying tracks in the street in front of the lot owners. It was found, as a fact (p. 210), that all the lands in the street had been taken and paid for by the city under the act of 1813. The complaint was dismissed, and the Court of Appeals affirmed the judgment. The following extract is quoted by the petitioners to sustain their views (Wright, J., pp.210, 211):
    “It is found, as a fact, and conceded, that under this act of 1813 all the lands in the several streets on which the plaintiffs areabutting landowners, were either taken for streets, under section 178 of that act, after compulsory appraisal, or ceded by the lot owners upon an agreed valuation pursuant to such section. * * * After sudh relinquishment and vesting of the fee in the city corporation, no property, estate or interest in the land included in the streets opened under the act, remained in the adjacent proprietors.”
    “ Reporter’s Note.— Davis, J., did not sit in the case; all the other judges concurred substantially upon the grounds stated by Wright, J.” (P. 215.)
    We may here note that the learned judge, who wrote the opinion above quoted from, cited as the only authority for the doctrine enunciated the ease of Heyward v. The Mayor of New York (3 Seld., 314). In that case the city had taken lands of Mrs. Ann Rogers for an alms-house in the Ninth ward, under an act of the legislature (Laws 1818, chap. 244), in the same manner, etc., as by the Laws of 1816, chapter 53, the city was authorized to take lands for a public market.
    The act of 1816 thus referred to, and made part of the act of 1818, provided that the city, on payment, should become and be seized in fee simple absolute of the lands taken. The city having abandoned the use of these lands for alms-house purposes, sold them. The representatives of Mrs. Rogers brought this suit on the ground that the public use having ceased, the lands reverted to the original owners. The court held otherwise, on the ground that the fee was an absolute fee. In short, under both of these acts, the city took the land as proprietors and not in its political capacity. Such a case cannot be an authority for the dictwm in People v. Kerr, above quoted. Moreover, the whole of the reporter’s note in the People
      v. Kerr is as follows: “ Davies, J., did not sit in the case. All the other judges concurred, substantially, upon the grounds stated by Weight, J., without passing upon the distinction between the extent of the public right in city streets and country roads, and other questions discussed by Emott, J.
    “ Rosekeans, J., was of the opinion that the power of the legislature extended only to governing the mode of passing upon the surface streets, and that, subject to this, the city of. New York had all the rights of the original proprietor of the soil, and might be entitled to compensation for any privation thereof.
    “ Baloolm and Marvin, JJ., suggested that, independent of the public right in streets, whether acquired by dedication or confiscation, and of any naked fee which might remain in the original owner, with the possible ultimate right of reverter, there might be a private right in the owners adjoining the streets to have free • access to their premises held under the original proprietor of the tract embracing the street, of which such owner could not be deprived by the assent or surrender of the public, or of the general owner of the fee of the street, or both, without compensation for his individual interest in the street or easement. This, they said, to preclude the conclusion, if such were possible, that any such an interest could be supposed to have been disregarded. They saw no such question in this case, and were, therefore, for affirmance.
    “ Judgment affirmed.”
    Judge Emott further, in his opinion (p. 207), says that the use of a street by a steam railroad and a horse railroad is manifestly very different, and (on page 208) “I do not consider that the grant or the exercise of such a privilege (constructing a horse railroad) involves taking or imposing a new burden.”
    The commissioners, therefore, cannot consider the Kerr case as controlling the questions before them.
    Whether the city, as trustee, may be treated as a contractor with those of the public who have paid the assessments to enable it to acquire this fee in trust, and who have been specially damaged by a breach of the trust on which it is held, and the imposition of this new burden; or how far the city might insist that the rapid transit acts impair its obligation under such a contract may be interesting questions, but this commission has nothing to do with them.

