In re Mayor of New-York

At the last February term, a report of commissioners of estimate and assessment relative to the opening of this street, having been presented to the court, and a motion made for . „ . . . . . . , , . its confirmation, objections were interposed by sundry persons» ownl'ng lots fronting on the street, who claimed, that as SUch owners, they were entitled to the compensation allowed for the ground to be occupied as such street, and that ^ie same ought not to have been awarded, as by the report it was awarded to owners unknown. Seventeenth street is one of the streets designated by “ the commissioners of streets anc¡ roads in the city of New-York,” who were appointed by an act of the legislature, passed 3d April, 1807; by which act> <-he commissioners were authorized to designate the g¡te 0f streets, to be opened in the future progress and im- ’ . „ . , . . , . provement of the city. Such designation, however, does not constitute or create the street, so that it can be used as a street, until the proceedings are had which are now sought r o — 263 — to be confirmed, and such proceedings are approved by this court. The late William Bayard, of New-York, was the owner of a tract of land lying between the Warren and Fitz■xoy roads, which ran in a north-easterly direction from the Southampton road, and through which tract, three streets, viz. Fifteenth, Sixteenth and Seventeenth, were designated by the commissioners under the act of 1807, to be laid to run in a southeasterly direction from the Fitzroy road to the Warren road. In 1823, Mr. Bayard having had a map made of his tract, on which were laid down the streets as designated by the commissioners, caused the same to be opened in conformity to such designation, and sold a number of lots to the persons who now object to the confirmation of the proceedings of the commissioners of estimate and assessment, and executed deeds to them. The following is a sample of the manner in which the premises are described in the deeds, viz.: “ Fourteen lots of ground in the ninth ward of the city of New-York, known and designated oil a map caused to be made by the said William Bayard of a tract of land owned by him, as lots nos. 37, &c. bounded as follows : Northerly by Seventeenth-street, easterly by lots laid down on said map as lots no. 44 and 61, southerly by Sixteenth-street, and westerly on the other side by the Fitzroy road ; the said lots containing together 180 feet six inches on Seventeenth-street, on the easterly side 183 feet eleven inches, on the southerly side, fronting on Sixteenth-street, 175 feet,- and on the westerly side or Fitzroy road, 184 feet, be the same more or less.” The deeds were with full covenants, and conveyed all and singular the tenements, hereditaments and appurtenances whatsoever to the premises belonging. There are 32 lots fronting on Seventeenth street, all of which, except two, were sold and conveyed by Mr. Bayard, subsequent to the time of his causing the street to-be opened as aforesaid. It was proved that Mr. Bayard frequently declared, that the persons who purchased lots from him were to have all his interest in the streets, and would never have any thing to pay for the streets designated upon his map, as they were already open, and in consideration thereof, the purchasers paid an — 264 — enhanced price for the lots. On the 30th July, 1827, the corporation of New-York directed Seventeenth-street to be opened, and commissioners of estimate and assessment having been appointed, they proceeded to the discharge of their duties, and estimated and assessed the loss and damage which would be sustained by the owners of the ground required for the opening of the street, at $-, and assessed the same upon the owners of the lots fronting upon the street, about $170 upon each lot, and upon the owners of other lands, conformably to the directions of the statute relative to the opening and laying out of streets in the city of New-York. The report and objections to the same were submitted to the court on written arguments. Arguments for the objectors. There must be some strong and express words of exclusion, or the interest of the owner of the adjoining land, in the highway on which it is bounded, will pass by a deed of the land. In Jackson v. Hathaway, (15 Johns. R. 447,) it was admitted in the opinion of the court, that where a farm was bounded along a highway, or upon a highway, or running to a highway, there was reason to intend, that the parties to the deed meant the middle of the highway. There is equal reason in the present case, to intend that the parties meant to go to the middle of Sixteenth and Seventeenth streets, when they described the lots as bounded northerly by Seventeenth-street or by Sixteenth-street, or on Seventeenth-street or as fronting on Sixteenth-street, and especially as the appurtenances were conveyed, and the limits were to be reached, be the dimensions more or less. This case is submitted as great authority for the doctrine, that a grant of land always carries ex vi termini the fee in the-highway on which it bounds, and that it would require at least very express and decisive proof of an intention to retain it in the grantor, before any deed will be so construed. If the deed can receive any other reasonable construction, even an apparent reservation of the highway would not be sufficient. The cases of deeds and patents bounded upon fresh water streams, afford a strong argument in favor of the claim to the street; for the principle is the same in the two cases, and the analogy is perfect. A fresh water stream, if navigable at all, is generally a public highway. It is settled that where a person’s land abuts upon or adjoins a river above tide — 268 — water, he owns the river to the centre of the stream, and it wou](j require an express and unequivocal reservation in the granh to prevent it. In Claremont v. Coulton, (2 N. Hamp. 369,) the lot bounded on Sugar river, and the court observed, that when a stream is mentioned as a monument, it is used as an entirety to the centre of it, and there the right goes. A variety of cases are cited to the same effect, in the interesting and learned note of the reporter in 6 Cowen, 544, and they demonstrate that if the grantee be bounded on a river, (no matter in what mode of expression,) he goes, ad medium jilium aquae, without decided language, shewing a manifest intention to stop short at the bank or water’s edge. M'Ulshoeffer, for the corporation, insisted that this case "was not distinguishable from that of Mercer-street, (4 Cowen, 542,) in which the court refused to confirm the report of the commissioners, they having allowed only a nominal compensation to the owners of the fee of the street, on the ground that they had conveyed the lots to purchasers bounding them on Mercer-street, as in this case on Seventeenth-street; the court holding that the claimants were entitled to compensation, without regard to the supposed easement or right of way claimed by the purchasers of the lots. [Not having been furnished with a copy of the argument submitted by the learned attorney for the corporation, the reporter regrets that he is not able to lay the same before the profession.] At the May term, the opinion of the Court was delivered by Savage, Ch. J. as follows : A motion being made for confirmation of the report of the commissioners of estimate and assessment on opening Seventeenth-street, objections are interposed by sundry persons owners of lots, because they are assessed to pay for the street in front of their lots, as belonging to owners unknown; Whereas they claim to be the owners by virtue of their purchase of lots upon the street. The facts are, that the late William Bayard was the owner of about eight acres of ground, in the village of Greenwich, in the city of New-York, which he caused to be surveyed into — 269 — lots upon the streets and avenues, designated by “ the coin-missioners of streets and roads in the city of New-York,” appointed by the act of the 3d April, 1807. In the spring of 1823, he caused the streets to be actually laid open, as streets, and appropriated to that use, and sold the lots now owned by the objectors, with the exception of two lots, which were sold previous to such actual opening of the streets. The conveyances are in the usual form granting the lots. Nothing is said about the streets, except that the lots are bounded upon them ; but it appears from other testimony that there was a full understanding between Mr. Bayard and the purchasers, that they were not to pay any thing for the streets. The commissioners proceeded upon the ground, that as the conveyances of the lots contained no grant of the contemplated street, nor any interest therein, the title therefore had never been divested, and consequently remained in the heirs of Mr. Bayard. A this term, a corrected report of the commissioners was brought into court, from which it appeared that the assessment was reduced to $600, about $12 per lot, and that such sum was allowed for the fee of the land, subject to the right of — 272 — way of the owners of the lots fronting on the street. Fur(jler opposition was made to the report, but it being in conformity to the principles of the decision made at the last tevm’ when the report was sent back for correction, and the amount assessed being only nominal, the-court confirmed the same.