This is an appeal from an order denying a motion to vacate and set aside a final decree in condemnation proceedings. The final decree contained an award to Stephens Fuel Company, Inc., "for loss of use of Motthaven Canal and for loss of use of improvements on said damage parcel." Appellant, The Bowery Savings Bank, is the holder of mortgages on the property of Stephens Fuel Company, Inc.
The condemnation proceeding was brought to acquire the lands necessary to widen 135th Street and other streets to be used as the westerly approach to the Triborough Bridge. A resolution of the Board of Estimate and Apportionment adopted October 20, 1936, provided: *Page 9
"Resolved, That the Board of Estimate and Apportionment, in pursuance of the provisions of the Greater New York Charter, as amended, deems it for the public interest that the title, for the uses and to the extent thereof as hereinmentioned, to the real property required for the opening and extending of * * * East 135th Street from Park avenue to Lincoln avenue, * * * where not heretofore acquired by The City of New York for street purposes, * * * should be acquired by The City of New York.
"Resolved, That the title to be so acquired is hereby determined to be a title in fee in such premises. * * *"
The Corporation Counsel thereafter applied to the Supreme Court on notice published in the City Record for an order of condemnation. The said application described the property by metes and bounds. In Parcel F was included a strip in or across the Mott Haven Canal. (The City already owned a good portion of the Canal.) The notice to file claims provided that "each and every person interested in the real property to be taken for the purpose of opening and extending of the above named streets having any claim or demand on account thereof" shall file his claim before November 18, 1936.
Nothing was said in those papers about the Mott Haven Canal or about closing it.
On October 20, 1936, the Board of Estimate approved the rule map submitted by the Borough President of the Bronx for use in the proceedings. That map shows the Mott Haven Canal running through Parcel F to the Harlem River.
On December 18, 1936, the Board of Estimate approved a damage map submitted by the Borough President for use in the proceedings. That map also showed the Mott Haven Canal running through Parcel F.
On March 5, 1937, the Board of Estimate approved the amendment of the proceedings to acquire additional property. Nothing was said about the Mott Haven Canal. Supplementary rule and damage maps were thereafter approved. The Supplementary Rule Map showed the Mott Haven Canal running through Parcel F, but the Supplementary Damage Map only showed it within Parcel F and not continuing through it.
Upon the trial in the condemnation proceedings certain of the owners of lands along the Mott Haven Canal applied for *Page 10 leave to file claims on the ground that the Canal would be rendered valueless as a result of the proceeding and that the closing of the Canal would result in damage to them by reason of the fact that the highway to be erected for the westerly approach to the Triborough Bridge would shut off access to the Mott Haven Canal north of 135th Street. The application was granted, damage numbers (including number 381) assigned to the plots affected by the discontinuance of the Canal and testimony taken. (See Matterof City of New York [Exterior Street], 285 N.Y. 455, and record therein.)
A tentative decree was thereafter entered. It contained an award to Stephens Fuel Company, Inc. (among others), for Parcel No. 381 for "Improvements, Damage for removal of Canal". A final decree was entered and an appeal taken. This court directed further proceedings as to the amount of the award (285 N.Y. 455) and subsequently an award was made and paid to Stephens Fuel Company, Inc.
The Bowery Savings Bank was the owner and holder of three first mortgages covering the premises (Parcel No. 381) owned by Stephens Fuel Company, Inc. However, Stephens Fuel Company, Inc., made two affidavits stating that there were no mortgages or other incumbrances. The award was therefore paid to Stephens Fuel Company, Inc., and not to The Bowery Savings Bank.
The Bowery Savings Bank had appeared in the condemnation proceedings with reference to another parcel (Parcel No. 147), had actively participated in the trial, and was awarded damages for that parcel. It had no actual notice, however, as to Parcel No. 381 (the Stephens' parcel).
The Bowery Savings Bank now urges that the court had no jurisdiction to amend the proceedings so as to include Parcel No. 381 and that there was no notice that there was to be interference with the easement of access of Stephens Fuel Company, Inc.
The Appellate Division has certified the following questions:
"1. Did the Court at Special Term have jurisdiction to amend the damage maps in this proceeding so as to include Damage Parcel No. 381 without giving the notice provided for in Section 994 of the Greater New York Charter? *Page 11
"2. Were the proceedings taken herein sufficient to apprise appellant that its property was to be taken?
