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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 570 These proceedings are entirely inappropriate for the purpose of trying the question of title to the property in controversy, or for testing the right of the city to an easement in the land for the purpose of building the sewer referred to herein. The city authorities have assumed, from the commencement, so far as the record shows, that the appellant was the owner of the land in question, and that it was the intention of the city, through these proceedings, to take from him a right or easement in the land for the purpose of the construction, maintenance and repair of this sewer. That was the statement made by the water commissioners when they first inaugurated the proceeding. It was recited and concurred in by the common council when, assuming to carry out the recommendation of the water commissioners, it adopted the resolution directing the commencement of this proceeding. The resolution of the common council recited the action of the water commissioners, and resolved that the improvement spoken of by that board should be allowed to be made, and that the right and easement recommended by the water commissioners *Page 573 in the strip or parcel of land described by it should be taken, and directed application therefor to be made to the Supreme Court. The order of the Supreme Court, after reciting the action of the water commissioners and of the common council, and upon the motion of the attorney for the city of Yonkers, appointed commissioners to estimate and assess the expenses of taking the right or easement in the land required for the said sewer. Not only the nature of the proceedings themselves, but this action of the commissioners, the council and the court, was all founded upon the assumption of the ownership of this right on the part of Mr. Lawrence, and that it was necessary to be taken for public purposes and to be paid for by the parties interested therein. Such a proceeding is not the proper one for the purpose of testing the title to the land which is proposed to be taken, as between the public body and the individual against whom the proceedings are commenced.
If the land in question be as claimed — a public street in the city of Yonkers — then that city has the right, as an incident to its jurisdiction over its streets and highways, to lay down a sewer therein in accordance with its by-laws and regulations. To put a sewer in a public street in a city is simply to use the street in a manner which is necessarily incident to the use for which streets are opened and laid out in cities. It is a part of the purpose in view when land is taken or dedicated for use as a public street in a city, that it shall be used not only for the purposes of mere passage and repassage, but for all such incidental purposes, including the building of sewers therein, as may be necessary, appropriate and usual for the proper enjoyment of such street. (See Kelsey v. King, 32 Barb. 410; 2 Dillon on Mun. Corp. [3d ed.] § 688, and note; 1st ed. § 544; City ofBoston v. Richardson, 13 Allen, 146-159; City of Cincinnati v. White, 6 Peters, 431; Warren v. City of Grand Haven,30 Mich. 24-28.)
If this were a public street at the point in question, then this is an entirely inappropriate proceeding to investigate any special damage that the land-owner of adjacent property may *Page 574 be subjected to by the digging up of the public street and laying the sewer therein by the public authorities. His property is not taken nor is any new easement therein taken from him and, therefore, no necessity exists for the institution of any such proceeding, and its institution in a case where the city denies the existence of any right or title in the assumed owner, is improper and should not be permitted. But, upon the facts in this case, we think the learned courts below have fallen into an error in holding that the land-owner has no easement to be taken. That error is one of fact based upon the assumption that the western termination of Wells avenue ever, in truth, reached the Hudson river. A careful examination herein shows that by the building of the Hudson river embankment and the mole or pier extending out into the river, and which met the embankment upon which the railroad was built, a new shore was, in fact, made for the Hudson river. By this embankment the bay theretofore existing became land locked, and there was no access from the old shore line to the new water line of the river. The little culvert of four feet which was made under or through the embankment at a point one hundred feet north of the northerly line of Wells avenue as extended, did not in any way furnish a means of access as upon a highway from Wells avenue to the river. Its sole purpose was to permit the tide to ebb and flow through it, and neither in law or in fact did it furnish any access for the purpose of business or pleasure to the waters of the river from the old shore. It was in this condition when, in 1856, Wells avenue was extended from a point in Broadway westerly to a point one foot east of the easterly line of this railroad embankment, and at that point it terminated, and at that termination there was no connection with the waters of the Hudson river, and no means of business communication therewith. In front of it was the solid masonry, twenty-five feet wide, of this embankment, upon which were laid the rails of the railroad, and this embankment was three feet higher than the grade of the extended street. Subsequent to that time the land was filled in on the west of that embankment, and at the time when *Page 575 the grant to Frazier was made by the People of the state by letters patent, such filling in had been made to a distance of fifty or sixty feet west of the embankment, and when the dedication was made by Frazier and others of land for the purpose of extending Wells avenue to a point five feet west of the westerly line of the railroad embankment, the land had at that time been extended two hundred and forty-five feet west of the embankment, and hence when the dedication and extension were concluded and the street was extended to the westerly end of the point dedicated it was then two hundred and forty feet away from the water line of the river with no means of access whatever, that is, so far as the highway is concerned. It terminated at that point and no one had the legal right to go one foot beyond that five feet west of the railway embankment without the permission of the owner of this land.
