MOTT v. ENO

GRAY, J.

The statement of facts has been necessarily long, in order that the situation with respect to Bloomingdale road, as affected by legislation and by legal proceedings in the past, and the nature of the present claim of title to its roadbed, may be better understood. That the case is one of great importance is manifest. It is of interest; because it concerns the principal thoroughfare of the city of New York which has existed, either, as a country road from the time of the Dutch occupation to the beginning of the 18th century, or as the important public highway, which was laid out by commissioners under the Colonial Highway Act of June 19th, 1703. It is attended with some difficulty, by reason of the absence of early records, pertinent to its laying out.

The theory of the plaintiffs, and one which has been sustained in the courts below, is that the title to the fee of the land in Bloomingdale road and in Broadway, as it came to be known, was, originally, in those who were the owners of the land at the time of the laying out of the road under the act of 1703, and that it continued to be in them, and in their successors in interest, down to the closing of the road in 1869 and the abandonment by the city of New York of the land in question as a part of the street.

The objections to the claim of the plaintiffs, upon the facts, seem to resolve themselves into two classes. In the first class are to be found those that rest upon the acts of the legislature of this state, which were passed in 1787 and in 1847; which, either, effected an appropriation of the fee of the land to the city of New York for a public road, or street, or authorized the municipal authorities to acquire, by legal proceedings, the fee for such a purpose. In the second class are the objections that the claim of the plaintiffs, if it existed prior to 1847, was barred, either, by the legal proceedings had under the act passed in that year, in relation to the Bloomingdale road, or as the result of the partition suit, which was instituted in 1863 between the Hopper devisees and their heirs.