      The commissioners are of the opinion that after the taking by the city there then remained in the abutting original owners a naked fee with the ultimate right of reverter in the westerly section of South Fifth avenue, and that this fee is of the same quality as the absolute fee which they have in the central section subject to the public easement, and of the same quality as the absolute fee of those of the claimants of the east side in the easterly section, and that its value is the same less the amount which the owners would have to pay to the city for vault purposes. It is only the present estate in fee of the claimants which is different. They have no present estate in fee in the westerly section; only one in expectancy. They have a present estate in fee in the easterly and central sections, and also one in expectancy.
    To illustrate: The claimants could not now dig vaults under the westerly section except by license from the city. They could now dig vaults under the central and easterly sections as in their own right, so long as they did not thereby interfere with the public easement and did not render the highway any less secure. Besides these estates in fee the claimants have as easements in the land in the street the right of light, air and access to their lots, which was guaranteed to them when the fee was. taken only in trust to keep it open as a street. Every lot owner bought with that statute before him. Every contract and deed for lots in this city is made relying on it. The taking contemplated is a new burden, and the right which the petitioners desire to acquire depreciates the value of the residue of the lands of the claimants and take from them their present rights of light and freedom of access.
    III. There is yet one other and different tenure of property by the claimants. That is where their deeds bound them “ along or by the side or line of the street,” and not “ by the street.” In accordance with an unbroken current of decisions, the lot owners in such cases have no title to the land in the street. Their title to land stops with the side of the street.-
    The point is here made by the petitioners that abutting lot owners having no title to the land in the street no land is taken from them; their land not being taken, they are not damaged, and no compensation is to be awarded. It is undoubtedly true that they have no title to the land itself in the street. The following quotations from the law on the subject have been made by the petitioners:
    “ In case any company formed under this act is unable to agree * * * it shall have the right to acquire title. * * * (R. S., vol. 2 [6th ed.], p. 523.) For the purpose of acquiring such title * * * may present a petition. * * * It must contain description of the real estate which the company seeks to acquire * * * that the land. * * * is required for the purpose of constructing or operating the proposed road. (Secs. 14, 15.) The commissioners shall * * * ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them. (Sec. 18, p. 525.) On such report being made, etc., the court shall thereupon * * * make an order, * * * containing a description of the real estate appraised, for which compensation is to be made. (Sec. 19, p. 526.) And thereupon, and on the payment * * * of the sums to be paid as compensation for the land * * the company shall be entitled to enter upon,” * * * etc. (Sec. 20, p. 526.) If there are adverse and conflicting claimants-to the money, or any part of it, to be paid as compensation for the real estate taken.” (Sec. 21, p. 526.)
    The provisions of this act must be construed, however, m conjunction with the clause of the Constitution under which it was framed, namely: “ Nor shall private property be taken for public use without just compensation.”
    Has not every lot owner a special private right of property in the light, air and access afforded him by an open street ? We think he has, without reference to whether he has a title to the land in the street or not.
    If he has not, and the arguments of the petitioner’s learned counsel be correct, the legislature may, without compensation to the lot owner, empower the petitioners to build solid masonry walls within six inches of the lot owner’s front, and two, three or more stories in height, so long as the only use made of the structure is to carry the public. Or, it may empower some other private corporation to build some similar structure, from side to side of the street, for a market or some other purpose, by simply declaring it to be for the public use.

