In re West One Hundred & Seventy-Seventh Street

SCOTT, J. In this proceeding for the opening of 177th street, .the controversy brought up by the appeal from the order of confirmation is between the owner of a portion of the bed of the street and the owner of abutting lots on .both sides of the street. By the resolution of the board of estimate and apportionment authorizing the opening of the street, it was ordered that the whole cost and expense of the proceeding should be assessed upon the property deemed to be benefited thereby. Consequently the owners of the lands abutting upon the street have a direct interest in seeing that awards for the property taken shall be kept as low as is legally possible. The appellant, Portland Realty Company, is the owner of two plots of land, lying on either side of the proposed street, each 170 feet in width and approxi [356] mately 100 feet in depth. These plots lie directly opposite each other, and each commences 100 feet westerly from Amsterdam avenue, and 100 feet easterly from Audubon avenue, thus lying exactly in the middle of the block between Amsterdam and Audubon avenues. On each of these plots are erected four tenement houses. The respondent Meyer A. Bernheimer is the owner of the bed of the street between and in front of the two plots above described. The .commissioners of estimate have made a substantial award to Bernheimer. The appellant insists that Bernheimer has so incumbered his title with easements for street purposes in favor of the abutting property that he now owns only a barren, naked fee for which no more than nominal damages should be allowed. Prior to May 31, 1905, the premises in question constituted a part of a larger tract belonging to the New York Juvenile Asylum, which conveyed it to one Wesley Thorn, who, in turn, on June 1, 1905, conveyed it to Leo M. Klein and Samuel Jackson. By conveyances executed successively by Klein and Jackson and the Elm Realty Company, one Sigmund Wechsler became on June 2, 1905, the owner of a plot of land 170 feet in width, equidistant from Amsterdam and Audubon ávenues and extending from the middle line of the block between 177th and 178th streets on the north, to the middle line of 176th street on the south. This plot embraced the property involved on this appeal. On June 8, 1905, the respondent Bernheimer (who had not yet acquired title) made a contract to sell to David Perlman and Abraham Bernikow so much of the plot, last above described, as lay outside the lines of 176th and 177th streets; the description being carefully so worded as not to include any part of either of said streets. At the same time Perlman and Bernikow contracted to erect on said premises twelve tenement houses, four on 176th street and four on each side of 177th street, and to convey the lots and houses back to Bernheimer, and he agreed to purchase them. On June 12, 1905, Sigmund Wechsler conveyed the whole plot to Bernheimer by a description which included the bed of 177th street. On June 20, 1905, Bernheimer conveyed the property to Perlman and Bernikow by a description which excluded the bed of 176th and 177th streets, and on June 30th Perl-man and Bernikow by the same description conveyed the property to the appellant here, the Portland Realty Company, and on November 14, 1905, Bernheimer, by the same description, quitcl¿imed any interest he might have in said property to the appellant. In the contract of sale to Perlman and Bernikow, and in the deed to them, and in the quitclaim deed to this appellant, Bernheimer was careful to insert the following clause: “It is expressly understood that no right, title or interest of the party of the first part in the said strips of land so laid out and designated as 176th and 177th streets, is conveyed or affected by the foregoing description, and that the land within the lines of said streets, and any award which may be made for same, are hereby reserved to the party of the first part.” The buildings to be erected on 177th street pursuant to the contract between Bernheimer and Perlman and Bernikow were not completed [357] within the contract time, and Bernheimer never took title to them. He remains, however, the owner in fee of the bed of 177th street opposite said buildings. It does not appear that he owns the bed of the street either east or west of these buildings. At the time of the contracts between Bernheimer and Perlman and Bernikow, official maps, showing the proposed location of 176th and 177th streets, had been adopted and filed; but these proceedings had not been begun. The land was used for purposes of passage, however, and the laying of gas and water pipes had begun. The appellant makes no claim to any award for any interest in the street, conceding that Bernheimer is the owner in fee and entitled to the whole award, if any is made. Its only claim is that the award to Bernheimer should be merely nominal. The sole question to be determined is whether or not Bernheimer granted to Perlman and Bernikow, as an incident to and appurtenance of the lots conveyed to them and bounded on 177th street, an easement to use 177th street, the fee of which he retained, for street purposes. No such easement was expressly included in the deed, and if it was granted at all it was by implication. “Whether a grant of an easement arises from implication in a grant of real estate depends upon the intent of the parties to the grant, and in construing the grant the court will take into consideration the circumstances attending the transaction, the particular situation of the parties, the state of the country, and the state of the thing granted, for the purpose of ascertaining the intention of the parties.” Matter of 116th Street, 1 App. Div. 436, 37 N. Y. Supp. 508; Matter of Brook Ave., 40 App. Div. 519, 58 