I shall assume, as sufficient for the purpose of the discussion, that the status of the Bloomingdale road, as a public highway, was first established in 1707 by a certificate of that date, filed by commissioners appointed for the city by the Colonial Highway Act of 1703. ( Holloway v. Southmayd, 139 N Y at p. 399.) The termini of that road, as thus laid out, appear to have been from about where 16th street now is to about the present 114th street. The act of 1703 provided that the highway laid out thereunder should be "forever of the breadth of four rods;" but, in 1751, an act of that year provided that the road should be reduced to two rods in width. In 1787, when the colony had become the State of New York, the legislature passed "An Act for the better regulating the public roads in the City and County of New York." The mayor, aldermen and commonalty of the city of New York were appointed commissioners to alter and widen roads already laid out to the width of four rods, so as "to make them passable for horses and carriages." At that time, John Hopper, Junior, grandson of Matthias Hopper, who, in the beginning of the 18th century, was the owner of the farm, had become, by an agreement of partition between himself and the other heirs of John Hopper, Senior, made in 1782, vested with the title to the lands on either side of Bloomingdale road; between which, as a part of the roadbed, the premises affected by this suit lay. I shall assume that his title, through the voluntary partition of the property, and under the will of his father, which authorized it, extended to the bed of the road and the question then is whether the act of 1787, or any proceedings taken under it by the city, operated to divest that title. It was held below that it was not divested. The act of 1787, by its language, hereinbefore given, provided that, in widening any public road to the legal width, the commissioners should take the necessary land and that, in the event of failing to agree with the landowners upon a "reasonable satisfaction" therefor, the damages should be assessed by a jury, in condemnation proceedings, according to the respective interests and estates of the owners in the land taken, and that payment thereof should be binding thereafter. The referee finds that Bloomingdale road was actually widened to the width of four rods between 1782 and 1819, but that it does not appear at what time, or by what authority, it was so widened. While that is true, the presumptions from what facts are proved point conclusively to a widening of the road having been effected under the provisions of the act of 1787. The Bancker map of 1782 shows the road to have been two rods wide. The Doughty and Randel maps, filed in the years 1819 and 1820, show that the road was then about four rods in width. We find upon record a resolution of the common council, passed in 1793, ordering the opening of the road to the legal width of four rods and appointments of committees to effectuate the purpose were made then, and in later years. We find, in 1795, from the minutes of the common council, that Nicholas De Peyster and others had released the lands necessary for the widening of the road to the municipal corporation, and that, in the cases of two persons, who had refused to release for the purpose, their lands, in proceedings in the Mayor's Court, as authorized by the act, had been condemned by the municipal authorities. These records relate to lands to the northward of the premises in question and other records appear to be lacking to evidence, fully, the proceedings, which the city had taken under the authority of the act; but, meagre as are the facts, I consider them to warrant a presumption, amounting to a certainty, that Bloomingdale road was widened pursuant to the authority contained in the act of 1787. Whether, however, we may say that the city, legally and duly, acquired the fee of the Hopper land in the road is rendered doubtful by the absence of legal proof. So far as the statute is concerned, it, undoubtedly, conferred the authority to acquire the fee of the land required for the roadway through condemnation proceedings; but that the fee was so acquired from John Hopper, Junior is not proved and, perhaps, is incapable of legal proof. The statute does not, necessarily, appropriate the fee of the land for the purpose of a street and the object in view may have been attained by the city through the acquisition of a public easement. I consider that the presumption is conclusive, upon the facts, that the road was widened to four rods by proceedings under the statute; but I doubt that the presumption is equally conclusive, upon what facts are known, that the fee of the additional land required for the purpose was, in all cases, legally acquired. The general rule is that when the language of the statute will bear a construction which will leave the fee in the landowner, that construction will be preferred. If the title to land in the bed of a highway depends upon presumptions, the general rule seems applicable that only an easement was taken. (Elliott on Roads and Streets, § 227; United States v. Harris, 1 Sumner's Reports, 21; Washington Cemetery v. P.P. C.I.R.R. Co., 68 N.Y. 591.) The case of Blackman v. Riley, ( 138 N.Y. 318), does not settle the matter; because, in that case, the question was with reference to the width of Bloomingdale road in 1809, when the deed there under consideration was made. It was held that there was no evidence upon which to find that the widening to four rods was effected prior to 1820 and, consequently, as the plaintiff had failed to establish the fact that the premises formed a part of the roadbed when the deed was executed, he had failed to prove title thereto. But in Deering v. Reilly, ( 167 N.Y. 184) where the title to a part of Bloomingdale road, which was closed in 1867, was in question, some doubt is thrown upon the nature of the title acquired by the city, under the proceedings for extending the road, which were had between the years 1791 and 1795. The land in question in that action was formerly owned by William Molinor, one of the two persons heretofore mentioned as having been proceeded against by the city authorities in condemnation proceedings, in the Mayor's Court, by reason of their refusal to release their lands. It was observed in the opinion that the effect of the "proceedings to continue and extend Bloomingdale Road over Molinor's lands was to create an easement over them for use by the public as a highway." It is true that it had been stipulated in the case that the city, by its proceedings, "obtained only a right of way over the land taken" and that the observation in the opinion was not necessary to the decision; but, nevertheless, it was based, somewhat, upon a consideration of the proceedings and of the provisions of the act of 1787, as well as suggested by the general rule of construction in cases of the taking of lands for highway purposes. Therefore, while recognizing, at this time, the force of the more elaborate argument that the act of 1787 provided for the taking of the fee of the roadbed, I am not prepared to say that the referee was in error in determining, upon the evidence, that it was not shown that John Hopper, Junior, was divested of the fee in the land constituting the bed of Bloomingdale road. So far as the defense to the claim of the plaintiffs is made to rest upon the divesting of the fee in the land through the operation of the Act of 1787, or through what proceedings may have been had thereunder, I am of the opinion that the evidence affords an insecure ground.

But when we turn to the act of 1847, (Chap. 203, Laws of 1847), the situation becomes clear and it is evident, not only, that that act appropriated the lands described therein for a street, (which included that part of the Bloomingdale road), vesting in the city the fee of all lands required to be taken, but that the result of the proceedings under the act was to determine that the only lands, within the appropriation, for which compensation should be awarded, were those which were taken from abutting owners and added to the existing road, or street. No claim, nor pretext, appears in those proceedings that the city did not own the old roadway.