      We find, as matter of fact, that the light, air and access of the claimants’ lots are interfered with and taken, to an appreciable extent, by the petitioner’s acquisition of the lands in question, and, as matter of law, that these are private property rights, and, as easements, appurtenant to the lots fronting on the street, or otherwise, belonging to the abutting property owners, whether the lot owners have or have not title to the land itself in the street.
    Unless the general railroad act, under which the petitioners are to acquire title, be so construed that it shall include all private property rights in the term lands, the taking is in violation of the Constitution, and the act would fail, in that respect, to conform to the constitutional requirements.
    IY. This brings us to the question of damages. The estate in the land to be acquired by these proceedings is governed by section 5, chapter 885, Laws of 1872, paragraph 12 of petition, except that by the order of this court, of January 8, 1879, the estate, in parcels four and five, was limited to the right to use said parcels to construct, maintain and operate a railway constructed on the modified plan prescribed by the rapid transit commissioners. As to parcels other than four and five, the estate taken therein is such as may be necessary “ to make such structjires as shall secure stability and firmness to the elevated road ” (Act of 1872, § 4), and for “ stations, * * * platforms,” etc. (Sec. 3.) This, in case the present sub-structure should prove insufficient, would justify the petitioners in building on the land taken such substantial foundations or depots as might be necessary, and would be a very different burden from the limit fixed on four and five in the order, by consent of the parties.
    On this question of damages, almost all of the cases hold that the commissioners are not to consider any consequential or prospective damages, or damages which may result from the use to which the land is to be put. Almost all of them lay down the rule that the commissioners are to estimate, first, the fair market value of the whole parcel, and then the fair market value of the property not taken, and that the difference is the true amount of compensation to be awarded.
    The case of the Canandaigua and Niagara Falls Railroad Company v. Payne (16 Barb., 273), was one in which the commissioners had taken evidence as to consequential injury which a mill might sustain. The mill was not the parcel of the land taken by the railroad, but was separated from it by a highway. Harris, J\, at pages 275, 276, lays down the rules above alluded to and sets-aside the award.
    In the case of the Albany Railroad v. Lansing (16 Barb.) it appears, at page 69, that the commissioners adopted the rule to allow full compensation for the land taken, including therein the-damages to the adjacent land, by reason of such taking, but that they should not allow consequential and prospective damages. At page 70, Harris, J., says: “ The legislative intent is, I think, very successfully embodied in the rule adopted by the commissioners. * * * The were to consider how the taking of the land, but not the use of it in any particular mode, would affect the residue of the owner’s land.” At page 72 the court holds there is no error in this principle.
    In Albany and Susquehanna Railroad Company v. Dayton (10 Abb. [N. S.], 185) the court held the measure oi compensation to be: (1) The fair value of the land; and (2) a just compensation for the effect which the taking would have in depreciating the market value of what is left.
    In Matter of Union Village, etc., Railroad Company (53 Barb., 458), the court says: “ These decisions (above) have been too long acquiesced in as sound expositions of the law upon this question to be disturbed without substantial reasons therefor.” This case was one in which the commissioners refused to take into consideration increased danger from sparks to a ffax mill on lands of owner. Held, correct.

      In the Matter of the Prospect Park and Coney Island Railroad Company (13 Hun, 345), the following appears (p. 346): The railroad company desired to acquire an easement in a highway for railroad purposes, but not to extinguish the fee. The street was owned in fee by twenty-two different persons, subject to the perpetual easement of the public therein as a highway. The award of the commissioners was one dollar in each case, except three-cases. In one of these three, three dollars, and in the other two six cents were awarded. The land owners appealed. (P. 348.) The court set aside the report. (P. 347.) Gilbert, J., says : “ The taking of the land in the highway, for the use of the railroad, is a. fresh taking of the property of'the landowner, for which he is entitled to just compensation,” not to merely nominal damages.
    The next case quoted by petitioners is : In the Matter of One Hundred and Tenth Street (54 How. Pr., 313), where the Central Park Commissioners closed a portion of the Ploomingdale road, but retained that portion of it required for One Hundred and Tenth street as laid out, and assessed the compensation for the fee of that portion retained in One Hundred and Tenth street at a nominal sum. At page 315 it appears that this rule was prescribed by the legislature. (Laws of 1867, chap. 697.) The court affirmed the award.
    This case is in no respect parallel to the one under consideration. If the city were proceeding to take the fee under the act of 1813, in the easterly and central section of South Fifth avenue, the case might be an authority, although even in such a proceeding the value of the right to dig vaults would have to be allowed.
    The case of Bellinger v. New York Central Railroad Company (23 N. Y., 47, 48) is the next one referred to by petitioners. That was an action for damages from a freshet, alleged to have occurred by reason of the construction of a bridge by the defendant over low lands. The defendant sought to prove that the embankment and bridge were carefully and skillfully constructed, which evidence was excluded. Held, error, for which a new trial was granted.
    The last case on the petitioners’ brief is that of Patten v. New York Elevated Railroad Company (3 Abb. N. C., 343). The only point decided in that case was that Patten did not own any part of the street in front of his hotel, the deed to him bounding his lot “ on the westerly side of Greenwich street,” and that he did not own the vault or any right in it which the public author ities could not take away, his right being a mere license and therefore revocable; and that, therefore, he was not entitled to any compensation for the invasion of his vault by the railroad company.
    We now proceed to examine the cases referred to by the claimants on the question of damages. The following have been already considered, viz.: The Albany, etc., Railroad Company v. Lansing (16 Barb., 68); Matter of Union Village, etc., Railroad Company (53 Barb., 457); Canandaigua and Niagara Falls Railroad Company v. Payne (16 Barb., 273).

