In re Gilbert Elevated Railway Co.

Brady, J.:

In the opinion delivered by two of the commissioners, the various questions, which were suggested during the investigation, are elaborately considered, and there seems to be no reason, since the decision of the case of Story v. New York Elevated Railroad Company (90 N. Y., 122), for disturbing any of the conclusions at which they arrived, except one. The rule of damages adopted is sustained by the cases cited, and as the commissioners are not controlled in their estimates by strict judicial rules, and may act upon personal examination and inspection of the subject-matter of the controversy, a palpable violation of established rules should be shown to justify the interference of this court. And this view embraces and disposes of the contention that the commissioners failed to allow for the improvements made upon the property. It is to be assumed that they did so in declaring the damages sustained. The adjudication referred to, in effect, declares that the abutting owners, on the westerly side of the avenue, are entitled to protection and compensation, notwithstanding the change made in the width of the street. It is only where the title is acquired in fee simple absolute that the property may be converted to other public uses, or the particular use ceasing, may be sold and converted to private uses. The city, by the proceedings in wwitum, under the act of 1813, secured a fee in the additional strip, in trust, however, for a particular public use. The act of 1813 proceeds upon the assumption that the opening of a' street makes the property abutting thereon available for the purposes of trade and commerce, and greatly enhances its value; and the damages sustained, by reason of the taking, are assessed, in view of the trust assumed by the public that such lands are to be open as public streets forever. The public do not assume to take the lands in fee simple absolute, but take and pay for a lesser estate. The owner parts with no rights, save such as are necessary to secure the land for street purposes. (Per Danforth and Tract, JJ.)

These views equally apply to widening a street when the additional space is acquired by coudeinnation under the act of 1813. The abutting owner has the benefit of the change, and the taking of the new strip or boundary of it does not create a substitute for the former one, does not destroy his rights in it, they remain intact notwithstanding the change in locality of the original strip or front occasioned by the widening. The strip remains a part of the street with the reserved rights incidental thereto, no other than a lesser ■estate in it having been acquired by the city. The commissioners were quite right, therefore, in awarding compensation for the -damage to land on the westerly side.

It is thought, however, that the commissioners were in error in •supposing that the appellants ,Eno were not entitled to all the awards. It is true there may be authorities which will sustain the proposition that by the terms of the grants affecting these awards the grantees acquired no title to the bed of the street, but, as said in the case mentioned,,there is no evidence that the grantors did not intend to convey their entire estate or to except the title conveyed from the operation of the general rule that a lot bounded on a street •extends to its center. This view is regarded as the latest exposition of tbe rule governing kindred cases, and is a just one. There should be in each conveyance, where the subject is bounded by a street, some reservation of an interest in the bed of the street by appropriate phrase, covenant or particularity of description which leaves no doubt of the intention. There can be little serious question that in a great majority of cases, in which grants are made of property bounded on a street, no thought is entertained of preserving any further interest in the plot transferred. The conveyancer may indulge in this fancy, but the grantor rarely.

This appeal has been examined many times and always with the result foreshadowed by this opinion, namely, that the report of the commissioners should in all respects be confirmed except as to the awards directed to be deposited, and as to these it should be modified by directing the awards to be paid to the Eno claimants, and it is ordered accordingly. No costs allowed to either party of this appeal.

Daniels, J., concurred.

Present — Davis, P. J., Beady and Daniels, JJ.

Proceedings modified as directed in opinion, and affirmed as modi fied, without costs of appeal to either party.