The act of 1847 was entitled "An Act to lay out a new street in the 12th ward of the City of New York and to keep open a part of Bloomingdale Road." In its first section is contained a description, by metes and bounds, of a large parcel of land, which includes all of the Bloomingdale road, between the 7th and 10th avenues, and the same is " declared for all legal purposes to be one of the streets of said City, in like manner as if the same had been laid out by the commissioners, appointed in and by an Act entitled `An Act relative to improvements, touching the laying out of streets and roads in the City of New York and for other purposes,' passed April 3d 1807." Its only other section provided for the naming of the street by the common council. Chapter 86 of the Revised Laws of 1813, commonly known as the "Street Opening Act," had provided the methods and procedure for the opening of "any street, avenue, square, or public place" laid out by the commissioners under the act of 1807, whenever the municipal authorities were desirous of doing so. By force of its provisions, the fee of the lands condemned for streets, etc., was to vest in the city, in trust to be held for a public street, etc. The act of 1807 provided for the laying out of the city in streets, avenues, public places, etc., and required compensation to be made to the landowners for the lands taken; upon payment of which, when agreed upon, or as ascertained in legal proceedings, the city should be seized in fee thereof, and the act of 1813 provided for the appropriate procedure in such cases. This latter act and its various amendatory acts have since furnished the legal machinery in all cases of street openings, and it has been held with respect to it that "language could not more plainly indicate the intention of the legislature that every question connected with the estimate and assessment, everything that could in any form be litigated before and passed upon by the commissioners, should be finally and conclusively determined by the Supreme Court." ( Matter of Commissioners of Central Park, 50 N.Y. 493.)

The act of 1847 was imperative in appropriating the lands it describes for the city street and, necessarily, vested the city with the fee; leaving those persons, who had title to the same, or interests therein, to recover compensation therefor from the city in ways provided by law. (See Donnelly v. City of Brooklyn, 121 N.Y. 9 and Sage v. Same, 89 ib. at p. 197.) Words cannot more strongly express the absolute appropriation of land to constitute the proposed street, than do those of this statute and to hold that its terms are satisfied by the taking of an easement, in my opinion, would be to accomplish a great, if not a singular, perversion of its expressed purpose. The right to appropriate lands for the public use has always resided in the legislature of the state and the extent of the appropriation, in the case of a highway, or of a street, whether of a public easement therein, or of the fee, is to be determined by the language used and upon a consideration of the need to be supplied. ( Brooklyn Park Com'rs v. Armstrong, 45 N.Y. 234; Spears v. Mayor, etc., of N.Y., 87 ib. 359.) This act was a valid exercise by the state of its right of eminent domain upon the lands described and the constitutional requirement of compensation was satisfied, in the existence of a certain, and an ample, remedy, through resort to which the landowners could obtain compensation from the city for their damage. If, therefore, the Hopper estate had any interest in the land described in the act, it was appropriated to the city and the estate was divested thereof. But, further, the decree, which confirmed the proceedings instituted by the city to lay out the new street under the act of 1847, in my opinion, operated in either of two ways. It, either, amounted to an adjudication against the existence of the title now set up by these plaintiffs; or, it operated to bar any claim on the part of those in whom it may have been and of their successors in interest. The proceedings leading to the decree were instituted by the city upon a petition to the Supreme Court, which was expressly based upon the provisions of the Street Opening Act of 1813 and of its various amendatory acts. It alleged that the common council had "deemed it advisable for the public convenience to open the Bloomingdale road from the Seventh Avenue to the Fourth Avenue in the Twelfth ward of the said City, the said Bloomingdale Road being a street in that part of the said City laid out etc. * * * by virtue of an Act entitled etc. — (here reciting the title of the act of 1807), — by taking for that purpose the lands and premises hereinafter described, * * * situated and bounded as follows etc." The description of the lands is then given in the same terms as in the act of 1847. Edward Sandford, as trustee under the will of John Hopper, Jr., was vested with the legal title to whatever there was of that estate. Commissioners were appointed by the court, who, in due course, made their report, after having given such public notices as were required by the law. They reported that the Bloomingdale road was a street of the city, as alleged in the petition, and their maps showed it, by metes and bounds, as a portion of the land appropriated by the act; designating it as the "present road." They awarded damages for 123 parcels of land, which were taken under the act for the making of the new street from each side of the Bloomingdale road; the title to two of which between 52d and 53d streets was in Sandford, as trustee. As to those two parcels, they reported the fee to be in him and they assessed the damages for the taking at certain sums; the trustee's receipts for the payment of which were evidenced in books produced from the proper municipal custody. As to the lands, which lay within the boundaries of the Bloomingdale road, the commissioners made no awards for damages and it is argued for the plaintiffs that, it having been made by the statute their duty to make awards for all lands taken, their failure to do so for those in the old road left the title undisturbed. The argument is, in my opinion, untenable. The commissioners had to act, in effectuation of the purpose of the statute, as well upon what they term on their map the "present road," as a part of the land appropriated, as upon the rest of the lands, in ascertaining to whom compensation was to be made for lands taken. When they reported to the court that damages should be awarded only for the pieces of land taken from abutters upon the old road, it was an inevitable, and a logical, inference that they had determined that, as to those lands only, was the city obligated to make compensation. It amounted to a finding that the city already owned the rest of the particularly designated tract of land, which the act appropriated for the new street. It seems to me that it is quite difficult of belief, and it is most unreasonable to assume, that the commissioners confined their determination to those parcels, or strips, taken from the adjoining lots.

