AND





BUILDERS







NEW YORK, MARCH 15, 1913





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I RIGHTS  OF  REALTY  OWNERS  IN  THE  STREETS!





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Who  Owns  Cortlandt  Street,   the  City or  the Abutting  Owners?—An  In-
I              junction Sought Under the Claim That the Fee Was Never Vested in the City.

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PROPERTY owners and their legal
counsel have not been convinced
that, as maiirtained of late years by the
city authorities, they have no special
rights—at least no right of possession
in any case—in the streets fronting their
premises. They have been waiting for
some determination by the high courts
to settle the question in their minds.
William W. Appleton and Col. Daniel
Appleton, as trustees for the owners of
the premises at 173 Broadway, north¬
west corner of Cortlandt street, have
applied to the courts for an injunction
to restrain the City of New York from
encroaching upon their property, partic¬
ularly the vault space under the side¬
walk on the Cortlandt street side.

They claim to own this vault space,
and the city disputes their claim. The
case is pending in the Supreme Court
before Justice Greenbaum. The answer
to a number of important questions de¬
pend upon the final decision in these
proceedings. So far as Cortlandt street
is concerned, the decision is expected
to determine what the rights of abut¬
ting owners are in the street beyond
the  building line.

The Issue.

Briefly stated, the contention of the
Messrs. Appleton is, as the Record and
Guide has learned from their counsel,
J. Hampden Dougherty, Esq., of 27
William street, that the fee in Cortlandt
street has never passed to the city. Cort¬
landt street was opened as a forty-foot
street, in 1733. Upon the widening of the
street, in 1784, by the addition of a strip
of five feet on each side, which took
place under an act of the Legislature,
the city acquired only an easement and
not the fee of the added strips.

The vaults lie under the sidewalks and
extend a few feet beyond the added strip.
In pursuance of a policy recently
adopted, the city, through the president
of the Borough of Manhattan, is calling
upon occupants of vault space to take
out permits and pay rentals. The claim
of the Messrs. .\ppleton is that the fee
of Cortlandt street has always ren"iained
in the adjoining owner and that the own¬
ers of 173 Broadway have a title to the
land under the street and sidewalk oc¬
cupied  by  their vaults.

In the present case the title is trace¬
able back for nearly two hundred years.
Cortlandt street did not become a thor¬
oughfare during the Dutch occupancy
of Manhattan Island nor was it opened
under any act of the Colonial Legisla¬
ture. It may be conceded. Counselor
Dougherty says, that while New Nether¬
lands    constituted    a    province    of    the





// the courts stiould decide ihat ihe
land covered by Cortlandt Street does
not belong to the City of A/ew VorA, but
to the abutting owners, tbe policy of the
municipality in Important particulars will
have to be changed. In a number of
other Instances ia Manhattan, It Is also
alleged that the fee ownership to the
streets never passed to the municipality,
tf this contention Is affirmed. It follows
that the proprietors have the right to tbe
use of the land under the sldewatks and
la the streets In front of their buildings
for vault purposes, so long as that use
does not conflict with the use otthe street
by the city for street purposes, and that
these vaults cannot be entered for ani
purpose  without due  process   of law.





States-General of Holland, the fee of
all the streets actually opened during tht
Dutch administration passed to the sov¬
ereign power. But Cortlandt street was
not opened until 1733, at which time New
York was an English colony, and the
street was not opened pursuant to any
act of the Colonial Legislature.

A Little Real Estate History.

The premises in question, together
with other lands lying north of the
latitude of Wall street, between Broad¬
way and the Hudson River, belonged in
or about 1730 to Catherine I'hillipse.
The title came to her through one of
the Van Cortlandts, whose daughter,
was Mrs. Phillipse, The executors of
her estate, in unison with other owners,
"staked and laid out" Cortlandt street
through their lands. They then notified
the Common Council that they had laid
out the street in like manner as other
public streets and that it would forever
continue a public street. They asked to
have the dedication accepted and record¬
ed. The prayer of the petition was
granted, and the declaration was entered
in the minutes.

The contention of the plaintififs is that
this action of the owners and the city
authorities constituted a dedication of
the street by the owners of the land em¬
braced within and an acceptance of the
dedication by the city, and that the legal
result was the vesting in the city of an
casement,  "while  the   title   in   fee   to   the





street did not pass to the municipality.
They allege that the words "staked and
laid out" have repeatedly been held to
imply the conveyance of an easement
only, as no proceedings were taken to
vest title in fee in the city.

The present building with the vaults
in Cortlandt street was constructed by
James E. Cooley in the year 1868, and
ever since that date it has remained in
the possession of Cooley and the trus¬
tees under his will. Admittedly the
present legal proceedings have a bear¬
ing on the city policy of eliminating
architectural projections beyond the
building line. It has been claimed that
there are a number of other streets in
Manhattan, as well as in Brooklyn,
where the fee is not vested in the city
but in the owners of the abutting prem¬
ises.

Text of the Dedication.

The dedication in the case of Cortlandt
street  reads  as  follows:

"The petitioners and others concerned
in the said lands by mutual consent and
agreement have laid and staked out a
certain new street from the Broadway
aforesaid to Hudson's River of forty
foot in breadth and called the name
thereof Cortlandt street, which begins
upon the Broadway aforesaid," etc. The
document goes on to say:

"The petitioners declare and make
known that the said new street so laid
out, of forty-foot English measure in
breadth through lands aforesaid and
called Cortlandt street shall forever re¬
main, continue and be a public street
and highway in like manner as the other
public streets of the city now are or
lawfully ought to be; and therefore pray
this their declaration and petition may
be recorded in the record of the common
council of the corporation."

No condemnation proceeding was ever
instituted and no compensation was ever
paid to the owner for the land taken.
The original street was laid out by the
proprietors of the land adjoining and
embracing the street, who presented to
the Common Council their petition, ask¬
ing that their action in dedicating the
street be recorded. In other words,
whatever title or interest the city received
was the result of a dedication by private
owners and the city's acceptance of it.
It was a dedication made in accordance
with the common law which then pre¬
vailed in the State of New York, and
the Counselor Dougherty claims that the
Common Council's acceptance of it gave
the city merely an easement in the street,
and he supports this claim by citations
from  numerous authorities.