I agree with the result of Judge GRAY'S opinion, and my reasons can be stated in a few words. The proceedings under the act of 1847, which occupy such a prominent place in the record and in the briefs of counsel, were not, I think, proceedings to acquire title to lands for street purposes, but proceedings to determine the damages which should be awarded to the owners of lands already taken and appropriated for that purpose.
Chapter 203 of the Laws of 1847 is entitled "An Act to lay out a new street in the 12th Ward of the City of New York and to keep open a part of Bloomingdale Road in said City." The statute then proceeds to describe certain lands with great particularity by metes and bounds, and closes in these words: That such lands are "hereby declared for all legal purposes to be one of the streets of the said city in like manner as if the same had been so laid out by the commissioners appointed in and by the act entitled `An Act relative to improvements touching the laying out of streets and roads in the City of New York and for other purposes,' passed April 3d 1807." It is conceded that the lands in question are embraced within the description contained in the statute. The legislature had the undoubted power to condemn, or appropriate lands for street purposes, and it had the power to appropriate it in fee. That was the legal effect of the action of the legislature as expressed in the statute, and it has been so held by this court in construing statutes of a similar character. (Spears v. Mayor, etc., of N.Y., 87 N.Y. 359, 368; Sage v.City of Brooklyn, 89 N.Y. 189; McCormack v. City ofBrooklyn, *Page 379 108 N.Y. 49; Magee v. City of Brooklyn, 144 N.Y. 265, 268;Donnelly v. City of Brooklyn, 121 N.Y. 9.)
The legal operation of the statute, therefore, was to divest the then owners of all interest in the lands in question and transfer the same to the city. All that remained for the city to do after the statute took effect was to proceed under laws then existing to ascertain the damages that any private parties had sustained, or could claim, by reason of the taking of their lands, and the proceedings of the commissioners and the courts subsequent to the passage of the statute were entirely sufficient for that purpose.
I do not think that the nature or quality of the estate appropriated by the statute is at all limited or reduced to something less than a fee by the closing words above quoted. On the contrary, it seems to me that the purpose of the legislature to take the lands in fee is made clearer by those words, since they declare that the lands should be deemed for all legal purposes to be one of the streets of the city in like manner as if the same was laid out by the commissioners appointed in and by the act of April 3d 1807. On looking into that act we find that it is provided that lands taken as therein prescribed for street purposes shall vest in fee in the city. The words are that the "mayor, aldermen and commonalty of the City of New York shall be and become seized in fee of all such lands, tenements and hereditaments." (Laws of 1807, chap. 115, sec. 9.)
Hence, I conclude that the statute, by its own force and effect, took and appropriated the lands in question in fee, leaving the question of damages to be ascertained under existing laws, which were substantially followed by awarding to the owners such damages as they had sustained by the operation of the statute. Thus all title in the Hopper heirs, or any other private parties, was divested and transferred to the city. If I am right in this position, it must follow that the plaintiffs have no title to the lands in question, and that proposition necessarily defeats this action, even if there were any defects in the proceedings for the ascertainment of the damages. *Page 380 But I do not think that there were any such defects, certainly none that can benefit the plaintiffs.
The proceedings in the partition case and the sale thereunder were doubtless a recognition of this situation as between all the parties to that proceeding. Hence, I am for reversal.
BARTLETT, J. I agree with the conclusion reached by Judge GRAY that the judgment appealed from should be reversed and the complaint dismissed upon the merits. I also agree with his opinion, save in one particular, relating to the act of 1787, chapter 61, being "An Act for the better regulating of the public roads in the City and County of New York," in regard to which he states that he is not prepared to say that the referee was in error in determining upon the evidence that it was not shown that John Hopper, Jr., was divested of the fee of his land in the Bloomingdale road by reason of the proceedings under the act of 1787, and that he is of opinion that the evidence furnished as to such proceedings having been taken is an insecure ground upon which to rest.