The case of Speir v. Town of New Utrecht, (49 Hun, 294 and 121 N.Y. 420), which counsel refer to, differs, materially, from this case. In that case, it is true that no awards were made for the land in the old road, but only for lands, which lay outside thereof and within the line of the new avenue, and that it was held, in consequence, that there was no adjudication binding upon any one as to the title to the land in the old road. But we held, proceeding upon a discussion of the proofs, that the old road had never been laid out as a highway and that it had not become such by dedication, or by user. As it is, pertinently, pointed out by counsel, in answer to the argument upon that case, the resolution, under which Cropsey avenue, there in question, was opened, provided that, upon the confirmation and filing of the report of the commissioners, " the lands for which award shall have been made, shall thereupon vest in the town," etc. The differences in the cases are well marked. In the first place, the act of 1847 appropriated, with others, the lands in Bloomingdale road to the city for a street and declared the same to be one of the streets of the city in like manner as if laid out under the Act of 1807; which act required the land to be paid for and the city to be seized in fee thereof. Then, the petition, which instituted the proceedings under the act, not only, alleged the road to be a street of the city; but it proposed to take for the street certain lands, which were described in the petition and which included the land in the old road. The commissioners reported that the Bloomingdale road was a street of the city, laid out under the act of 1807, and their report was confirmed by the court. Thus the land was adjudged to have been a street of the city. No award of damages by way of compensation for the interest taken in the land was called for. The city was taking its own property, with that of others, for the purpose and I think that no useless ceremonial of some nominal award was essential to the finality of the condemnation. The city was the only one to object that the commissioners had made no award as to its property. In principle, the decision in Matter of Opening of Eleventh Avenue, ( 81 N.Y. 436), applies; the difference being that there nominal damages had been awarded. I conclude, therefore, that, in determining what lands, of those described in the act, must be paid for, the commissioners acted within the prescribed lines of their duties and that the confirmation of their report upon the questions before them, by the Supreme Court, was a determination upon such questions. That their awards, as to the persons who were entitled to compensation for the lands taken, were, as a general proposition, not necessarily final, does not concern the question before us. The proceeding was upon notices published as required by the law and an opportunity was afforded for all parties in interest to be heard. Sandford, as trustee for John Hopper, Junior's, will, solely, represented the legal interests of that estate. He was notified and he was the only one who could be summoned. He did not file objections; but accepted from the city the moneys awarded for the taking of a portion of the estate lands. His acts were binding upon those, who had interests in the estate in remainder; whether those acts were of an affirmative, or of a neglectful character; in so far, certainly, as the rights of third persons are concerned. ( Bennett v. Garlock, 79 N.Y. 302, 321.) It will be presumed that the moneys were duly accounted for, which he received from the awards, and it does not appear that any objection, or claim, has been made by those interested in the Hopper estate until this late day.

