This is an appeal from an order confirming the report of commissioners of estimate and assessment. The appeal relates to two parcels, designated. 2 and 8 on the damage map, for which only nominal *631damages have been allowed. The final map showing Johnson avenue as laid out as a public street was adopted and filed according to law in November, 1895. On October 5, 1898, the board of public improvements adopted the usual resolution that proceedings should be.instituted for the acquisition of the land lying within the lines' of Johnson avenue ; that the title to said lands should vest in the city of Hew York at a date not later than six months after the filing of the oaths of the commissioners of estimate and assessment, and that the entire costand expense of the proceeding should be assessed upon the property deemed to be benefited thereby.
On June 13, 1899, commissioners of estimate and assessment were appointed who qualified and filed their oaths on October 8, 1900. The commissioners made and filed a final report on June 8, 1903, in which they made substantial awards for the two plots to which this appeal relates. This report was not presented, to the court for confirmation until June 19, 1906, when it was confirmed as to certain of the property taken, but as to lots 2 and 8 and the assessment for benefit the matter was referred back to the commissioners. On January 6, .1909, the commissioners again made a final report in which merely nominal damages were awarded to the owners of lots 2 and 8. This report was confirmed and from the order of confirmation this appeal is taken. While these proceedings were pending, and on May 15, 1903, an action for partition was begun involving a considerable tract of land, including the land indicated on the city map as Johnson avenue, and the property lying on either side of it and affected by this proceeding. In the course of this action a partition map was made and filed showing the property as divided into lots fronting and abutting on Johnson avenue, as laid out on the city map, and as sought to be acquired in this proceeding. Johnson avenue was not indicated as a portion of the property to be partitioned, and in point of fact was not partitioned, the title, in so far as it had not already been acquired by the city, being retained by the owners in common. The owners by a partition deed made actual partition among themselves of a portion of the property. So much as was not so partitioned was sold by a referee, who gave the usual referee’s deeds therefor. ' In all of these deeds, the partition deed as well as the referee’s deed, Johnson avenue was recognized and used ás a boundary. Upon this state of *632. facts'we cannot doubt that Johnson avenue became impressed with an easement in favor of the purchasers of the abutting .lots- for its use for streét purposes. The filing of the. partition "map., with Johnson avenue depicted upon it, the exclusion of the bed of the street from the partition, and the bounding of the remaining property upon it in the partition deed and the referee’s deeds "present all the elements necessary to establish a grant.of easements for the use of the "street ' for the benefit of the adjoining property, and other property shown- on the partition map," (Wyman v. Mayor, etc., 11 Wend. 502.) The commonest form of dedicating-a strip of land- for street .purposes, for the. benefit of abutting land is to file a map .showing the street as laid out, and then conveying property as bonncfed upon it. It is not important that the common owners and -the referee - so- bounded' the abutting property as to detain 'title-to" the street. The only effect of that Was that the abutting owners took no absolitte. title to "the street,, and that the common owners retainedthe right to receive whatever compensation should be legally awarded. It did not affect' the amount of the award. The resolution. of the board of public improvements directs that the whole cost be assessed back upon--the property benefited, which means in effect thatthe abutting property must bear it. ' The presumption is that the abutting owners or their predecessors in title have already paid, and the common" owners have already, received in an enhanced price paid for. the lots* compensation for the use of the street. “ It Was the street that gave a •character and recommendation to the lots and enhanced the value . of the adjoining property. This is the natural consequence of opening streets iñ the vicinity of a. city, where population is. increasing • and constantly extending itself over "a. greater space of territory.”-. ■ (Wyman v. Mayor, etc., supra.) In" our. opinion the .commissioners were right in awarding nominal damages for lots 2" and. 8; (Matter of City of New York, 196 N. Y. 286.)
- Tile order appealed from is, therefore, affirmed;.
McLaughlin and Clarke, JJ., .concurred; Ingraham and -Houghton, JJ., dissented. ^ .