      The Matter of Poughkeepsie and Eastern Railroad Company (63 Barb., 151) is as follows : Palmer was the owner of an iron ore bed and a railroad, four or five miles long, from his mine to the Harlem railroad. The Poughkeepsie and Eastern railroad commenced proceedings to' condemn two and a-half miles of Palmer’s railroad at the end nearest the Harlem railroad. The commissioner awarded damages for those two and one-half miles as follows: (1) Value of land taken, including grading done; and (2) of the iron and ties laid down. They did not award anything for depreciation in value of what was left at the other end of Palmer’s four miles of railroad, or for depreciation in value of the mine, by cutting off Palmer’s facilities for transportation. Held, that commissioners should have allowed for such depreciation, and new commissioners were appointed and directed accordingly.
    In the case of the Troy and Boston Railroad Company v. Lee (13 Barb., 169), the court sent the 'proceedings back to enable the commissioners to review their decision as to the amount of damages. * * * If the report is the result of the free exercise of the judgment of the majority of the commissioners who signed the report, in reference to the market value of the property as it was before the railroad was constructed, and as it will be afterwards, it ought not to be disturbed. * * * The opinions of witnesses as to values are to be received as persuasive evidence, and never controlling. , The rule laid down in all the foregoing cases would seem to be uniform. The two next cases, it has been supposed, depart from this uniformity. In the Matter of the Utica, etc., Railroad Company (56 Barb., 456) it appears, at page 458, that the commissioners had awarded $100 for the value of the piece taken and the depreciation of the remainder of the property by the taking of that piece, but that nothing was allowed for the depreciation of the remainder, occasioned by the increased risk of fire from locomotives; nor for depreciation in its market value, occasioned by the use of the piece taken for a railroad; nor from the annoyance, noise, smoke, discomfort and inconvenience of having a railroad located and operated there. At page 466 it was held the report should be set aside and a new appraisal made, in which is to be included all the damages which the appellant will sustain to his premises by the construction and use of the railroad, and in duding compensation for the piece of the lot taken by the road. At page 464, increased risk from fire, and increased difficulty of access and inconvenience to the remainder, by reason of the railroad, and depreciation from noise, smoke, etc., are all directed to be included.
    The only remaining case, which is the latest to which we have been referred, is that of Matter of New York Central and Hudson River Railroad Company (7 Weekly Dig., 171; also reported Supreme Court Rep., N. V., 15 Iiun, 63). This was an appeal from the report of commissioners.
    One Judge, the appellant, was the owner of a lot on which a grocery and dwelling was erected on Broadway, in the city of Albany. The railroad company had for many years had two tracks on Broadway, in front of Judge’s lot. In 1874 the railroad company laid two additional tracks. All the land in question had been previously taken by the public for a street, and at each of the times when petitioner’s tracks were laid thereon was being used for that purpose.
    The commissioners rejected the following evidence offered by Judge: That one hundred and twenty trains passed over the new tracks up between 5 a. m. and 9 p. m., and a proportionate number between 9 p. m. and 5 a.m.; that the cars are heavily loaded and cause great and injurious jar to the walls of such building. That since the laying of the new track his building has been seriously injured by jarring caused by trains, so that the walls and partitions were shaken down and the stairway had to be rebuilt, and that repairs to the extent of one thousand dollars per year were made necessary; that the portion of his lot not taken was depreciated in value by the noise, smoke and increased danger caused by the trains on this new track.
    The court, after citing a great many cases, holds that this evidence should have been received. On page 68, the rule laid down (20 N. Y. S. O. R. [13 Hun], 345) in the opinion of Gilbert, J., is quoted with ■approval, namely: “ The true inquiry is, what was the whole property, from which the railroad was severed, fairly worth in the market before the taking, and what was its value with the railroad npon the land taken ? ”
    It will be observed that these two last cases relate to city property taken by a railroad; that the principles of law recognized in the opinion are the same as stated in the other cases, and that it is only in the application of these principles that they possibly appear to differ. The commissioners, in making their award, have considered what the property was fairly worth before the taking by the railroad, and what the property left, after the taking, was fairly worth, and have awarded the difference as compensation for the taking.
    The properties to be appraised are of the following kinds :
    On the Easterly Side.
    I. A fee in the abutting lot owner in the easterly twenty-five feet of South Fifth avenue, subject only to the easement of the public therein as a street. As an incident of this fee, the right to have no new burden cast upon the land without his consent or compensation. Apart from the fee and this incident a special, private-property right that the air, light and access afforded by an open public street shall not be taken without his consent or compensation. The lot owner in this case has the right to dig vaults - without the payment to the city for a license. Compensation in this case is to be made to the lot owner for the fee and for the air, light and access.
    II. No title whatever in the land in the abutting lot owner. The fee, in this case, being in some prior unknown lot owner, who conveyed the lot bounding it by the easterly “ line ” or “ side ” of Laurens street, to whom compensation is to be made for his title, which is subject to the public easement for street purposes. The. lot owner, in this case, having only a special private property right that the air, light and access afforded by an open public street shall not be taken without his consent or compensation. The lot owner, in this case, could not dig a vault against the will of the owner of the fee, even with a license from the city. The compensation to the lot owner, in this case, is for air, light and access. The compensation for the fee is to the unknown owner.
    On the Westerly Side.
    The several lot owners on this side of the South Fifth avenue have the same kind of properties in the central twenty-five feet of the avenue, as above stated at I and II, in regard to the easterly twenty-five feet.
    III. A fee in the abutting lot owner in the westerly twenty-five feet, subject only to the fee in the city, in trust to keep the land open as a street. As an incident of this fee of the lot owner is the right to have no new burden cast upon the land without his consent or compensation. Apart from the fee and this incident, a special private property right, that the air, light and access afforded by an • open public street, shall not be taken without his consent or compensation. The lot owner here has to be compensated, for his fee and the air, light and access.
    IV. No title whatever in the land in the abutting lot owner. The fee, subject to the title acquired by the city in 1870, being in some unknown owner, who, since 1870, has conveyed his lot, bounding it by the westerly “line” or “side” of South Fifth avenue. The abutting lot owner in this case, having only a special private property right that the air, light and access afforded by an open public street, shall not be taken without his consent or compensation. The only compensation in this ease, if for the air, light and access, to be made to the abutting owner. Any compensation for the fee remaining in the former unknown owner, subject to the city’s title, is to be made to him.
    New York, Ma/rch 31.
    JOHN ‘H. SHERWOOD
    EDWARD MITOHELL.

