Valuation of Streets
By M. Robert Goldstein and Michael J. Goldstein
A problem of more than passing interest in many condemnation proceedings in most areas of the City with undeveloped or partially developed land is what is the value of land designated on the City map or on private approved subdivision maps as a street although never acquired by the City. Compounding that problem is where those mapped streets were recognized in conveyancing by property owners facing on those mapped streets who conveyed describing the lands as fronting on those streets. Since all of the City of New York has now been mapped by the general City map this is a universal problem.
Who Owns Land?
The first question is who owns the land in the bed of a street mapped by a municipality. The fact of a mapping of a street by a municipality does not create any interest in the municipality nor does it divest the owner of any rights in that land. To do so would be a taking without just compensation and thus unconstitutional (Foster v. Scott, 136 N.Y. 577, 1897; Vangellow v. City of Rochester, 190 Misc. 128, 71 N.Y.S. 2d 672, 678, 1947; Headley v. City of Rochester, 272 N.Y. 197, 1936; Rand v. City of N.Y., 155 N.Y.S. 2d 753, 1956). That map is generally part of a comprehensive plan for an orderly development of the City and that is all.
For a municipality, as such (distinguished from the public), to acquire street rights (whether a fee title for street purposes or only street easements leaving the naked title in private hands), it requires either a dedication and acceptance, a user, or a condemnation. (In speaking of streets by user distinction must be made between private user and public user). Absent any of these, title to a mapped street would remain in non-municipal hands. However, if a grantor in conveyance treats that City map as he would a privately filed map there may be other consequences, discussed later (In re Braddock Avenue, infra).
As to the title to the land in the mapped street it is hornbook law that unless a deed contains an express reservation to the grantor, a conveyance of land abutting upon a street (merely mapped or actual) grants a fee to the center line of the abutting street and this is so whether the conveyance be a tax deed or any other kind of deed, whether reference is made to the street or not, or whether the description is only by tax lot number (3 Kent's Commentaries [14th Ed.] p. 432-433, Lowe v. DeFelippo, 12 A.D. 2d 788, 209 N.Y.S. 2d 652; Gottfried v. State of N.Y., 23 Misc. 2d 733, 201 N.Y.S. 2d 649; Bo-Con, Inc., v. Sweeney [Sup. Ct., Rich. Co.] N.Y.L.J. May 19, 1967, p. 21, col. 6; Bissell v. N.Y. Central Railroad Co., 23 N.Y. 61, 65; Kent v. Winer, 30 A.D. 2d 703, 292 N.Y.S. 265).
Who Holds Title?
Thus, since it is most unusual for a grantor to reserve title to the bed of a mapped street (unless he intends to dedicate it to the municipality) title almost always, to the center line of the mapped street, will be in the abutting owner. Assuming the land can be used independently or in conjunction with other property and all that has occurred is the municipal mapping of a street, it is clear that it has a full value no different than other adjacent land. (Its value may be less for not having street frontage or access but that is another matter.)
But what happens if the owner of the lands abutting on that mapped street (whether mapped by the City or on a private map) decide to treat that street as if it is an actual street?
In the normal course of events, land, which started out as farms or as other large tracts, in order to be used, became subdivided. To afford access to the individual pieces of subdivided lands, so they could be used and sold in smaller pieces, subdivision maps were made by the one common owner showing that the individual plots had street frontages and could be reached from the system of public streets. Today most municipalities provide that before lands are subdivided that a subdivision map be approved by the municipality and filed. In fact, between 1902 and 1916 Section 1540 of the New York City Charter provided that the filing of a private subdivision map was an offer to dedicate a fee for street purposes which offer was accepted upon approval of the map by the City. (We have not researched for any decisions as to either the constitutionality of this statute or its interpretation.) Usually a map to be accepted for filing must conform to the municipality's general plan for its streets and will not be accepted for dedication unless either the map is approved with its changes or the streets conform to the general plan.
Common Law Cited
Now, the question is what happens, when a subdivision map is filed, to the land which is shown on that filed map to be in the bed of a street. The common law is as stated in Lord v. Atkins (138 N.Y 184, 191). "It is well settled that when the owner of land lays it out into distinct lots with intersecting streets or avenues, and sells the lots with reference to such street, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. When, in such a case, a lot is sold, bounded by a street, the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right."