As pointed out by the learned counsel for the defendant, "from the day of the death of John Hopper, Sr., which was prior to the year 1779, down to the year 1893, when this suit was commenced, a period of one hundred and fourteen years, the heirs of John Hopper, Sr., have never asserted any claim or title in any manner, form or shape to any portion of the bed of Bloomingdale road. The very first words which we hear them utter in respect to their father's property describe it as lying `adjoining the road called the Bloomingdale Road, running from the west side of said Road to the River, and from the east side of the Road running to the Commons,' a plain admission that their father did not own the bed of that Road."
John Hopper, Sr., succeeded to the title of his father, Matthias Hoppe; he died prior to July, 1779, leaving a last will and testament dated in October, 1778, whereby he gave to his five sons and four grandsons all his real estate lying in the Out ward of the city of New York, being divided in the manner prescribed in the will. In accordance with the scheme *Page 381 of this will, an agreement of partition was made between the devisees mentioned therein, which commences with the following recital: "Whereas, John Hopper, late of the outward of the City of New York, farmer, among other real estates was possessed of lands and tenements situate in the outward of the City of New York, adjoining the road called the Bloomingdale Road, runningfrom the west side of said road to the North River, and from theeast side of said road to the Commons."
It was set forth in this agreement, in substance, that the parties had agreed to and with each other to lay out said farm in six equal lots, viz.: "On the west side of said road in six equal lots, to be numbered 1 to 6; and on the east side of said road, to be numbered 1 to 6, and to match said lots in a certain manner and as follows: Lot No. 6 on the west side with Lot No. 6 on the east side, and then to be drawn for in manner mentioned in said John Hopper's will." It appears that lots six on the east and west sides of the road fell to the testator's son, John, known in this proceeding as John Hopper, Jr.
It seems to me that at this early day the devisees under the will of John Hopper, Sr., recognized the fact, in the language just quoted, that the fee of the bed of the Bloomingdale road was in the city. The cases cited as sustaining a contrary view do not apply for the reason that this is a partition suit of lands which belonged to John Hopper, Sr., and if the title to the bed of the road was in him at the time of his death, this recitation in the partition agreement just quoted would necessarily have recognized that fact and established the dividing line as the center of the road.
The learned referee found (sixteenth finding) that between the years 1782 and 1819 the Bloomingdale road was actually widened from the width of about two rods to the width of about four rods, as shown by a map made by John Randel, referred to in the twentieth finding. He also found (seventeenth finding) that in the years 1791 to 1797 various proceedings were taken by the common council of the city of New York to extend the road from its then terminus in the lands *Page 382 of Nicholas De Peyster to the Kingsbridge road and to restore it to the width of four rods. He also found (nineteenth finding), after referring to map or survey made by John Randel, bearing date September 20th, 1819, and which was on file in the department of public works of the city of New York, and had been for more than eighty years, that upon said map the boundaries of the tracts of land on the east and west sides of the Bloomingdale road, upon which the name of John Hopper appears, agree substantially, with reference to the said road and the streets, with the boundaries of lots six and six shown upon the partition map made by Evert Bancker, dated February, 1782, and that the width of the Bloomingdale road between said parcels is approximately four rods.
The act of 1787 authorized and empowered the mayor, aldermen and commonalty of the city of New York to alter and widen roads and highways already laid out to such a convenient width, not exceeding four rods, nor less than two rods, as the commissioner should deem fit. The provisions of the act clearly authorized the acquiring of the fee of the lands taken either by purchase or condemnation proceedings.
In the absence of complete record proof of proceedings under the act of 1787, it was competent for the defendant to offer secondary evidence of their existence. The strict rules of evidence are relaxed when a party seeks to prove proceedings that lie back of the memories of the living. The non-existence of complete records of transactions in the early history of the city of New York is not unusual and resort has been often had to secondary evidence. The referee has found that between the years 1782 and 1819 the Bloomingdale road was widened from two to four rods, and in view of other facts the presumption is very strong that it was accomplished under the act of 1787.