      Charles W. Wetmore, for the petitioner.

      John E. Parsons, for Amos F. and Amos R. Eno, owners.
   Brady, J.:

In the opinion delivered by two of the commissioners, the various questions, which were suggested during the investigation, are elaborately considered, and there seems to be no reason, since the decision of the case of Story v. New York Elevated Railroad Company (90 N. Y., 122), for disturbing any of the conclusions at which they arrived, except one. The rule of damages adopted is sustained by the cases cited, and as the commissioners are not controlled in their estimates by strict judicial rules, and may act upon personal examination and inspection of the subject-matter of the controversy, a palpable violation of established rules should be shown to justify the interference of this court. And this view embraces and disposes of the contention that the commissioners failed to allow for the improvements made upon the property. It is to be assumed that they did so in declaring the damages sustained. The adjudication referred to, in effect, declares that the abutting owners, on the westerly side of the avenue, are entitled to protection and compensation, notwithstanding the change made in the width of the street. It is only where the title is acquired in fee simple absolute that the property may be converted to other public uses, or the particular use ceasing, may be sold and converted to private uses. The city, by the proceedings in wwitum, under the act of 1813, secured a fee in the additional strip, in trust, however, for a particular public use. The act of 1813 proceeds upon the assumption that the opening of a' street makes the property abutting thereon available for the purposes of trade and commerce, and greatly enhances its value; and the damages sustained, by reason of the taking, are assessed, in view of the trust assumed by the public that such lands are to be open as public streets forever. The public do not assume to take the lands in fee simple absolute, but take and pay for a lesser estate. The owner parts with no rights, save such as are necessary to secure the land for street purposes. (Per Danforth and Tract, JJ.)

