(dissenting). The present proceeding was brought by the City of New York to close and acquire title to Grillen Place, a public street in the Borough of Brooklyn, preparatory *226to releasing the land occupied thereby to the Board of Transportation for the purpose of erecting a bus repair shop and garage. It consequently became necessary for the Brooklyn Union G-as Company and the Consolidated Edison Company of New York, claimants herein, to replace and relocate most of the mains, pipes, wires and other installations that they had been maintaining below the street surface. For the expenses thereby incurred, the courts below granted compensation, and the city appeals from those determinations. In addition, the gas • company appeals from the refusal below to allow it compensation for a section of pipe which the company chose not to relocate or remove because it had become obsolete.
The procedure for closing the street was conducted in accordance with the “ Street Closing Act ” (L. 1895, ch. 1006; L. 1923, ch. 752), as embodied in the Administrative Code of the City of New York (§ E15-1.0 et seq.). Preparatory to closing Grillen Place, the city’s planning commission held a hearing on the proposed change of the city map — the essential preliminary step — and concluded that the change should be approved as “ an element in the formal process of closing and discontinuing an unnecessary street in order that the street area and the abutting City-owned property may be consolidated to permit expansion of City transit storage and repair facilities.” There was no opposition.
The present proceeding was thereupon commenced by the city to accomplish the closing and to obtain title to the bed of the street. Both these purposes are comprehended by the street closing law which provides that the city may “ authorize the closing or discontinuance of such streets therein, in whole or in part, as it may be deemed necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing or discontinuance of such streets ” and also “ acquire the fee title to lands within closed streets * * * whenever it may deem that such acquisition will more effectually secure the actual discontinuance and closing of streets which may be legally discontinued and closed pursuant to this title, or when other public necessity requires the acquisition thereof.” (N. Y. C. Administrative Code, § E15-3.0.)
*227The holdings of the courts below that claimants were entitled to be paid the cost of relocation of their facilities resulted, it seems to me, from a failure to differentiate the two separate steps involved in these proceedings. The closing of the street terminated the privilege of the utility companies to continue their facilities, since that privilege stemmed solely from the fact that they were located in a street. The city had theretofore only an easement in the land for street uses, and the mains and pipes were laid under the surface only as part of the street use. If the street had been surrendered to the owner of the bed of the street — rather than acquired in fee, as here — there could be no question that the owner would have been under no duty to compensate the companies and could have required them to remove their property. (See, e.g., New York Central R. R. Co. v. Westchester Lighting Co., 226 App. Div. 825, 826.) The removal was the consequence of the discontinuance, and could give rise to no claim for damage. The simultaneous acquisition of the fee did not create a claim where none had before existed. Prom the standpoint of claimants, it was immaterial whether the title was acquired simultaneously or weeks or months later, and equally immaterial the use to which the land occupied by the street was to be put. Their right to continued use of the subsurface of the former street was gone, and the taking did not deprive them of any right or add any element of injury.
