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In the very well-considered case of Ft. such act contemplating a proceeding in invitum, Wayne v. Bender, already cited, an error of whereby the land would be appropriated, and

not accepted as petitioned by its owners. 10 days was held to be fatal.

[Ed. Note.-For other cases, see Municipal In a large city like New York it is of the Corporations, Cent. Dig. & 1430; Dec. Dig. utmost importance that its officials should be 658.) accurately informed concerning the alleged 4. DEDICATION C5–STREETS. date and location of an accident. Par Dedication of streets was known to the aphrasing the language used by Judge Pound common law as early as 1733. in the Casey Case, supra, it is essential that Cent. Dig. $ 2, 4; Dec. Dig. em 5.]

[Ed. Note.-For other cases, see Dedication, they should know, not only when an accident happened, but also when it will be claimed 5. DEDICATION 53 — STREETS — TITLE

TEE that it happened, and if it should be held

By the common law the fee of land dedicatthat after preparation has been made to meet ed for a street remained in the owners. the claim of an accident on a date stated in [Ed. Note.--For other cases, see Dedication, the notice and complaint, a plaintiff may sud- Cent. Dig. $ 96; Dec. Dig. Om53.] denly on the trial transfer his claim to a 6. MUNICIPAL CORPORATIONS Om658-WIDENdate 8 days later, it is perfectly evident that

ING STREETS-FEE TO LAND APPROPRIATED. the requirements of the statute will have been prescribing or 'requiring the

taking of the fee

Laws 1784, c. 56, as to widening streets not so emasculated that not much virility will be to the land appropriated, and it not appearing left.

that in a particular proceeding it was taken or If it should be thought that this interpreta- sought, an easement constituted the interest

taken. tion of the statute may at times result in

[Ed. Note. For other cases, see Municipal unnecessary hardship to a litigant where an Corporations, Cent. Dig. § 1430; Dec. Dig. Gun amendment of the notice might be allowed 658.) without injury to the municipality, this meth. 7. MUNICIPAL CORPORATIONS O 668—VAULT od of relief rests with the Legislature UNDER STREETS-PERMIT AND FEE. through amendment of the statute.

A city in the regulation and supervision of I recommend that the order and judgment the owner of the fee, to obtain a permit and

a street may require an abutting owner, though of the Appellate Division be reversed, with pay a fee for the privilege of constructing vaults costs in both courts, and judgment of Trial under its surface. Term affirmed.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $ 1444; Dec, Dig. Om



An ordinance requiring an abutting owner

desiring to construct vaults under a street to Judgment and order reversed, etc.

apply for a permit for the privilege, and to state in the application the number of square feet required, and the intended dimensions, and

to pay as a just compensation for the privilege (219 N. Y, 150)

such sum as the licensing officer shall certify to APPLETON et al. v. CITY OF NEW YORK. lege, calculated at the rate of not less than 30

be a just compensation to the city for the privi(Court of Appeals of New York. Oct. 3, 1916.) cents, por more than $2 per square foot of

space stated, furnishes no support for the con1. APPEAL AND ERROR 1095-REVIEW-DE-clusion that the payment is a tax or assessment CISION OF APPELLATE DIVISION.

for revenue. If new findings of fact made by the Ap [Ed. Note.- For other cases, see Municipal pellate Division, and upholding, its legal con- Corporations, Cent. Dig. $ 1444; Dec. Dig. Om clusions, have support in the evidence, its deci- 668.) sion must be affirmed.

(Ed. Note.- For other cases, see Appeal and Appeal from Supreme Court, Appellate Error, Cent. Dig. $84268, 4329, 4330; Dec. Division, First Department Dig. 1095.)