These views equally apply to widening a street when the additional space is acquired by coudeinnation under the act of 1813. The abutting owner has the benefit of the change, and the taking of the new strip or boundary of it does not create a substitute for the former one, does not destroy his rights in it, they remain intact notwithstanding the change in locality of the original strip or front occasioned by the widening. The strip remains a part of the street with the reserved rights incidental thereto, no other than a lesser ■estate in it having been acquired by the city. The commissioners were quite right, therefore, in awarding compensation for the -damage to land on the westerly side.

It is thought, however, that the commissioners were in error in •supposing that the appellants ,Eno were not entitled to all the awards. It is true there may be authorities which will sustain the proposition that by the terms of the grants affecting these awards the grantees acquired no title to the bed of the street, but, as said in the case mentioned,,there is no evidence that the grantors did not intend to convey their entire estate or to except the title conveyed from the operation of the general rule that a lot bounded on a street •extends to its center. This view is regarded as the latest exposition of tbe rule governing kindred cases, and is a just one. There should be in each conveyance, where the subject is bounded by a street, some reservation of an interest in the bed of the street by appropriate phrase, covenant or particularity of description which leaves no doubt of the intention. There can be little serious question that in a great majority of cases, in which grants are made of property bounded on a street, no thought is entertained of preserving any further interest in the plot transferred. The conveyancer may indulge in this fancy, but the grantor rarely.

This appeal has been examined many times and always with the result foreshadowed by this opinion, namely, that the report of the commissioners should in all respects be confirmed except as to the awards directed to be deposited, and as to these it should be modified by directing the awards to be paid to the Eno claimants, and it is ordered accordingly. No costs allowed to either party of this appeal.

Daniels, J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Proceedings modified as directed in opinion, and affirmed as modi fied, without costs of appeal to either party.


author: Davis, P. J.:

text:
    HERBERT BOOTH KING, Appellant, v. WILLIAM F. DUNCAN, Respondent.

      Manufacturing corporation — liability of its stockholders under section 10 of chapter 40 of 1848.
    Section 10, chapter 40 of 1848 provides that “ all the stockholders of every company, incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been made and recorded, as prescribed in the following section; and the capital stock so fixed and limited shall all be paid in, one-half thereof within one year, and the other half thereof within two years from the incorporation of said company, or such corporation shall be dissolved.”

      Meld, that a creditor who had recovered a judgment against a corporation, and had issued an execution thereon which had heen returned unsatisfied, was not required to wait until the period prescribed by the statute, within which the capital stock should be paid in full, had expired, before bringing an action to enforce the individual liability of its stockholders.

      Phillips v. Therasson (11 Hun, 141) distinguished.
    Appeal from a judgment, entered upon the dismissal of the -complaint by the court, at the New York circuit.

      N. A. Halbert, for the appellant.
    ■ E. F. O'Dwyer, for the respondent.
   Davis, P. J.:

The defendant was sued in this action as a stockholder of a corporation called the Manhattan Anti-Sewer Gas Company, organized •under the provisions of the act of 1818, authorizing the formation ■of companies for manufacturing purposes. (Laws of 1818, chap. 10.) The company became indebted to the plaintiff, and an action was brought against it for the recovery of the indebtedness, judgment recovered and after the return of an execution unsatisfied, this suit was brought against the defendant, as a stockholder. The articles of incorporation were filed in the office of the clerk of the city and county of New York, on the 20th day of April, 1883. They state that the ■capital stock of said company is $600,000, divided into 30,000 shares of twenty dollars each. The complaint avers that the capital stock had not been paid in. The tenth section of the act of 1818 •enacts as follows:

See. 10. All the stockholders of every company incorporated under this act shall be severally individually liable to the creditors •of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock, fixed and limited by such company, shall have been paid in, and a certificate thereof shall have been made and recorded, as prescribed in the following section; and the capital stock, so fixed and limited, shall all be paid in, one-half thereof within one year, and the other half thereof within two years from the incorporation of said company, or such corporation shall be dissolved.”

