In re Mayor

Hie appellants, the owners of a lot of land upon a street known as Monroe or Morris avenue, which for many years has been open as a public street, applied to the court by a petition under section 14 of chapter 1006 of the Laws of 1895, asking that the commissioners of appraisal and estimate appointed in this proceeding be directed to estimate and determine the compensation which shall justly be made to them for loss or damage sustained by the discontinuance or closing of the said Morris avenue, upon which the appellants’ property abuts. It appeared in this proceeding that Morris avenue, upon which the appellants’ land a'butted, has been for many years a public street, and used as such, but that the street had not been opened under any proceeding instituted by the city of New fork; that by chapter 545 of the Laws of 1890 provision was made for making and filing the maps and plans of the streets and avenues in the Twenty-Third and Twenty-Fourth wards of the city of New *608York; and the commissioner of street improvement for the said wards was directed, within a time named, to complete the survey, .maps, plans, and profiles of all the streets, roads, avenues, public . squares, and places located and laid out, or thereafter to be located and laid out, in said territory, and that said maps and plans, upon being approved by the board of street opening of the city, and filed as provided for by the act, should be final and conclusive as to the location, width, grades, and class of streets, roads, avenues, public squares, find places exhibited on such maps, plans, and profiles. In pursuance of that act, maps and plans for the permanent location of the streets and avenues in the Twenty-Third and Twenty-Fourth wards were finally adopted on June 17, 1895, and filed December 17, ,1895. By those maps a new street called “Morris Avenue” was laid ■out, but the old Morris avenue, the street or road upon which the petitioners’ property abutted, was indicated upon such map as a street •discontinued. Prior to the filing of. this map, and on June 12, 1895) -chapter 1006 of the Laws of that year became a law. By section 1 it -was provided that:

“In each city containing according to the latest census a population of more •than one million two hundred and fifty thousand inhabitants the local authorities may authorize in the manner hereinafter provided the discontinuance of •such streets, avenues, roads, highways, alleys, lanes and thoroughfares therein .as they may deem to be necessary in order to more effectually secure and preserve regularity and uniformity in the general and permanent plan of streets -and avenues and public places therein.”

By section 2 it was provided that:

“The local authorities authorized by law to lay out, open, extend, or improve -streets, avenues and roads in any such city or district thereof and to make' and .file a map or plan showing the streets, avenues and roads so laid out, opened, .altered, extended or improved, shall upon any map or plan so made and filed by them, designate only the streets, avenues and roads which they may determine to so lay out, open, alter, extend or otherwise improve as the permanent ■streets, avenues and roads in and for such city, or for the particular district or section thereof shown upon such map or plan, omitting therefrom all such former streets, avenues, roads, highways, alleys, lanes and thoroughfares which they may determine to discontinue or close. * * * Upon and after the filing of such map the streets, avenues and roads shown thereon shall be the only lawful streets, avenues and roads in that section of such city shown upon stich map or plan, and all other former streets, avenues, roads, highways, alleys, ..lanes and thoroughfares theretofore laid out, dedicated or established not shown thereon, and which are not then actually open or in public use, shall from and after the filing of such map or plan cease to be or remain, for any purpose whatever a street, avenue, highway, road, alley, lane or thoroughfare, and the owner or owners of the fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same .had not been laid out, dedicated, established or used.”