It is claimed that the affidavit of Mr. Cornell states facts which are quite the reverse of those which have been above set forth. Upon a careful perusal of his affidavit, I think it plain that he is testifying to his own opinion as to the legal effect of certain facts which are not in controversy, but from which he draws deductions which I do not think are correct. He states that at the time Wells avenue was extended, in 1856, the original high-water line of the Hudson river was east of the point to which said avenue was opened, and that the land under water between high and low-water mark was afterwards filled in so as to become part of the extended avenue, to a point west of the westerly line of the Hudson River Railroad tracks, and such extended avenue was dedicated to and accepted by the corporate authorities of Yonkers, and has ever since been a public street. He states that the public had, after such filling in and after the opening of Wells avenue, "at all times means of access to the navigable waters of the Hudson river, to a point west of said Hudson River Railroad track, upon and along said Wells avenue to the navigable waters where the tide ebbs and flows, and access to the channel to said river from the shore." Mr. Cornell does not pretend to dispute or in any manner contradict the specific *Page 576 facts which are found in the statement prefixed to this opinion, but he evidently thinks, because of the fact that the laying out of Wells avenue in 1856 was to a point west of the original high-water mark which had existed before the embankment already described had been made, that he thereby conclusively shows that Wells avenue extended to the Hudson river, and he plainly assumes that the filling in on the west side of the embankment, and the dedication of the five feet west thereof, constituted an effective extension of the avenue, not only to that point, but to whatever further point it was necessary to go in order to reach the river. The means of access to the channel of the river spoken of in his affidavit are simply the extension of this highway five feet west of the track, and an assumed right to pass thence to the water line over the space filled in by Frazier or his grantees.
Upon the uncontradicted facts already detailed, I have no doubt that no such right exists as has been claimed on the part of the city. Up to 1856 it is not claimed that the street reached even as far west as the old high-water mark of the river, and when it did reach such old high-water mark the actual shore of the river was far west of it and also of this railroad embankment and had been substantially altered under authority from the state by private and corporate action. It is idle, even after its extension in 1856, to speak of this street as reaching the river bank when between the street and such bank there was then interposed the solid obstruction of the Hudson River Railroad embankment and many feet of land beyond it.
The case upon which reliance has been chiefly placed is that of the People v. Lambier (5 Denio, 9). But there the one controlling fact existed which does not exist here, for in that case the street did go to the shore of the river, and the filling in thereafter made was held by the court to be a continuation of the street. If instead of the street reaching the shore it had never been within many feet of it, no one would ever suspect that in filling in from the shore line which the street did not reach, the right to bridge over that intervening space thereby sprang into existence, together with the right to follow the filling *Page 577 in of the land as far out as it was extended. The case has no analogy whatever to this one.
Both orders of the General and Special Terms should be reversed, the award should be set aside, and the proceedings remitted to the commissioners for further proceeding in accordance with law, costs in all courts up to this time to be paid by the city of Yonkers.
All concur.
Ordered accordingly.