In re Pinehurst Avenue

McCall, J. Part of the property taken in this proceeding was delineated .as a lane, over which a right of way existed by' grant in favor of owners whose property abutted upon the street (new avenue) now to be opened, and also in favor of owners whose property does not so abut -and yet who still have access to the lane over other streets. The awards to the abutting owners have included no item of damage for the loss of the easements in the lane, and properly, since the street when opened affords all that the easement represents (Matter of One ■ Hundred and Sixteenth St., 1 App. Div. 437), and if the street should be closed compensation for the loss of the easements of light, air and access would then be made. Gillender v. City, 127 App. Div. 616; Swain v. Schonleben, 130 id. 521. As to non-abutting owners, however, the statute (Laws of 1895, chap. 1006) apparently gives no right to compensation for the closing of a street (Matter of Grade Crossing, 46 App. Div. 473; 166 N. Y. 169; Matter of One Hundred and Fifty-first street, N. Y. L. J., Feb. 25, 1908, Blanchard, J.) and yet all the interests of these non-abutting owners in the lane — their easement secured to them by grant — have been extinguished in this proceeding, with no compensation or future right to compensation, if through the closing of the street access over the bed of the old lane be afterward denied them. This is not the case of a right of way of necessity for which other streets may be deemed a substi [513] tute; it is an easement by grant of actual and additional value, and compensation for the taking of that easement should be made. That this easement has a substantial value has been found by the commissioners, and the finding is expressed in the lessened award to the owners of the fee of the lane. This finding was undoubtedly correct, since I fail to perceive reasonable ground for holding that the easement of these non-abutting owners over the land now taken was affected by the taking of other portions of the lane in other street opening proceedings. As appears, what was then taken was the lane with its easements, so far as covered by the particular proceeding then brought; and the right of access over the remainder of the lane was not affected. The report should, therefore, be sent back for correction of the awards in order that damages may be awarded to the non-abutting owners. So far as complaint is made as to the assessments for benefit, I fail to find grounds for disturbing the report. The “ block by block ” rule has been substantially followed; and, whilá there is a disparity between blocks in the gross amount of the assessments, and so in the assessments laid for distinct parcels, this is mainly traceable to the difference in the size of the blocks affected. The actual benefits afforded were within the province of the commissioner of assessments to determine, and I am not disposed to disagree with the result reached upon the record before me. The report will be sent back for correction of the awards as noted in this memorandum, to the end that compensation may be made to non-abutting owners for the taking of their easements. In other respects the objections are overruled. Ordered accordingly.