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Real estate record and builders' guide: [v. 91, no. 2348]: March 15, 1913

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AND BUILDERS NEW YORK, MARCH 15, 1913 lllillHIiliHiillllMIIIIIIH^^ I RIGHTS OF REALTY OWNERS IN THE STREETS! I ■ 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. i^lHlliiliBiilliB 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.