N. Y. Supp. 163; United States v. Appleton, 1 Sumn. 500, Fed. Cas. No. 14,463. And it is not essential that the incidental use of the property retained for the benefit of the property conveyed should be actually exercised by the grantor at the time of the grant. It is sufficient that it is open and visible and reasonably necessary to the full enjoyment of the demised premises. Simmons v. Cloonan, 81 N. Y. 557. When we come to consider the particular circumstances attending the sale from Bernheimer to Perlman and Bernikow, it seems impossible to assume that either party to the conveyance had any other idea than that the purchaser should have the use of 177th street in front of the premises conveyed for the usual street purposes. That street had been laid out on the city map and thus predestined to be acquired and opened as a public street. It was no longer inclosed or subjected to any private use, but was used by the public as a means of access to the lots on either side of it. The pipes and conductors commonly put under the street surface were being put in; Bernheimer himself putting in a sewer pipe. By the agreement made by Perlman and Bernikow which was cotemporaneous with Bernheimer’s contract to sell, both properly being read together, Perlman and Bernikow were to erect four tenement houses on each side of the proposed street. Unless the street was to remain open for light, air, and access, these houses, which were apparently to cost a large sum of money, would be absolutely valueless. [358] Surely it cannot be successfully urged, under these circumstances, that Bernheimer could have covered the bed of the street- in front of the houses with buildings, or could have, cut off the street at each end of his ownership of its bed with an impenetrable fence, so that no one could gain access to the houses, which were in the' middle of the block and could be reached only through the street. Both parties to the grant understood, and must have had in mind when the grant was made, that the land was sold for the purpose of having houses built thereon, and that it would not be available for that purpose unless the grant carried with it the necessary incident of a right to use 177th street, in so far as Bernheimer; by his ownership of the bed of -the street, could convey that right. It is not important or controlling that Bernheimer did not own the ends of the street, and could convey no right over them, for, as has been said, the ultimate opening of the street by the city was predestined and practically, inevitable. The deed from Bernheimer to Perlman and Bernikow, shows that it was made for a substantial consideration, and it is no more than reasonable to assume that that consideration was fixed in view of the fact that the property abutted upon a street, the use of which would make it available for building purposes. It is inconceivable that the grantees would have undertaken to build eight tenement houses in the middle of a plot of land with no outlet in any direction. If the fact that the houses were to front on a street entered into the agreement as' to the consideration, the value of the street easements to the property conveyed must be deemed to have been included in the consideration, and it is certainly inequitable that Bernheimer’s grantees, or their successors in interest, should be again called upon to pay a large sum for the right to use the street. The cases are probably rare, in respect to urban properties, wherein an owner of a large plot of land through which the city runs streets should be awarded for the land taken for street purposes a sum commensurate with the value of the lots abutting upon the street when opened. Without the streets the property is incapable of adequate improvement. With the streets opened, the property not taken for street purposes at once becomes available for improvement and increases largely in value, and thus the owner of the tract realizes at least a large part of the value of the property taken for the street by the enhancement in value, in consequence of opening the street, of that which remains. The authorities relied on to sustain the order appealed from all arose under very different circumstances from those present here, and serve but to illustrate the rule that the question whether or not easements are impliedly granted depends in each case upon the particular facts of that case. The only doubt as to whether or not Bernheimer included a grant of easements in his deed arises from the specific reservation which he inserted therein. That, however, was only a reservation of title, and was not as we construe it, intended to derogate from the grant. It was apparently inserted for greater caution, perhaps in view of Matter of Eleventh Avenue, 81 N. Y. 436, to make sure that he retained the right to receive the whole award that might be made for [359] the bed of the street. That, however, had no bearing upon what the amount of that award should be. The appellant does not question B'ernheimer’s right to receive the award; they only question its amount. The commissioners have awarded him the full value of the land as if free from any easement in favor of the abutting property. In our opinion this was an erroneous basis for valuation. The award should have been for the value of the land subject to easements, in favor of the abutting property on both sides of the streets, for the use of the land taken for street purposes. This would doubtless mean a nominal award. Matter of Decatur Street, 196 N. Y. 286, 89 N. E. 829. The order, in so far as it is appealed from, should be reversed, the motion to confirm denied, and the matter remitted to the same commissioners to revise their awards and assessments in accordance with the views herein expressed. MCLAUGHLIN and CLARKE, JJ., concur.