It will under such circumstance be presumed that there was an intention by the grantor to create these rights over his own lands but only in favor of those in privity of contract with him and not to other owners or the public generally. These property rights are private easements and extend only to lands on the same block to the next cross street on each side of the lots sold leading to a system of public streets (In re East 177 Street, 239 N.Y. 119, 131; Matter of Opening of Twenty-Ninth Street, 1 Hill 189; Reis v. City of New York, 188 N.Y. 58; In re East 5th Street, Borough of Manhattan, 146 N.Y.S. 2d 794, 803) unless it is provided otherwise. Note that while an intention to create private easements will be presumed, such a presumption of intention is not conclusive, and there must be such an intention (In re Northern Boulevard, 258 N.Y. 136; In re Braddock Avenue, 278 N.Y. 163, 171). Even then, only those easements will be presumed which are necessary to afford access to the property conveyed and usually will not extend beyond the next intersecting street (In re East 177 Street, 239 N.Y., at 131; Reis v. City of N.Y., supra). They are akin to easements of necessity.
Not a Public Street
But this does not make such a street a public street and neither the public nor the municipality acquires any rights in it. "The dedication and acceptance are to be proved or disproved by the acts of the circumstances under which the land has been used. Both are questions of intention. The owner's acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use. If they be equivocal or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication. "In the case of a highway the public must accept the dedication" Holdane v. Trustees of Village of Cold Spring, 21 N.Y. 474, 477. As was stated in In re East 177 Street, (supra): "The acts and declarations of the party must be unmistakable in their purpose and decisive in their character showing an intent to dedicate the land, absolutely and irrevocably to the public use and there must also be an acceptance and formal opening by the public authorities, or a user (Niagara F. Susp. Bridge Co. v. Bachman, 66 N.Y. 261)." Thus, merely the showing of streets on a tax map by the municipality does not evidence an acceptance by the public authority (Sanchelli v. Fata, 306 N.Y. 123; Johnson v. City of Niagara Falls, 230 N.Y. 77).
What, then, is the value of land so encumbered by private easements. The Courts generally treat such land as having a nominal value (Matter of City of N.Y. [149th Ave.], N.Y.L.J., Feb 4, 1972, page 19, cols. 5 and 6; In re Braddock Avenue, 249 A.D. 652, 251 A.D. 669, aff'd 278 N.Y. 163; In re Decatur Street, 196 N.Y. 286; In re Schneider, 136 App. Div. 444, rev'd on other grounds 199 N.Y. 581). But this is not infallibly true (In re Northern Boulevard, 258 N.Y. 136; In re East 177 Street, 239 N.Y., at p. 131). It depends upon the extent to which the easements burden the fee or whether the land under the easements can otherwise be profitably used. If one owner has a title to all the lands fronting on the mapped street he has the complete power to extinguish those easements and the law will credit him with doing that which he has the right to do (if not in fact treating those easements as if merged in the fee) (Gerbig v. Zumpano, 7 N.Y. 327; Snyder v. Monroe County, 2 Misc. 2d 946, aff'd 6 A.D. 2d 854). If there were only a single (or a few) other property on that street and it would benefit both owners to eliminate the private easements and gain an unencumbered fee title the law again will presume a probability of such occurring and fix a value based on such a probability with the value dependent upon the strength of such probability (In re Northern Boulevard, supra).
Now suppose there are private easements encumbering a naked fee title, rendering the value of that naked fee nominal. Is it a dead loss to the (abutting) owner? Obviously not. The creation of streets by themselves create value in many ways to the abutting owner and these are every day recognized by appraisers and assessors, outside of the fact that without (street) access there is no value.
Most appraisers recognize zones of value with relation to street frontages. The front half of a City lot is usually assigned two-thirds of its value, with the rear portion assigned one-third. This is because of its proximity to the street. Dependent upon use and zoning the value of land beyond standard lot depths is often treated as rearage having half the value of the frontage. Assessors will most often reflect what is in effect a transfer of values from the bed of the street to the abutting property by assessing no value to privately owned land in the bed of a street and noting on their records "value of land in bed of street reflected in abutting property." Thus, corner lots for certain uses are valued at 50 per cent more than an inside lot, key lots at 10 per cent more and a 10 per cent increment in value is given to an entire plot for a second street frontage, with further percentages for even more street frontages.
While there may not be an exact equation between the "lost" value to the naked fee title in a street (whether public or private) and the increased value of an abutting property it is evident that the value is not a dead loss and that there is a substantial increase in value in the abutting property.
Reprinted with permission from the May 7, 1974 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.