Very considerable stress is laid by the plaintiffs' counsel upon the invalidity of the proceedings, consequent upon the act of 1847, by reason of defective compliance with statutory requirements in cases of the taking of lands in invitum their owner and of the absence of sufficient evidence to show the confirmation by a decree of the court. At the Appellate Division these technical objections met with no favor and were but slightly discussed in the prevailing opinion. I think it necessary to refer to but one of them, briefly. The referee found that "no order, or rule, of court, confirming the report of the commissioners, has been found;" but, in the finding, he goes on to state a number of facts, which sufficiently establish that there had been such an order of confirmation. From this secondary evidence it appeared that there was upon the cover of the report, on file in the county clerk's office, this indorsement: "The foregoing report of the commissioners confirmed by the Supreme Court in General Term, March 31, 1849. James Connor clerk." Connor was county clerk at that time, but the handwriting was not identified. In a record from the office of the commissioner of public works, entitled "Assessment ledger C. Openings. Street Commissioner's Office," and under the heading therein, "Broadway opening from 7th to 10th Avenue," is a summary statement of assessments and awards and the entry: "Confirmed by the Supreme Court, March 31, 1849. Ordered open by the Common Council, August 1, 1849. Awards payable December 1, 1849." In another record, produced from the bureau of collector of assessments and arrears, are entries to similar effect. In four of the daily newspapers of the city were publications of notices, between March 31st, and April 2d 1849, to the effect that the report had been confirmed by the General Term of the Supreme Court. On July 12th, 1849, the board of aldermen passed a resolution to the effect that "the actual widening of Bloomingdale Road between 7th Avenue and 10th Avenue would take place on August 1st, ensuing" and a collector was appointed of the assessments laid. As the order itself could not be found in the custody of the clerk, it was proper to prove that it had been made by such facts, as the best evidence of which the case was capable. ( Fisher v. Mayor, etc., of N.Y. 67 N.Y. 73, 77.) The inability to find the order did not prove its non-existence and the proof of these facts conclusively showed that it had been made by the Supreme Court. Any presumption founded upon the inability to produce, or to find, the order itself was sufficiently rebutted. Indeed, the Appellate Division, in its order of affirmance, reversed the referee on this point and makes the special finding that the facts showed an order of confirmation to have been made. In the public interest, I think that what slight evidence has survived, from a more or less remote period, of the records of courts should be accepted and relied upon. (1 Greenl. Evid. § 509.)