Action by William W. Appleton and oth2. PUBLIC LANDS Ow188 — GRANTS — EXECU-ers against the City of New York. From a


judgment on an order of the Appellate DiviThe executory right of the Dutch sovereign- sion (163 App. Div. 680, 148 N. Y. Supp. ty under the Roman-Dutch law of being rein. 870), reversing a judgment in favor of plainvested with the fee of any part of land granted, tiff entered on a decision of the court at Speby it, which should afterwards be devoted to a street, did not pass to the British sovereignty, cial Term, and dismissing the complaint on though otherwise as to the fee reinvested of any the merits, plaintiffs appeal. Affirmed. part actually devoted to a street before the sovereignty changed.

J. Hampden Dougherty, of New York City, (Ed. Note.-For other cases, see Public Lands, for appellants. Lamar Hardy, Corp. CounCent. Dig. 88 601-611; Dec. Dig. Om 188.) sel, of New York City (Terence Farley, of 3. MUNICIPAL CORPORATIONS Ow658–ACQUI- New York City, of counsel), for respondent. SITION OF STREETS-TITLE ACQUIRED.

A declaration and petition in form a dedication of a street which was accepted cannot be

COLLIN, J. The plaintiffs seek in this ascribed to a proceeding under Colonial Act of action in equity a judgment perpetually re1691, c. 18, whereby the fee would be acquired; straining the defendant from claiming any

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes




estate in or interfering with vaults or vault, at the corner of those streets. Municipal orspaces under the surface of the northerly dinances in force at the time of the construchalf of Cortlandt street in the city of New tion forbade, under a penalty, the construcYork connected with the premises of the tion of a vault in any of the streets of the plaintiffs at the northwest corner of Broad-city without the written municipal permisway and Cortlandt street.

The Special sion and the payment of a sum for each Term awarded the judgment sought by the square foot of vault space occupied. No perplaintiffs, which the Appellate Division re- mission or payment for the vaults has at any versed and dismissed the complaint on the time existed. Ordinances of a cognate namerits.

ture have existed at all times since 1859. In The immediate inducement of the action 1912 the defendant first learned of the exwas the threat of the defendant that unless tent of the vaults, and the proper municipal the plaintiffs procured from and paid the de- authority demanded of the plaintiffs that fendant for a permit for the vault spaces, it they obtain a permit and make the required would deprive the plaintiffs and their ten- payment, and threatened, in case of their ants of the use of them. The plaintiffs as default, to wall up the vaults. Other findsert that the threatened action is unlawful ings will be referred to as they become relebecause they own in fee simple the bed of vant. the part of Cortlandt street in which the The plaintiffs assert that Jan Jansen Davault spaces are.

