In re Mayor

Counsel for respondents argues that the private easements over the parcels in question have been abandoned or lost by adverse possession. This contention may be well founded and would require serious consideration if the question were before us, but it is not presented. If the property owners had desired to present that question for review, they should have appealed from the order in so far as it limits the commissioners in revising their report to awarding substantial damages on the basis of existing private easements.

Counsel for the appellant contends that the learned justice who heard the motion at Special Term misapprehended the testimony of the city’s expert. The opinion indicates that the justice understood *460the testimony-of this expert to be that' the value of the fee, on the assumption that there was no public easement over the parcels, was. thirty-three and one-third cents per square foot. In this we think, he was' in error. The' fair construction of the testimony of- the, expert, taken as a whole, is that if there were outstanding private, easements in favor of the owners of any considerable number of, parcels, the value of the fee subject to such easements -would be, only nominal, substantially the same as if it were subject to public, easements. Although- the awards made by the commissioners are not very large, they are substantial, as distinguished from nominal awards. A nominal award would only have required an award of six cents for each parcel, but it seems to be the. practice, in the city - of' New York to award a dollar in such cases. The award as made, as has been seen, averages one dollar and twenty-five cents per lineal foot -along the avenue. The length along the avenue of the shortest of these parcels is fifty-six and two-ninths feet, and of the longest one hundred feet, so that the awards for these parcels vary from seventy dollars and thirty-eight cents to one hundred and twenty-five dollars. - It- cannot be maintained that these are nominal awards, nor can -it be said that they are. so inadequate as to justify the court it setting aside the report, of the commissioners.' The land in that locality is not very valuable. The city’s expert testified that, assuming the land to be free of all easements, public and private, it' was only worth thirty-three and one-third cents per square foot, which would be eight dollars and thirty-three cents per- lineal foot measured along the avenue. The award made by the commissioners-for these parcels, subject, as they deemed them, to many private easements,, is more than one-seventh of that amount. -. It is evident that the title of many of the other parcels is in substantially the same condition with reference to these private easements as those of the respondents. The commissioners, treated them all alike. The entire expense of .this proceeding is to be defrayed by local assessment. The other property owners having acquiesced in the awards; if the respondents should receive larger awards the result would be ■inequitable. This, of course, should not deprive them of any legal-right, but it should influence the court in exercising judicial discretion in a doubtful case. We are of opinion, therefore, that substan*461tial awards were made, and that the Special Term erred in referring the report back to the commissioners upon the theory that substantial awards had not been made.

As appears from the statement of facts, the only buildings upon parcels owned by the respondents are upon parcel 33. Assuming the existence of private easements, as must, be assumed upon this record in the absence of an appeal by the property owners, we are of the opinion that a substantial award should have been made for the buildings. As stated in the opinion delivered at Special Term, it does not appear but that these buildings were erected with the consent of the owners of the private easements. In any event, they have been suffered to remain, and no action appears to have been taken to interfere with their existence where constructed. The city is not in a position to insist that they should be moved. It seeks to take the land as it exists; and it must make just compensation for the buildings in view of whatever rights the owners may have to maintain them where they are. If this right be absolute, their value should .be awarded; but if the right be subject to the right of the owners of outstanding easements to require their removal, then the valuation should be ascertained in view of the probability or improbability of the exercise of such right.

It follows, therefore, that the order should be reversed in so far as it refers the report back to the commissioners to revise their awards for fee damages, and the report of the commissioners, in so far as it related to fee damages awarded to the respondents, should be confirmed, but in so far as the order refers the report back to the commissioners for the purpose of making a substantial award for the value of the buildings on parcel No. 33, it should be affirmed, without costs.

Patterson, O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order reversed to the extent stated in opinion ; in other respects affirmed, without costs.