The question to be determined on this appeal is whether the filing • by .the municipal authorities of the city of New York of the map or plan of the Twenty-Third and Twenty-Fourth wards under chapter 545 of the Laws of 1890, 'before referred to, did, under section 2 of • chapter 1006 of the Acts of 1895, discontinue the street shown on the map as the old Morris avenue; and I think that the filing of the map did, as a fact, operate to discontinue the existing street under this provision. Section 1 of the act gives the municipal authorities of the -cities mentioned therein the power to discontinue public streets or *609thoroughfares in the manner thereafter indicated. Section 2 then provides that the local authorities authorized by law to lay out, open, extend, alter, or improve streets, avenues, or roads in any city or district, and to make or file a map or plan showing such streets, avenues, and roads so laid out, shall, upon any map or plan so made (that is, upon a map or plan not made under the authority of section 1, but under authority conferred upon them by other provisions of law), designate only the streets, avenues, or roads which they may determine to lay out, open, or improve as permanent streets or avenues in and for such city, or a particular section and district thereof; and when the local authorities, under existing provisions of law, made and filed a permanent map, showing the permanent roads or streets for a city, or a particular district therein, they were directed to show upon such map or plan only the streets or avenues which should be the permanent streets and avenues. The statute then provides that upon and after the filing of such map the streets, avenues, and roads shown thereon shall be the only lawful streets, avenues, or roads in that section of the city to which such map or plan relates; and all other former streets, avenues, or roads shall, from and after the filing of such map or plan, cease to be or remain for any purpose whatever a street, avenue, or road. It would seem to be the clear intention of the legislature to provide that, when the permanent plan of a city is finally adopted by the municipal authorities, all streets or roads not shotra upon the plan as permanent streets or avenues should be discontinued as public streets; and thus when the local authorities, under -the power granted by chapter 545 of the Laws of 1890, filed their plan or map of the Twenty-Third and Twenty-Fourth wards of the city of New York, locating upon that plan or map certain permanent streets and avenues, all such streets and avenues not therein designated as permanent streets or avenues by operation of this section became discontinued as public streets and avenues. This construction gives effect to both of the acts, and would seem to be necessary for the proper development of these outlying districts of the city of New York. It was essential that this Morris avenue, as it existed before the making of this permanent plan, should be discontinued, as it was inconsistent with the plan of the streets and avenues in that locality as finally adopted, and there can be no reason why it should be continued.

We also think that merely tracing upon this map the location of the old streets, and marking them as streets discontinued, was a substantial compliance with the statute which directed the municipal authorities to designate only the streets, avenues, and roads which they might determine to so lay out or improve as the permanent streets and avenues of that portion of the city. The fact that there appeared upon this plan the permanent streets, and also the lines of existing streets, to show their relation to the new streets, plainly indicating that such old streets were to be discontinued, and therefore to be no longer used by the public as permanent streets or highways, did not affect the operation of the provisions of law closing those streets not designated upon the plan as permanent streets of the city. The plain intention of the legislature, by this enactment, was, we *610think, to allow a permanent plan to be made, upon which should be indicated the permanent streets or avenues of the city. This the plan did, and it was those streets not thus désignated on the map as the permanent city avenues and streets that were to be discontinued as such streets. We think, therefore, that the filing of the plan by the municipal authorities discontinued this old Morris avenue, upon which the plaintiffs’ property abuts, as a public street, and that the owners of the property abutting on the street were entitled, under the act of 1895, to compensation from the city for all injuries that they sustained in consequence of a discontinuance of this avenue or street as a public street. Section 3 of the act of 1895 applied only to proceedings to discontinue a street or avenue laid out upon the permanent plan adopted as such, and as this old Morris avenue was never indicated upon such permanent plan the provisions of this section did not apply. When the municipal authorities commenced this proceeding to open Morris avenue, as laid out upon the permanent map or plan of this portion of the city before referred to, as a permanent street to be opened, the owners of property abutting on the closed street were entitled, under section 14 of the act of 1895, to have the commissioners of estimate and assessment ascertain and determine the compensation which should justly be made for any loss or damage to the property occasioned by the discontinuance or closing of the old Morris avenue upon which their property abutted.

The court below denied the application upon the ground that the filing of the map and plan of this portion of the city under the Laws of 1890 did not have the effect of closing the streets, under section 2 of the act of 1895, and that the petitioners’ easement of light, air, and access in the old street was not affected by that closing of the street. It is not necessary to determine upon this application whether the appellants are entitled to damages for the interference with their private easement in this discontinued street. It is for the commissioners to ascertain the damage that they have sustained in consequence of the discontinuance of Morris avenue as a public street or highway, and their determination of that question is subject to review. The legislature intended that the appellants should be compensated for the damage that they should sustain by and in consequence of the discontinuance or closing of this street or avenue, and it is this damage that the appellants were entitled to have estimated and determined by the commissioners in this proceeding.