And, in line with such principles and with such reasoning, the courts of other jurisdictions have held — without considering the use to which the land was to be put — that the displaced utility must bear all costs of relocation. (See New England Tel. & Tel. Co. v. Boston Term. Co., 182 Mass. 397; Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., 87 Ind. App. 74; Central Dist. & Print. Tel. Co. v. Pittsburgh, M. & Y. R. R. Co., 55 Pa. Super. Ct. 237; cf. Taylor v. Portsmouth K. & Y. St. Ry., 91 Me. 193, 198.) Thus, in New England Tel. & Tel. Co. v. Boston Term. Co. (supra, 182 Mass. 397) —a case very like the one now before us — several public streets were discontinued, and the land in the bed thereof appropriated for the site of a railroad terminal station. As in the present case, several utility companies claimed compensation for the enforced removal of their underground facilities from the closed streets. In denying the claim, the court held that *228the utility companies ‘ ‘ have no rights of property in the street, and their structures that were built therein were personal property which they had a right to remove, and which could not be subjects for the assessment of damages” under the applicable statutes (182 Mass., at p. 400). That conclusion followed, the court declared, from the character of the user which a public utility enjoys in the public streets (pp. 399, 401): “ The permanent structures [of a utility company] * * * are permitted [in the public streets] because they are used by the public or a part of the public, or are held and used in private ownership for the benefit of the public. The rights in the streets which are so exercised or enjoyed are not private rights of property, but are a part of the public rights which are shared in common, although used and enjoyed in different ways by the different members of the public who pass through a street, or whose property is carried through it. [p. 399] * * * these public rights, being subject to the control of the Legislature, were terminated by the * * * [statute] which provided for the discontinuance of the streets, and a taking by the respondent. When these places ceased to be public streets, all rights of the public in them came to an end * * * The action taken by the respondent under the statute first worked a discontinuance of the streets, and then appropriated them to the public use for a terminal station. The damages to be assessed were only for rights of property in the real estate at the time of the taking. * * * the petitioners had no such rights, [p: 401] ”
An Indiana court likewise denied a public utility’s claim— asserted against the fee owner of the land in a closed street— to damages for the cost of the removal of its poles and wires necessitated by the closing (Northern Ind. Gas & Elec. Co. v. Merchants Improvement Assn., supra, 87 Ind. App. 74, 77): ‘‘ Any member of the public conveying his products to his customers had the same right to use the alley that appellant had, and appellant was no more entitled to compensation for removing its personal property from the location when it ceased to be a public place than was any other public user who was excluded therefrom by reason of such vacation.”
It is, however, here contended that the proposed use of the street for the benefit of the transportation system is such a *229deviation from the primary purpose of securing the ‘ ‘ regularity and uniformity of the streets ” as to make this a nongovernmental objective and to require payment of compensation by the city. This contention is based on a faulty analogy with cases involving relocation within streets brought about by the construction or operation of the city’s subways. It is well settled that, where the city makes changes in existing streets for ordinary public purposes, the companies must relocate their facilities at their own expense to accommodate them to such changes. (See Consolidated Edison Co. v. State of New York, 302 N. Y. 711; New York City Tunnel Authority v. Consolidated Edison Co., 295 N. Y. 467; Matter of Town of Cheektowaga Grade Crossings, 283 N. Y. 687; Transit Comm. v. Long Island R. R. Co. [Bell Ave. case], 253 N. Y. 345; Chace Trucking Co. v. Richmond Light & R. R. Co., 225 N. Y. 435, 437; Matter of Deering, 93 N. Y. 361.) It is equally well settled ' that, where one utility company requires use of the street which necessitates changes by other utility companies, the last-comer must bear the expense of relocation. (See, e. g., Postal Tel.-Cable Co. v. Depew & Lancaster Light, Power & Conduit Co., 251 N. Y. 562.) In between these extremes fell the case where the change was necessitated by construction of a subway by the city rather than by a private corporation, and the conclusion was reached that for the purpose at hand the city should be regarded as an operator of a utility enterprise. (See City of New York v. New York Tel. Co., 278 N. Y. 9; cf. New York & Queens Elec. Light & Power Co. v. City of New York, 221 App. Div. 544.) That ruling, however, always recognized as exceptional in imposing liability on the municipality, has been, and should be, narrowly confined. (See Consolidated Edison Co. v. State of New York, supra, 302 N. Y. 711.) To apply it here would be to extend the exception beyond its justification. This is not a case of competing street uses; it is a case of discontinuing what has authoritatively been found to be an “ unnecessary street ’ ’, and the termination of occupancy flowed as a matter of course from that decision. The discontinuance was for a public purpose in the traditional sense, for it should always be the purpose of officials to avoid unnecessary expenditure in maintaining unneeded streets. If the area had been returned to private ownership in order to restore it to the tax rolls, that too would *230be a legitimate instance of ‘ ‘ other public necessity ’ ’ justifying the discontinuance of this street. Even if the determination could be collaterally attacked, it would be only on the ground that the street should not be closed, whereas, by the very claim of compensation here asserted, the propriety of the closing itself is necessarily conceded.