"3. Did the Court at Special Term have jurisdiction over appellant?"
The resolutions of the Board of Estimate, the maps and the notices all showed that certain lands were to be taken in fee for the purpose of widening streets. We do not think any of those documents would apprise property owners that a canal was to be closed. There was at that time a drawbridge across the Mott Haven Canal. Since the street, which was to be widened crossed the Canal, the natural inference would be that the widened street would also cross the Canal. That would necessitate a new bridge but not the closing of the Canal. There is nothing in the record to show why the Canal was closed. The closing apparently had nothing to do with the widening of the particular street, but may have been in connection with some other project. In connection with a prior appeal, Special Term stated that a representation had been made in open court that a street would be substituted for the Canal. The record, however, does not disclose the representation nor by whom it was made. (See 285 N.Y. 455, 459,461.) In the brief of appellants then submitted, it was stated that the Canal had been rough-filled but that no further improvement had been made since 1937 (that was in 1941). The instant proceeding was initiated in October, 1936. The closing of the Canal could not have been contemplated because of anything in connection with the Triborough Bridge approach. Clearly the property owners could not have learned from the notices and maps that the Canal was to be closed. The abutting property owners who filed claims must have learned of it in some other manner.
It is claimed, however, that because the City was taking Parcel No. 29 (the portion of the Canal just north of 135th Street) infee, the easements were cut off. Respondent contends that the notice that certain parcels were to be taken by the City in fee informed property owners outside the lines of taking that the easements in the Canal were to be extinguished and that they should file claims. That does not follow. The fact that the City took the land in fee would not mean that the Canal was to be closed. The City might have permitted the Canal to *Page 12 remain; it might have widened and deepened it; it might have charged for the use of it; it might have used the bed to uphold parts of a new bridge without closing the Canal. The record in the prior proceeding shows that the City had acquired the entirebed of the Canal except Parcel No. 29 in tax lien foreclosureactions. A referee's deed was given to the City on June 26, 1922. Since the City permitted the Canal and the easements to remain, even though it owned the property, there was no reason to suppose that the City would not continue the Canal after it had acquired an additional parcel of the bed.
There is nothing inconsistent between the ownership in fee of a parcel by one person and the ownership of an easement in the same parcel by another. By definition, "an easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former." (G.L. P.J.R.R. Co. v. N.Y. G.L.R.R. Co., 134 N.Y. 435, 439.) The two estates are independent and the conveyance of one does not affect the other. In Nellis v. Munson et al., (108 N.Y. 453) in holding that an easement was an interest "in fee or of a freehold estate" within the meaning of a statute requiring that the conveyance of such an interest must be acknowledged, we said (p. 460): "Washburn in discussing the distinction between an easement and a license, says that `an easement always implies an interest in the land, in or over which it is to be enjoyed. * * *' And further says, `the ownership of an easement and that of the fee in the same estate are in different persons. Nor does the interest of the one affect that of the other, so but that each may have his proper remedy for an injury to his right, independent of the other.'" Where the City serves notice that it is taking the fee of the servient estate, it does not follow of necessity that it is taking the easement which is appurtenant to the dominant estate. Certainly not, when it is a street opening proceeding although it would be so if it were a street closing proceeding. Here the City was attempting a closing proceeding result in a street opening and widening proceeding. Opening and closing proceedings produce different results and have different purposes. Thus when it was desired to close this same Canal north of 138th *Page 13 Street to 144th Street in the Bronx, a proceeding was instituted for the purpose of opening a street to be called Canal Place over property constituting part of a canal or waterway between those streets. (Matter of Canal Place, 64 App. Div. 604.)
The easements here were apparently acquired by grant (seeMatter of City of New York [Canal Place], 115 App. Div. 458,463, affd. 191 N.Y. 525) and since they were estates independent of the fee, there was nothing in the notice that the City was to take the fee which would apprise the owners of the dominant estates that their interests were being taken. It has been held that "The property or interest to be acquired must be ascertainable from the description thereof in the petition itselfwithout reference to extrinsic facts. `Without this the owner of land cannot know what portion of his lands is required; nor the commissioners what damages to appraise; nor the petitioner the precise boundaries of the land after the same is acquired.'" (Bell Telephone Co. v. Parker, 187 N.Y. 299, 303.) (Emphasis supplied.)