The defendant was a stockholder of the corporation to the amount of $20,000. The proceedings on the trial are stated in the ease as follows: “After the jury had been impanneled and sworn, and before the case had been opened to the jury, and before any evidence had been introduced, defendant’s counsel moved, upon the pleadings herein, to dismiss plaintiff’s complaint, on the ground that it appeared upon the face thereof that the two years had not expired since the formation of the company, and the commencement of this action, during which the capital stock of said company was required to be paid, as provided by section 10 of the act of 1848, for the formation of corporations, under which said company was organized. After hearing the plaintiff’s counsel in opposition, the court granted the motion and dismissed plaintiff’s complaint, with an allowance to defendant of five per cent, to which decision and ruling of the court plaintiff’s counsel duly excepted.”

This appeal presents, therefore, the simple question whether or not the creditor of such a corporation, after recovering a judgment against a corporation, and after the return of an execution unsatisfied, must wait until the expiration of two years after the formation of such corporation before he can bring an action against its stockholders. This question would seem to be answered by the very plain language of the statute, which declares that such stockholders shall be severally and individually liable for all debts and contracts made by such company until the whole amount of capital stock fixed and limited by such company shall have been paid in and a certificate thereof made and recorded. This liability attaches at once upon the incurring of the debt by the company unless the whole amount of the capital stock shall then have been paid in, and it continues to attach to all the debts so incurred until the capital shall be paid in; and it is not at all affected, in our judgment, by the additional provision of the act which requires, under penalty of a dissolution of the corporation, that the capital stock shall be all paid in, one-half within one year, and the other half within two years from the incorporation of the company. The liability is, however, qualified by section 24 of the same act, which provides that a stockholder shall not be liable for the payment of any debt contracted by the company which is not to be paid within one year from the time the debt is contracted, and qualifies the remedy upon such a debt by requiring the bringing of a suit against the company within one year after the debt shall have become due, and prescribes the time within which a suit shall be brought against a retiring stockholder, and requires the return of an execution against the company unsatisfied in whole or in part. Subject to these statutory limitations and qualifications, the liability of a stockholder, before the capital shall have been paid in, stands upon a similar 'footing to that of partners in any company or association not incorporated. This has been adjudged in many cases. (Allen v. Sewall, 2 Wend., 327; Moss v. Oakley, 2 Hill, 265; Corning v. McCullough, 1 Comst., 47; Harger v. McCullough, 2 Denio, 119; Angel & Ames on Corp. [9th ed.], § 624; McKinney v. Phillips, 24 Barb., 87.)

It is supposed by the counsel for the respondent that in Phillips v. Therasson (11 Hun, 141), this court had given a contrary construction to the statute. The supposition is erroneous. The question there disposed of was, when the statute of limitations began to run in favor of a continuing stockholder; and the question whether an action could or could not be brought before the expiration of two years within which the stock must be fully paid in or the charter forfeited was not presented for consideration, although some of the language of the opinion, in discussing the particular facts of that case, may perhaps be so understood. In that case the action was commenced more than seven years from the time limited for the payment of the capital stock and more than nine years after the formation of the company.

We have no doubt that the court below erred in its determination of the question presented in this case.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Beady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    MARGARETHA FINNERN, as Executrix, and LORENZ LANG, as Executor, etc., of PETER EMRATH, Deceased, Appellants, v. JULIUS HINZ and ELIZABETH HINZ, Respondents.

      Ufoidence — declarations or admissions of one executor are not admissible as against Ms co-exeeutor.