men was, through the ground brief, vested The Appellate Division and the Special | by the Dutch sovereignty with the fee of the Term are in disagreement in regard to cer- 40 feet of the lands which subsequently were tain of the cardinal facts. There are, how- occupied by the street, which, transmitted to ever, facts found by the Special Term which his successors in title by mesne grants, did the Appellate Division did not reverse. Of not pass from them in 1733 by virtue of the them are the following: The source of the Roman-Dutch law, because the Roman-Dutch title of the plaintiffs to their premises and law had ceased to exist as to it, or by virtue of the claimed fee in the land of the street of the declaration and petition of 1733, and was a grant, of April 25, 1644, by a ground by mesne conveyances such fee is now in the brief of Director General Kieft in behalf of plaintiffs; and that the defendant acquired the States General of the United Nether- in 1788 in the proceeding under the statute lands, to Jan Jansen Damen. Cortlandt of 1784 an easement only in the 10 feet addstreet did not then exist. On or about May ed to the width of the street. The defend25, 1733, the then owners of the land in ant asserts that the sovereign grant to Daquestion, and the owners of other lands, men, in its effect and extent, was defined by filed with the common council of the city of the Roman-Dutch law, under which soverNew York their declaration and petition eignty was revested with the fee of lands which recited that they were possessed of granted by it in private ownership and subcertain parcels of land on the west side of sequently appropriated for a public street Broadway and running from thence to Hud- or highway; that such sovereign right of resons river, and for the improvement of them vestment was property and was transferred, they and "others concerned in the said lands under the capitulation articles of 1664, the by mutual consent and agreement have laid treaty of Breda of 1667 and the treaty of and staked out a certain New Street through Westminster of 1674, to the British Crown, the said lands from the Broadway aforesaid and thence, through royal grant and charto Hudsons River of forty foot in breadth ters, passed to the defendant, vesting in it and called the name thereof Cortlandt the fee of the original 40 feet; and, further, street," and stated that they “therefore that the action of the owners, assuming that hereby declare and make known that the the fee was in them, and the common counsaid New Street so laid out of forty foot cil in 1733 was not a dedication of a street, English Measure in breadth through the and was the instituting of a proceeding unlands aforesaid and called Cortlandt street der a colonial act of 1691 through which the shall forever remain, continue and be a Pub- defendant obtained the fee to the 40 feet; lick Street and Highway in like manner as that the city became vested with the fee of the other Publick Streets of this City now the 5 feet appropriated in widening the are or lawfully ought to be," and prayed street upon its northerly side by virtue of that “their Declaration and Petition may be the authorizing statute of 1784. recorded in the Record of the Common Coun [1] The Special Term by its findings of cil of this Corporation." The common coun- fact and conclusions of law sustained the cil granted the petition. In 1788 Cortlandt assertions of the plaintiffs. The Appellate street was widened, under the Laws of 1784, Division, by the findings of fact as deterchapter 56, 10 feet by the addition of 5 feet mined by it, and legal conclusions based upon each side. The plaintiffs or their prede on them, sustained the assertions of the decessors in title about the year 1859 con- fendant, and reversed any finding of fact. structed, and there has since then existed, made by the Special Term inconsistent with vaults under the beds of Cortlandt street and the findings made by it. In case the new

sion have support in the evidence, we must, , any statutory provisions, the owner of the inasmuch as its legal conclusions are upheld land adjoining a highway, or the lord of the by the facts as found, affirm its decision. manor, is owner also of the soii of one-half Union Trust Co. of Rochester v. Oliver, 214 of the highway, and the owner of the soil of N. Y. 517, 522, 108 N. E. 809.

a highway "has right to all above and under[2] We take up first the question: Did the ground, except only the right of passage for executory right in the Dutch sovereignty of the King and his people," and may exercise being revested with the fee of lands as and all rights of ownership not inconsistent with when devoted to a street pass to the British the public right of passage. Goodtitle v. Alsovereignty? It is neither necessary nor use ker, 1 Burrow, 133; Vestry of St. Mary, Newful to attempt to determine or discuss wheth-ington, V. Jacobs, L. R. 7 Q. B. 47. The er the title of the British Crown to the ter- executory prerogatives, privileges, and rights, ritory of New Netherlands arose from dis- which by virtue of the Roman-Dutch law incovery or conquest, or the cognate question hered in the Dutch sovereignty and which whether the civil law was in force in the were foreign to the British sovereignty and province de jure or merely de facto. “The its common law, did not pass, under the caclaim of the Dutch was always contested by pitulation articles and treaties, to the British the English; not because they questioned | Crown or its representative, the Duke of the title given by discovery, but because they York. The sovereignty of the Dutch was not insisted on being themselves the rightful merged in that of Great Britain. It withclaimants under that title. Their pretensions drew from and became extinct in the terriwere finally decided by the sword.” Johnson tory of New Netherlands. It surrendered to v. M'Intosh, 8 Wheat. 543, 576, 5 L. Ed. 681. the British Crown the public territorial posHistorical research has not weakened the sessions and estate. It did not transfer to accuracy of the statement of Chief Justice the British Crown the Roman-Dutch law or Marshall. We assume, for the purposes of the rights incorporate in the government of this case, that at the time of the execution the Dutch by virtue of that law to seize, and delivery of the ground brief to Damen sequestrate, or escheat any part of or interin 1644 the Roman-Dutch law was in force est in the lands granted by it. The reign of in New Netherlands, that the grant by the the Roman-Dutch law expired in New Nethground brief was with reference to it anderlands (except as left applicable by the cathe correlative rights of the Dutch govern- pitulation articles and treaties to the private ment and the grantee in relation to the grant rights of the Dutch inhabitants), and with were controlled by it, and that the grantee it expired the servitude, dependent upon and was vested with the fee subject to such limi- enforceable only through it, in the lands tations or servitudes as it and the ground granted to Damen. Executory sovereign brief a fixed.