An alternative ground urged by claimants is that the statute expressly provides for such payment.
It may be conceded that the legislature could have required such payment as a condition for the discontinuance of streets. But that it would do so, that it would require such payment is exceedingly doubtful. Claimant utilities had no interest in the bed of the street. Their occupancy was merely derivative from the former street use. They were not abutting owners, and therefore contributed nothing either to the cost of acquisition of the street or to its maintenance. It is difficult to see the basis on which the city should compensate the occupant for the loss of a privilege which was obtained and maintained entirely without cost or expense. In my opinion, the statute, when reasonably construed in its context, makes no such provision. As already noted, the statute provides that the city, in addition to closing the street, “ may acquire the fee title to lands within closed streets ”. This is an ordinary condemnation proceeding. The statute requires payment for real property taken or damaged. But here there was no property of claimants taken or damaged. The city did not want the wires, pipes, mains and the like, and it did not specify them as property to be taken. Nor did the city damage this property. It is true that it became necessary for claimants to remove their property, but that, as already pointed out, was a consequence of the closing of the street, not of the acquisition of the “ fee title to lands within closed streets ”.
In point of fact, claimants did not own any real property affected by the acquisition of title to the bed of the street. It is true that real property is here defined as including “ all surface and subsurface structures within closed streets and all easements and hereditaments, corporeal or incorporeal, and. every estate, interest and right, legal and equitable, in lands, and every right, interest, privilege, easement and franchise relating to the same, including terms for years and liens by way of judgment, mortgage or otherwise ” (N. Y. C. Administrative Code, *231§ E15-1.0, subd. 5). However, this is customary language when dealing comprehensively with interests in real property for the purpose of assuring complete title. It does not create an interest in land where none previously existed. It is well settled that, in the absence of statute, the installations of public utilities retain their character as personal property. (See Matter of City of New York [Fort Greene Houses], 291 N. Y. 788; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166, 175-176; People ex rel. Citizens’ Gas-Light Co. of Brooklyn v. Board of Assessors of City of Brooklyn, 39 N. Y. 81, 87; People ex rel. New York Edison Co. v. Feitner, 99 App. Div. 274, affd. 181 N. Y. 549.) The quoted definition was not intended to encompass more than that traditionally regarded as real property. If the legislature had intended to include the pipes, mains and wires of public utilities, specific language was at hand to make that meaning clear. Thus, “ real property ” as defined in subdivision 6 of section 2 of the Tax Law, includes “ structures, substructures and superstructures, erected upon, under or above, or affixed to the [land] ”, and 11 all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or conveyance therein ”. The legislature evidently considered the former clause inadequate to accomplish the purpose of rendering the installations of public utility companies taxable as real estate, and it is my opinion that the almost identical language of the definition section of the street closing law is similarly inadequate to require the city to compensate utilities for the value of their installations where no such liability exists at common law. Absent unambiguous language, similar to that employed in the Tax Law, we cannot assume that the legislature intended to thrust upon the city a liability from which, as we have seen, it is traditionally exempt.
Moreover, strictly speaking, the question is, not whether the franchise together with the use may be considered to be an interest in land, but whether the facilities in the bed of the street represent an interest in land after the right to maintain them is gone. The general franchise to use all streets, which these claimants possessed by reason of their charters and applicable *232legislation, of course continued unaffected by reason of this street closing, and it was in accordance therewith that these facilities were relocated in other streets. However, the right to use this particular area was terminated by the discontinuance of the street and thereafter the claimants had merely the right, which they exercised, to remove their property to another public street.
I would, therefore, reverse so much of the order appealed from as grants compensation to claimants.
Loughran, Ch. J., Lewis, Conway and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents in opinion in which Desmond, J., concurs.
Order affirmed, etc.