Finally, the decree in the partition suit, which was instituted in 1863 by Garrit H. Striker, in which were joined all parties having interests in the farm of their ancestor, John Hopper, Junior, is an effective bar to the claim in this action and estops these plaintiffs from asserting that the whole of the Hopper estate was not actually partitioned and disposed of. The complaint in the suit described, each by metes and bounds, 28 lots, or parcels, of land as constituting the farm of which John Hopper, Junior, was seized at the time of his death. It makes reference to a partition attempted in 1820, upon the death of John Hopper, Junior, by an action in the Mayor's Court of the city, between his devisees, who were his three grandchildren. The judgment in that action made partition and allotted to Ann Striker one-third of the lands of the testator; which, (assuming that the estate owned the fee of the roadbed), included that part of Bloomingdale road in which lay the premises in question. It was, subsequently, held that the testator had created trusts for the lives of his devisees; that the trustees held the legal title and that the partition proceedings and the mutual releases executed as to the lands set off were ineffectual; but effect was given to what had been done, to the extent of holding that the partition settled the share of each grandchild in the rents and profits. ( Brewster v. Striker, 2 N.Y. 19 and Striker v. Mott, 28 ib. 82.) In 1862 Ann Striker died, unmarried and intestate. Her share became vested in her brother, Garrit H. Striker, and her sister, Winifred Mott. The plaintiffs in their partition action requested, in their complaint, that the earlier interests in severalty, which had been decreed in the suit of 1820, should be recognized and that, in partitioning the estate, allotments from Ann Striker's share, as equitably severed, should be made to her surviving brothers and sister. That was so adjudged and in the partition the premises in question lay in the roadbed between parcels allotted on either side of Broadway to Garrit S. and Ruth A., children of Winifred, whose grandchildren these plaintiffs are. In the complaint, in the partition suit of 1863, the boundaries of the parcels abutting on Broadway are such as to exclude the street. To their description is added, in each case, however, the clause: "together with all the right, interests, claims and demands of the owners * * * in the streets and avenues adjoining the same, by reason of such * * * having been taken, pursuant to the statutes in that behalf made and provided, from such owners to form such streets and avenues." Commissioners were appointed by the judgment to make actual partition; who caused a map to be filed showing the 28 parcels and Broadway as it existed under the opening proceedings of the act of 1847. They partitioned the lots, abutting upon that part of Broadway in question, by their numbers upon the map, followed by a description; which of itself, by following the "side," or the "line," of the streets bounding them, would exclude the bed of the street. Their report was confirmed by a decree; which, repeating the descriptions of the parcels used by the commissioners, vested in each of the parties the premises allotted by the commissioners, as " constituting his, ( or her) share of the said lands and premises." As it was the intention of all parties to partition all of the Hopper lands, in which they were interested, it follows that Garrit S. Mott and Ruth Ann Mott, through whom the defendant derives his title, either, were not entitled to, and did not have, an interest in the land in Broadway, by reason of the fact, (determined theretofore, and accepted), that it was owned by the city and was no part of the Hopper estate; or the description of their allotments in partition must be deemed to have included the roadbed. Either view, it seems to me, disposes of the plaintiffs' claim of title. The latter view was taken by the Appellate Division justices; who held, however, that by the subsequent deeds of these parties, the roadbed was excluded from the grant. If the commissioners' allotments were only of the abutting lots, to which opinion I am inclined, then the plaintiffs' ancestors were estopped from claiming any interest in the street. They acquiesced in a determination in their partition proceedings that there was title to the abutting lots, only, and they could not assert, as against their grantees, that an interest in the street was unpartitioned. If they were estopped, that estoppel operated upon the plaintiffs' claim. But if there was title to the land in the street, upon any theory of the plaintiffs that it had not been divested, we should hold that the commissioners' allotments included the land in the street. Their interpretation is not to be determined, under the circumstances, solely, by the language of the description. Reference may be had to what the facts evidence as the intention of the parties. If they warrant the presumption that it was intended to convey to the center of the street, that presumption will control. ( Graham v. Stern, 168 N.Y. 517.) Such should be the presumption here. The complaint evidences the purpose to partition all of the estate, whether it consist in the lots particularly described, or in an interest in the beds of the streets. There is nothing to justify an inference that the decree in partition left any property unpartitioned. The cases, to which we are referred as holding that a description by metes and bounds excludes the roadbed, are not controlling. It is, unquestionably, a general rule that a conveyance of lands bounded upon, or along, a street will carry the grantor's title to the center of the street and it is founded upon the presumption of an absence of intention on his part to reserve what becomes useless to him. ( Graham v. Stern, supra.) If the grant is restricted by the description, and there is nothing to modify it and to show a different intention, the restrictive words must be allowed to control. That intention, however, may be gathered from what circumstances serve to enlighten the transaction. In this case, the allotments by the commissioners describe the lots by map numbers, as well as by metes and bounds. The suit and the relations of the parties show that what was intended was an actual partition of all of the real estate, without reservation, of which their ancestor died seized. Without the interpretation that the land in the roadbed was included, the partition had been an abortive proceeding. Therefore, the ancestors of the plaintiffs must be deemed to have taken by their allotments to the center of Broadway. If that be true, then, in the conveyances to Field by Garrit S. Mott and Ruth Ann Mott, it will be presumed that they granted what they took by their allotments; for the description is in language similar to that used by the commissioners. In the prevailing opinion at the Appellate Division, it was held that, in the absence of evidence to show an intention in Field's grantors to grant their interests in the road bed, such as existed with respect to the commissioners' allotments, the conveyances will not be interpreted to include them. This is too strict an application of the rule governing descriptive clauses in grants. The descriptive words were practically, if not quite, the same as those used by the commissioners and the same ambiguity exists, in coupling with a description by lot numbers upon the map a description by metes and bounds. In such a case, I think there should, affirmatively, appear some fact, or circumstance, which would justify, if not compel, the presumption that the grantors intended to reserve their interests in the streets. There was none such and the doubt, or the ambiguity, as to the intent of a description by lot numbers and by metes and bounds in deeds, following upon the allotments in partition, should be resolved in favor of a construction that the grantor was conveying all of the interest in, or appurtenant to his ownership of, the land that he had received.

The act of 1869, (L. 1869, chap. 890), requires no discussion in view of what has been held. The defendant's predecessors in title succeeded to the city's interest in the abandoned part of the street, by virtue of the provisions of the act and of his compliance therewith. If any defect in his title exists, it is not for the plaintiffs to object. They must depend upon the strength of their own title for a recovery of the possession of the land.

I have, somewhat imperfectly, discussed the important questions, which have been argued at great length and with great ability. They are complicated and, as I have said, not free from difficulty in their determination; but the conclusion which I, unhesitatingly, reach is that the objections to the plaintiffs' title, so far as they rest upon the provisions of the act of 1847, the proceedings thereunder and the subsequent actual partition suit of 1863, are insuperable.

I, therefore, advise that the judgment appealed from be reversed and that the complaint be dismissed upon the merits; with costs to the defendant in all the courts.