I will now call attention to the facts proven by the defendant, tending to show that proceedings were instituted and conducted to a conclusion under the act of 1787. On the 14th of May, 1793, it was ordered by the common council that "said road from its commencement at Horne's house *Page 383 (which was at Twenty-first street) to Nicholas de Peyster's barn (which was far above the premises in question), be immediately opened to its proper and legal width of four rods." At this time there was no other authority for the action of the common council except the act of 1787. If any proceedings were taken under the act, this ordinance of the common council may be regarded as their inception.
The defendant then put in evidence the Bancker map, made in 1782, which shows the road two rods wide, and the Doughty map, made in 1820, which shows that the road was then four rods wide or thereabouts, and the Randel map, made about 1820, which also shows the road four rods wide. It is, therefore, made clear that the widening took place between these dates, and the referee has so found, as already pointed out. If the proof had gone no further than this, the learned counsel for the defendant insists that the rule of law in regard to ancient proceedings is that having proved their inception, and that they were carried to completion, all intermediate steps are presumed to have been regularly taken, quoting in this connection the Latin maxim: "Extremis probatis, ex diuturnitate temporis, omnia præsumunturrite esse acta."
Additional evidence was, however, given as follows:
1st. The resolution of the fourth of September, 1797, whereby, on a petition for the opening of the Bloomingdale road to its proper width of four rods, two aldermen were appointed a committee to direct the proprietors of land, where the road is not of its proper width, to remove their fences, and then to direct the roadmaster to work and put the road in good order.
2nd. A release by Nicholas de Peyster and others, dated the 24th of March, 1795, reciting that the mayor, aldermen and commonalty had lawfully "laid out, regulated and continued a public highway or road commonly called the Bloomingdale Road of the breadth of four rods through the lands," etc., and releasing to the city "all the lands necessary for the said road for a breadth of four rods."
3rd. A resolution of the common council passed the 7th of *Page 384 April, 1795, directing the said release to be proved, deposited in the clerk's office and recorded.
4th. An extract from the common council's minutes of July 13th, 1795, showing that Mr. de Peyster and others had released, or were willing to release, the ground needed for the road to the corporation, but that Molenaer and Meyer had not released, and that the committee had laid out the road of the designated width across their lands.
5th. Minutes of the Mayor's Court of September 15th, 1795, showing that proceedings were taken for the condemnation of the lands of Molenaer and Meyer, who had refused to release.
The defendant's counsel points out that the last mentioned proceeding related to the lands north of the premises in question, but insists that they showed that the city, during the years 1793 to 1797, was conducting proceedings under the act of 1787 to widen the old road and to continue it further north.
In my opinion the above proofs, in addition to the proof of the inception and completion of the proceedings to which reference has already been made, lead to the conclusive presumption that the widening of the Bloomingdale road at the point and between the years in question, was by proceedings taken under the act of 1787.
Whatever proceedings may have been had under the acts of 1807, 1813 and 1847, are necessarily, in my opinion, to be regarded as confirmatory of the proceedings under the act of 1787 so far as the farm of John Hopper, Sr., is concerned, which is the only land involved in this litigation.
There is no doubt that it is a matter of historical proof that the beginnings of the Bloomingdale road date back to the occupation of Manhattan island by the Dutch, and that it may be assumed that such title to the bed of the road as was then acquired was in the government, as under the Dutch law no compensation was paid for private property taken for public use.
Under the Dongan charter of 1686, after the English conquest, it was provided that the limits of Manhattan island were co-terminus with the island. The Bloomingdale road in *Page 385 its earliest days was doubtless within the limits of the city of New York.
The defendant's argument, under the act of 1787, is that at the close of the Revolutionary war the legislature took up the subject of roads and streets within the city of New York and passed the act of 1787.
CULLEN, Ch. J., O'BRIEN and BARTLETT, JJ., concur in opinions with GRAY, J., and HAIGHT, VANN and WERNER, JJ., concur with CULLEN, Ch. J.
Judgment accordingly.