    In this action, brought to foreclose a mortgage, the defenses were payment and a counter-claim for work, labor and services rendered by the defendant for the mortgagee, the plaintiffs’ testator, amounting to $2,200.31 in excess of the amount of the mortgage. Upon the trial the defendant was allowed, against the plaintiffs’ objection and exception, to introduce in evidence, to establish his counter-claim, a paper entitled in the action, containing a bill of particulars amounting to $5,702.31, and crediting the mortgage at $3,500, leaving a balance of $2,202.31, at the end of which was the following admission, subscribed by one of the plaintiffs, as executor : “I hereby recognize the above claim, as hereinabove set forth, as valid and just, and consent that the mortgage given by the said Hinz (the defendant), and the bond accompanying the same, be deemed paid.”

      Meld, that it was error to admit this evidence, as it was the mere declaration or admission of one of the executors, and as such, was not admissible as against his co-executor.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action at a Special Term.

      C. MiehUng, for the appellants.

      Lewis Scmders, for the respondents.
   Davis, P. J.:

The execution of the mortgage, sought to be foreclosed in this action, was admitted by the answer. The answer alleges payment of the mortgage, and also sets up as a separate defense by way of counter-claim that the plaintiffs’ decedent, Peter Emrath, was justly and truly indebted to the defendant Julius Hinz for work, labor and services, and board and lodging furnished, and for money paid, laid out and expended at his request, in a sum beyond the amount of the mortgage, and demands judgment that the bond and mortgage be canceled and satisfied, and that the defendant Hinz recover judgment, in his favor, against the plaintiffs for the sum of $2,200.31. At the trial the plaintiffs produced their bond and mortgage, which were admitted, and the executrix testified that no interest on the mortgage had been paid to her. Evidence was then given tending to establish the alleged counter-claim, and, amongst other things, a paper entitled in this action, including the bill of particulars served therein, the total of which was $5,702.31, and crediting the amount of the mortgage at $3,500 and striking a balance of $2,202.31, at the end of which was an admission subscribed by Lorenz Lang, one of the plaintiffs, as executor, in these words:

“ I hereby recognize the above claim, as hereinabove set forth, as valid and just, and consent that the mortgage given by the said Hinz, and the bond accompanying the same, be deemed paid.

“LORENZ LANG, Executor.”

The admission of this document as evidence was objected to by the plaintiff. The objection was overruled and an exception taken. ~We think it was error to admit this document in evidence. It was the mere declaration or admission of one of the executors as such.

In Elwood v. Diefendorf (5 Barb., 407) the rule is stated in these terms : It is now well settled that the admissions of an executor or administrator cannot be received in evidence either as against In's co-executors or co-administrators, or as against heirs and devisees.”

In Bailey v. Spofford (14 Hun, 86) this court held that one of several co-executors has no power to charge either the estate or his co-executors, by indorsing a note in the name of the estate, even though it be given in renewal of one indorsed by the testator in his lifetime.

In Bloodgood v. Bruen (8 N. Y., 362) the Court of Appeals held that one who is a surviving partner, and also an executor of his deceased partner, cannot, in either relation, by a new promise, revive against the deceased partner’s estate a debt of the partnership. In Church v. Howard (79 N. Y., 415) the rule is stated by Miller, J., as follows: “ It is held in the decisions of the courts in this State that the declarations of an administrator or executor cannot be received as evidence as against either his co-executor or co-administrator or as against the heirs or devisees. (Hammon v. Huntley, 4 Cow., 493; McIntyre v. Morris, 14 Wend., 90-97; Cayuga County Bank y. Bennett, 5 Hill, 236; Lane v. Doty, 4 Barb., 530; Elwood v. Diefendorf, 5 id., 398.) ” The question in that case was whether the admissions of a sole executor were evidence to bind him in his fiduciary capacity, and it was held that the declarations of a sole executor, made when not acting in the discharge of his duties, to third persons having no interest in or connection with a claim belonging to the estate, are not evidence in an action brought by him in his representative capacity upon such claim. We do not understand that the rule has been changed or modified. The admission of the declaration, therefore, of Lorenz Lang, the executor, by which the counter-claim was admitted as a just claim against the estate was not competent. The objection, though general was sufficient because no particular specification could be made in the objection that would enable the party offering the testimony to make it admissible by proof of any other fact or circumstance. For this error there must be a new trial.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Bbady and Daniels, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.