CULLEN, Ch. J. I concur in the opinion of Judge GRAY, except in the view that the proceedings or judgment in the partition action between the Hopper heirs estopped the plaintiffs or their predecessors in title from asserting any claim to the soil of the Bloomingdale road, and in the view that the condemnation proceedings under the act of 1847 operated as an adjudication that the plaintiffs or their ancestors had no title to said road. As to the latter proposition I entirely agree with Judge GRAY that such proceedings were sufficiently proved, my difference with him being as to the effect of those proceedings, assuming them to have been entirely regular. I, therefore, vote for reversal of the judgments below on the ground stated in the opinion of Judge GRAY, that the enactment of the statute of 1847 (Chap. 403) appropriated eo instanti the lands described in it and vested the fee thereof in the city of New York, leaving to the former owners the right to obtain compensation for such appropriation from the city of New York through proceedings therefor authorized by statute. ( McCormack v. City of Brooklyn, 108 N.Y. 49; Donnelly v. Same, 121 N.Y. 9; Magee v. Same, 144 N.Y. 265. ) I desire, however, to add a few words to those expressed by my associate.

It cannot be successfully denied that if the city of New York acquired title under this statute, to the roadbed of the old Bloomingdale road, that title was an estate in fee, for such has been the character of the interest acquired by the city in all its public streets since the statute of 1807 (Chap. 115). The act of 1847, after describing the piece of land taken by metes and bounds, declares the same "for all legal purposes to be one of the streets of the said city." Had the section ended with the words quoted it could not well be disputed that, under the authorities cited, the statute worked a present appropriation of the land; but following these words is the provision: "As if the same had been so laid out by the commissioners appointed in and by the act entitled `An Act relative to improvements touching the laying out of streets and roads in the City of New York and for other purposes,' passed April 3rd, 1807." The act of 1807 provided for the establishment by the commissioners appointed thereunder of a permanent plan for the streets and avenues of the city of New York. It did not operate as a present opening of those streets or a dedication of the land therein to public use, but provided that the municipal authorities might subsequently open streets in accordance with that plan, to which plan those authorities were restricted. ( Matter of Rhinelander, 68 N.Y. 105. ) On this ground the learned counsel for the plaintiffs contend that the sole intention and effect of the act of 1847 was to alter the commissioners' map and enable the city to acquire the lands described in the act if and when it deemed proper. In support of this construction it is urged that many statutes have been enacted since the filing of the map made by the commissioners under the law of 1807, in substantially the same terms as the statute before us, the accepted interpretation of which by landowners and municipal authorities has been that their effect was only to alter the commissioners' plan, not to appropriate the lands, and in this respect we have been referred to Valentine's Laws relating to the City of New York. An examination of those statutes shows that there is no uniformity in their character or phraseology. Some provide that the lands described therein "shall be opened." Such acts plainly contemplate the prosecution of opening proceedings as a condition of the acquisition of title. In many cases the title of the statute would indicate that the sole intention of the Legislature was to change the commissioners' map or plan. In others the direction or authority is to extend or continue certain existing streets without specific descriptions of the land to be taken for that purpose. In some of the cases, such as those relating to the present Lexington avenue (Chap. 101, Laws 1832; chap. 148, Laws 1838) the phraseology of the statute is substantially similar to that in the act before us. There is, however, so far as our research goes, a vital distinction between those statutes and the statutes relating to the Bloomingdale road, including the one before us; that is to say, the Bloomingdale road was an actual, existing and traveled highway at the time of the enactment of the law of 1847, and the description of the lands declared to be a public street include not only the additional lands, but those within the bounds and limits of the highway itself. In the case of the Lexington avenue statutes they were entirely new streets, and it may well be argued that it was intended that such streets should be opened and title thereto acquired by the city only as public needs might require the opening of other streets in the vicinity. The situation with reference to the piece of the Bloomingdale road affected by the act of 1847 was entirely different. There was no new street or highway to be opened; the road was not to be discontinued as a highway until the municipal authorities should at some time in the future deem it proper to open the new street. On the contrary, the legislature determined that the existing road should be immediately widened and as widened not only the additional lands taken, but the soil of the road itself (in which it may be the public theretofore had only an easement) should be vested in the city to the same extent and manner as other actually opened and existing streets. As the city under that statute acquired the fee of the premises in dispute the right of the plaintiff's ancestors was solely to proceed against the city for compensation. Their title to the land in suit had gone and has never subsequently been acquired by them.

The judgments should be reversed and the complaint dismissed.