We think the order appealed from should be reversed, with $10-costs and disbursements, and the motion granted, with $10 costs. •

RUMSEY, PATTERSON, and HATCH, JJ., concur. VAN BRUNT, P. J., dissents, for reasons stated in opinion of court below.

I concur in the viéws expressed by Mr. Justice IN-GRAHAM in his opinion herein, and I am also of the opinion that his construction of the acts in question has received the sanction both of this court and of the court of appeals. In re Mayor, etc., of city of New York, 28 App. Div. 143, 52 N. Y. Supp. 588, affirmed in 157 N. Y. 409, 52 N. E. 1126. The record in that case which was before *611this court on the appeal discloses that the map then in question delated to Gerard avenue, between 168th street and 169th street, as laid down on section 9 of the final pans of the 23d and 24th wards, filed November 2d, 1895. In construing chapter 1006 of the Laws of 1895, as to the effect of the filing of the map, Mr. Justice Patterson, writing the opinion of the court, says (page 146, 28 App. Div., and page 589, 52 N. Y. Supp.):

“That much of Gerard avenue became closed by the filing of the map, and thus the respondents’ easements of light, air, and access to their Gerard avenue frontage were, in legal effect, taken away.”

An appeal from this decision was permitted, and certain questions were certified for review, the first of which was as follows:

“First. Was the effect of chapter 1006 of the Laws of 1895, taken in connection with the action taken by the commissioner of street improvements of the Twenty-Third and Twenty-Fourth wards of the city of New York, and the board of street opening and improvement of said city, to discontinue and close that part of Gerard avenue, in the Twenty-Third ward of the city of New York, abutting on the respondents’ lands between One Hundred and Sixty-Eighth and One Hundred and Sixty-Ninth streets, * * * so as to extinguish the easements of the respondents therein.”

This question presents the identical subject now before us for determination, except as to the particular street. The map now before us is a part of the same final plans of the 23d and 24th wards, to wit:

“Extract from Section 14 of the Final Maps of the 23rd and 24th wards, adopted June 17, 1895. Filed December 17th, 1895.”

It is shown by the record in Be Mayor, etc., of City of New York, supra, that the section there in question was also adopted June 17, 1895, but was filed November 2,1895.

The court of appeals did not answer the question certified to it categorically, but said:

“We think that the provisions of chapter 1006 of the Laws of 1895 are within the constitutional powers of the legislature, and that the order in this case should be affirmed. * * * We have not thought it necessary to enter upon a discussion of this question, for the reason that the very able opinion written below, in which we fully concur, covers all the points involved.”

These cases definitely determine that the effect of the filing of the maps in question "was to close and discontinue the old street known as “Morris Avenue,” and to take away the appellants’ easements of light, air, and access therein and thereto as effectually as in the case of Gerard avenue.

I am of the opinion, also, that chapter 712 of the Laws of 1896, entitled “An act in relation to the final maps, plans and profiles of the Twenty-Third and Twenty-Fourth wards of the city of New York,” has the effect to remove any objection to the maps and plans in question which might have existed by reason of the failure of the authorities to follow technically and exactly the requirements of the statutes providing therefor, and ratified and confirmed the same in all respects. It includes in its provisions, in express terms, sections 1 to 28, inclusive, of the final maps and profiles of the 23d and 24th wards of the city of New York; and while the language of the act is confined to the opening, acquiring, laying out, and establishing streets, it, in terms, provides, that:

*612“Every provision of law in relation to the laying out and establishment of said streets, avenues, roads, public squares, parks and places, * * * and in relation to the making and filing of the final maps and profiles thereof, shall hereafter be deemed to have been complied ..with.”

As there is no limitation or restriction in the act applicable to this subject, and as its evident scope was the whole scheme embodied in the maps, plans, and profiles adopted for said wards, and filed for the purpose of perfecting and establishing the system of new streets and the discontinuance of old ones, it seems to me that it clearly removes any doubt as to the purpose and effect of the act.

RTJMSEY and INGRAHAM, JJ., concur.