It is contended that Greater New York Charter section 999 and section 1000 require only that the City indicate in the notice to file claims "the real property to be taken by a general description by metes and bounds"; that the City complied with that requirement and that that was sufficient notice to abutting owners on Mott Haven Canal outside the line of taking. Section 999 provides that "Whenever the acquisition of title to realproperty" shall have been authorized, the Corporation Counsel shall publish a notice, which notice shall contain a metes and bounds description. Insofar as Parcel 381 was concerned in the instant case, the City was not acquiring title to real property, but was cutting off an easement. Undoubtedly, where the City is acquiring title to real property, it must describe that property by metes and bounds but that does not mean that if it is cutting off an easement it may be silent. Under that theory, if the City wished to acquire or cut off an easement, it could do so without giving anyone any notice. We think, therefore, that the provisions of the Charter do not change the rule that "The property or interest to be acquired must be ascertainable from the description thereof in the petition itself * * *." (BellTelephone Co. v. Parker, supra.) (Emphasis supplied.) *Page 14
Since the notices were inadequate to apprise the easement owners that their interests were being taken, I do not think Special Term had jurisdiction to add the additional damage parcels. If the court may without notice add other parcels, it will be impossible for any property owner to know when his interests are affected. The parcel involved in the instant case (Parcel No. 381) was three blocks away from the parcel the City was taking (Parcel No. 29) according to the notice given. It was merely tied to that parcel by the fact of the easement, which was appurtenant to it (Parcel No. 381) and not to Parcel No. 29. Suppose the Canal had extended for several miles. The property owners at the farther end might never learn through extrinsic sources that the City intended to close the Canal at the opposite end. Could the court add those parcels without notice merely because they were tied to the parcel being taken by their right to use the Canal? We think section 994 of the Charter provides a proper answer. That section indicates a method by which a condemnation proceeding may be enlarged when it develops during the course of it that other property rights are affected. It provides: "The Court may at any time amend any defect or informality in any notice, petition, pleading, order, report or decree in a proceeding authorized by this title, or cause real property affected by such defect, informality or lack of jurisdiction to be excluded therefrom, or other real property affected by such defect, informality or lack of jurisdiction to be included therein by amendment, upon ten days' notice, published and posted as provided by this title for the institution of a proceeding, and may direct such further notices to be given to any party in interest as it shall deem proper." We think this section applies to a situation like the present one, where it has developed during the proceeding that other rights are affected and that the notice and petition were defective in that they did not refer to them. Although no change occurred in the lines of taking, a change did occur in that easements were destroyed. Although no additional property was taken in fee, additional easements were included. The court should, therefore, have directed that notice be given of that change.
Section 994 also disposes of the argument that it would be too burdensome to require the City to search out every interest *Page 15 that might be affected. If it develops during the course of a condemnation proceeding that certain property is consequentially affected, the proceeding may be amended to include that property. In most instances it will occur to some one that his rights are affected and notice can then be given to others in like situation.
In the instant case, moreover, it would have been quite a simple matter for the City to indicate that it was closing Mott Haven Canal, or that it was taking the fee and all easements therein. If either had been stated in the notices in addition to the fact that the fee was being taken and certain streets were to be widened, no one could have claimed that his interests were affected without notice.
We do not think that appellant's position is affected by the fact that it appeared in the proceeding as to another parcel. The lack of jurisdiction here is of the subject matter and not of the person. Jurisdiction of the subject matter cannot be conferred by appearance or consent. (Patrone v. Howlett, 237 N.Y. 394,397.) The subject matter of the action (insofar as involved here) was the fee of Parcel No. 29. The court had no jurisdiction of the easement over Parcel No. 29 nor of Parcel No. 381 to which the easement attached. In order to cut off the easement both Parcel No. 29 (in and across the Canal, part of Parcel F) and Parcel No. 381 had to be brought within the jurisdiction of the court insofar as the easement was to be affected. That was not done, since the notices were inadequate. Therefore the fact that a party owning the easement appeared in the proceeding so as to protect his property rights in Parcel No. 147, conferred no jurisdiction on the court and appellant's interests were not cut off.
The first and second certified questions should be answered in the negative; the third question need not be answered.
LEHMAN, Ch. J., RIPPEY and DESMOND, JJ., concur with LEWIS, J.; CONWAY, J., dissents in opinion in which LOUGHRAN, J., concurs; THACHER, J., taking no part.
Order affirmed, etc. *Page 16