rights springing from that law and enforceThe Roman-Dutch law prevailed in the able only through it ceased to exist as to the New Netherlands at the time of the sover- surrendered territory and the British Crown eign grant to Damen. The Roman or civil had such prerogatives or rights in relation law was its basis, but the government of the to it as the common law of England, modiUnited Netherlands had through their enact-fied, perhaps, by the stipulations of the surments and customs incorporated in it provi. render, gave it. The property right in the sions of their own. A rule of it was that Dutch government to a reversion of the title every sovereign grant was subject to the re- to so much of the lands granted to Damen as vesting in the sovereignty of the absolute ti- became a public street or highway was not tle to any part of the granted lands which a property right in the realm of the common became a public highway. Dunham y. Wil law of England. The common law did not liams, 37 N. Y. 251. By virtue of it, the recognize nor grasp nor uphold it. The BritDutch sovereignty from the time of the grant ish Crown had not the right to assert a tito the time it withdrew from and surrender-tle to Cortlandt street, even as it obviously ed to Great Britain the New Netherlands, would not have had the right to assert title would have become, as the representative of to the lands granted to Damen through sethe people within its jurisdiction, the owner questration or escheat for a cause justifying of the land of Cortlandt street, if appropri- under the Roman-Dutch law, but unknown ated for the street within that time. to the English law. Chicago, R. I. & Pac. Throughout that period the title of Damen Ry. Co. v. McGlinn, 114 U. S. 542, 546, 5 Sup. and of his successors was subject to such Ct. 1005, 29 L. Ed. 270. Such conclusion is regal prerogative.

It was

a prerogative, not inconsistent with our decision in Dunham however, which the Roman-Dutch law affixed v. Williams, 37 N. Y. 251, 253, or our views to the Dutch sovereignty, which depended in other cases harmonizing with that deciupon and which was enforceable only through sion. In Dunham v. Williams, and in those that law. The common law of England knew other cases, the street or highway under connaught of it, had no recognition for it or no sideration was laid out prior to 1664, as we remedy through which it might be grasped have in each case expressly and carefully or enforced. The common law of England stated. The executory sovereign right had, ruled, generally speaking, that, apart from therefore, through the rule of the Reman

Dutch law, become executed and ripened into | Partyes interested in the ground to be so an absolute title and property. That law taken,” and may treat and agree with the had exhausted its office and had created that owners or parties “to the end that reason. which the common law recognized as proper- able satisfaction may be given for all such ty. The Dutch government owned the land ground as shall be taken and imployed for of the street or highway as it owned the the uses aforesaid," or in default of agree vacant or ungranted lands of the province - ing may cause the impaneling of a jury to an ownership and a property cognizable and assess "such Damages and recompense as regulated by the common law of England. they shall judge fit to be awarded to the The ownership of the Dutch government in owners and others interested according to the land of a street or highway was the their severall and respective Interests and same as it would have been had its grantee Estates of any such ground or any part or a successor in his title conveyed to it thereof for their respective interests and Esthose lands. Thus in Dunham v. Williams tates in the same as by the said Mayor Alwe said:

dermen and Common Council shall be ad"The highway having been laid out long prior judged fitt to be converted to the purposes to the capitulation, the title of the government aforesaid." The language of the act does to the roadbed was absolute."

not indicate or suggest that the declaration In Kane v. N. Y. Elev. R. R. Co., 125 N. Y. and petition had any relation to it. It clear164, 26 N. E. 278, 11 L. R. A. 640, the fact ly contemplates a proceeding in invitum in was the same. In Paige v. Schenectady which the land to be appropriated for the Railway Co., 178 N. Y. 102, 110, 70 N. E. public use was to be taken, not accepted as 213, 215, the defendant claimed that Wash- petitioned by its owners, and was to be paid ington avenue was a Dutch street and the for pursuant to an amicable agreement be title to it, therefore, in the public. We de tween them and the municipality, or in denied the claim, and said :

fault of such agreement, to an assessment "Obviously, when Washington avenue became by the jury. The contents of the declaraa public highway, the colony of New York was governed by the English law, under which the tion and petition do not indicate or suggest sovereign did not own the fee the streets or that it has any relation to the act. The highways, but only an easement upon the land land described by it is, in form, dedicated to over which they extended. law of England, the title to the land in a street the public for the purposes of a street or highway was not in the King, but in the lord through the declaration and petition and the of the manor, subject only to the easement of the order or resolution of the common council. public to a way over it."

In form, a street is created by dedication. We conclude that the fee of the lands as In contravention of such conclusion, it is and when devoted to the street did not pass / asserted that the common law with respect to the British Crown,

to dedication had not in 1733 been devel(3-5) We take up next the finding of the oped. The assertion is unsupported by and Appellate Division that under the declara- is contrary to judicial authority and the tion and petition of 1733 the predecessors of natural conclusions authorized by the bisthe defendant here took the necessary pro- tory of the common law. The easement of a ceedings, under the Colonial Act of 1691, to private right of way was frequently created layout Cortlandt street as a public high- under the common law as early as the fourway, and that thereunder it acquired the fee teenth century. “The most elaborate and of the 40 feet.

carefully worded of the private documents The finding is and must be based, under which have come down to us are those which the record, exclusively upon the contents of create or regulate pasture rights and rights the declaration and petition and the lan- of way." 2 Pollock & Maitland, History of guage of the act. The contents of the dec- English Law, p. 144. It is a clear and near laration and petition and the granting of step from a right of way to an individual to the petition have already been stated. The a right of way to the public. In Post v. colonial act (Laws of 1691, chapter 18) in Pearsall, 22 Wend. 425, 433, Chancellor Waleffect recited that it was necessary for traf- worth stated : tic and commerce "that buildings streets

“Although at the time of the publication of lanes wharfs docks and alleys” be regulated the laws of William the Conqueror there were with uniformity for public accommodation, but four great roads in England called the and “that all impediments and Obstructions King's highways, yet no one can doubt that

at that time, innumerable that may retard so necessary a work may be thoroughfares, and many squares and open spacremoved," and enacted that the municipal es, which had been dedicated to the use of the authorities might at their pleasure appoint people at large, for passages and promenades; supervisors of those public conveniences to and the number since that time has probably

increased an hundred fold. The law of dedica.act according to such rules as they should 'tion, therefore, which was applicable to thorestablish, and might obstruct any building oughfares, was properly applicable to market that would narrow a street, and if in the places and promenades although they were not

highways in the ordinary sense of the term." laying out for the future of any such convenience “they doe take any persons Grounds This general statement has a strong sup

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"Most highways have, or are deemed to have, fered, ascertained by appraisement," and originated from the owner's dedication of his appraisers “shall determine upon a full and land to the public for the purposes of passage and acceptance by the public of his gift, evi- equitable consideration and estimate of all denced by their user of the way." 16 Halsbury's the circumstances attending the alteration Laws of England, p. 12.

in the streets, as aforesaid, whether such lot Judicial authority upon the question is not or lots has or have been decreased or adlacking. In Mayor, etc., of New Orleans v./vanced in value by such alterations and to United States, 10 Pet. 662, 712-717 (9 L. Ed. what amount," and contemplated payment 573), it was held that land was dedicated to to the owner of his damage or by him for the public use in 1724, and the court said : the increased value. A proceeding under

"That property may be dedicated to public this statute effected the widening of the
use, is a well-established principle of the com- street. It does not appear from any finding
mon law. It is founded in public convenience, or the proceeding as described that a fee was
and has been sanctioned by the experience of
The original dedication is prov-

taken or sought. The statute, obviously, did ed by the maps in evidence, and by a public use not prescribe or require the taking of the of more than a century. These facts are con- fee to the land appropriated for the widenclusive."

ing. An easement fulfilled its inten ent and In 1713 an English court recognized the purposes and constituted the interest taken, principle of dedication in the following opin- because when the language and intent of a ion:

statute do not otherwise require, the fee to "If a vill be erected, and a way laid out to land appropriated for a public use will reit, if there be no other way but that to the vill,

main in the owner. not material quo animo it was laid out, it shall

Mott v. Eno, 181 N. Y. be deemed a public way.”. The Queen v. In- 346, 74 N. E. 229; Bradley v. Crane, 201 N. habitants of Hornfey, 10 Modern, 150.

Y. 14, 94 N. E. 359. Our conclusion is that In 1732 it was likewise recognized in the the defendant has not at any time held the two decisions in Rex v. Hudson (2 Strange, fee to the land used in widening the street. 909) and Lade v. Shepherd (2 Strange, 1004), [7,8] We take up now a question to which in each of which the alleged dedication was we have not as yet referred. The Special many years prior to the rendering of the de-Term found as facts, the extent of the occision. We think the declaration and peti- cupied vault space; the demand of the detion and the resolution or order of the com- fepdant that the plaintiffs pay for the use mon council conclusively established the ded- of such space and take out a permit for its ication of the 40 feet to the public for the use; that the ordinances of the defendant, purposes of a public street. By the com- adopted in 1906 and existing at the time of mon law, in the act of dedication, the fee the demand, forbade, under a penalty, the of the soil remained in the owners, but the construction of a vault in a street without use of the street was vested in the public. the written permission of the borough presiThe owners parted with the use involved in dent having jurisdiction, and payment to the purposes of a street only. Barclay v. him, after obtaining the permission, of Howell's Lessee, 6 Pet. 498, 8 L. Ed. 477; "such sum as he shall certify in the said City of Cincinnati v. Lessee of White, 6 Pet. permission to be a just compensation to the 431, 8 L. Ed. 452. Our conclusion is that city for such privilege, calculated at the the defendant has not at any time held the rate of not less than 30 cents, nor more than fee to the original 40 feet of the street, and $2 per foot for each square foot of ground that the finding of the Appellate Division in mentioned in the application) as required relation thereto is not supported by the evi- for such vault,” and that no permit to use dence.

any portion of said space was ever applied [6] We take up next the finding of the for by the plaintiffs or their predecessors in Appellate Division :

title. It held as conclusions of law that the "That when the common council determined plaintiffs had not the right to construct or to lower the grade of Cortlandt street and to ex- maintain the vaults without obtaining the tend its width five feet on either side,” pursuant to chapter 56 of the Laws of 1784, "the fee permit from the defendant, and the defendto the widened part of the street vested in the ant had not the right to require the plaincity of New York."

tiffs as a condition precedent to the use of This finding has not any support in the any part of the said vault space to pay to evidence. The statute of 1784 recited, in ef- it compensation fixed in the ordinance for fect, the destruction by fires “during the the privilege of using said space. The judg. war" of a considerable part of the city, ment enjoined the defendant "from exacting and that streets in such destroyed parts from the plaintiffs the compensation fixed might be beneficially altered, and author- in the ordinance passed in the year 1906, and ized, in effect, the city to appoint commis- from interfering in any manner with plainsioners for the purpose of laying out the tiffs' use of said vaults by reason of plainstreets in such parts of the city under pre- tiffs' failure or refusal to pay such compenscribed restrictions with the provision that sation.” The reasoning of the Special Term, where any owner deemed his lot injured he as expressed in the opinion, was:

The ormight apply to the city "to have the injury dinance imposed a compensation based upon or damage so supposed to have been suf- the number of square feet contained in the

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