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Street Closings
By M. Robert Goldstein & Michael J. Goldstein
New York's law as to the property rights
of abutting owners in public streets was clarified in cases
such as Story v. Elevated R.R. Co., 90 N.Y.122.
Essentially it was held that private easements of light, air
and access automatically arise in favor of any property fronting
on a public street upon the creation of that street. Thus,
in that street were both the right of public access and private
easements. While the public generally has the right of access
over that street, the abutting property owners, besides sharing
in the rights enjoyed by the public at large, have special
private property rights. It has also been held that the rights
of the abutting owner were more than just the easements of
light, air and access. Donahue v. Keystone Gas Co.,
181 N.Y. 313. There is another kind of public street and
that is where the bed of the street is privately owned, usually
by the abutting property owners to the center line of the
street, and where that street has also been dedicated to the
public use. Usually, such a street was created in the first
instance by a subdivision of a larger tract into lots fronting
on mapped streets. The sale of lots referenced to a filed
map by an owner of that larger plot gives rise to street easements,
including access to cross streets leading into a system of
public streets. The sale of those lots is referenced to that
map will give rise to the same street easements in favor of
the abutting owners, but not to the public at large.
Lord v. Atkins, 138 N.Y. 184. To change that private
street into a public street requires either a dedication and
acceptance by the municipality, a user or a condemnation.
In re India Street, Borough of Brooklyn, 29
N.Y.2d 97, 324 N.Y.S.2d 1 (1971). Most municipalities will
not accept a dedication (usually by the subdivider), unless
the street meets its standards, not only in construction but
in utilities, particularly, water and sewer. The fact that
the street may not have been physically improved as such does
not make it less of a street, in terms of the property rights
of the abutter. There is also the private street. It is the
same as that described above, with title and easements held
by the abutters, but where it has not been dedicated to the
public use with no rights in the public at large. But there is another type of street, the
so called "paper street". This is not a street at
all, but merely lines on a map, constituting the municipal
general plan. The mere mapping of the lines of the street
on the municipal map, while it may, by statute, restrict development
of that land, neither creates a street as such nor deprives
the property owner of any property interest in that part of
his property which lies within the bed of that mapped street.
Foster v. Scott, 136 N.Y. 577; Headley
v. City of Rochester, 272 N.Y. 197. When condemned,
the owner is entitled to full compensation for the land in
that mapped street. In re City of New York (College
Point, U.B. II), 78 A.D. 2d244, 434 N.Y.S.2d 711 (2d
Dept., 1980); City of Rochester v. Hennen, 56
A.D. 2d 719, 392 N.Y.S.2d 943 (4th Dept., 1977).
The property owner(s) may and, indeed, in some instances,
is required, when developing that land, to not only recognize
that portion of his property as a street but also pay for
the cost of putting in the street, particularly where he wishes
to subdivide the property. Where the property owner subdivides
his property in reference to the municipal map, he creates
street easements in favor of the abutting property owners
on that portion of his land which lies within that mapped
street, In re Braddock Avenue, 278 N.Y. 163;
Reis v. City of New York, 188 N.Y. 58. That these street easements are valuable
needs no citation of authority. While the land in the bed
of the street usually has but nominal value In re India
Street, supra; being burdened by street easements,
(In re Braddock Avenue, supra; cf In re
Northern Blvd., 258 N.Y. 136) it is the abutting land
which acquires value by reason of these easements of light,
air and access. Well, what are the nature of these rights?
To begin with, when it is a public street, the land is held
in trust by the municipality for street purpose, i.e., it
cannot be used for other than a street and those uses, which
are incidental to its use as a street. In re East Fifth
Street, 1 Misc. 2d 977, 146 N.Y.S.2d 794 (Sup. Ct.,
N.Y. Co., Eder, J., 1955). While a street, it is inalienable,
(Green v. Miller, 249 N.Y. 88) and there may
be no adverse possession which would cut off the use as a
street. Even when the fee title is held by other than the
municipality and it is a public street, the street easements
in favor of the public are still in trust and are also inalienable
and not subject to adverse possession. Obviously, one of the major benefits of having
a street is being able to gain access to the abutting property.
A property without access has little value, as it cannot be
used. One of the benefits of the street is to prevent building
in the street, preserving light and air to the abutting property.
It is when these benefits of a street are legally impaired,
and since the street is held in trust for street purposes,
they may only be impaired by a body having the power to condemn,
that you get into the question of compensation. Story v. Elevated RR Co., supra,
came about from the building of an elevated railroad structure
in the bed of a street. The action was brought in the alternative,
to either enjoin the building of the structure as not being
a proper street use or to hold a condemnation proceeding (the
railroad company having the right of eminent domain) so as
to compensate the abutting property owners for their damages
from impairing their easements of light, air and access. Today
it would be called an inverse condemnation. The reasoning of the Court was that when
the streets were created and the land given up for that purpose,
it was a very defined purpose. While one could use the street
for compatible uses such as sewers, without impairing the
street easements, an elevated railroad was not such a compatible
use. Interestingly enough, non-elevated street railroads were
later deemed to be a proper street use. Kane v. N.Y.
El. R Co.,125 N.Y. 164, 176. However, when dealing
with access, the Courts, in a series of decisions, have determined
a property could be deprived of access to a street, in whole
or in part, as long as there was such an adequate access remaining
or did not change for the worse the highest and best use of
the property (Selig v. State of New York, 10
N.Y. 2d 34; Priestly v. State of New York, 23
N.Y.2d 155, 295 NYS2d 659); Laken Realty Corp. v. State
of New York, 29 A.D. 2d 1027, 289 N.Y.S.2d 566 (3rd
Dept., 1968); cf. In re East Fifth Street, supra)
the so called "Circuity of Access" cases. But what happens when a governmental entity
wishes to close a street? Since street easements are valuable
property rights they may not be taken or impaired without
just compensation. In re East Fifth Street, supra;
Matter of City of New York (Gillen Place), 304
N.Y. 215. Since the public has the right to create a street,
it has the power to close a street, but since closing the
street means acquiring the street easements, the owners of
these easements must be compensated. While the value of the
bed of the street may be nominal, it is the consequential
damage to the abutting dominant estate when the street easements
are acquired for which payment must be made (Matter
of City of New York, (Van Hill Realty Co., Inc.),
19 App. Div. 2d 739, 242 NYS2d 782 (2d Dept., 1963). In some
instances, the closing of the street is accomplished by a
straight condemnation proceeding for another use. In some
instances, by agreement with the abutting owners, who, after
the street is closed, usually have a preemptive right to acquire
the bed of the closed street up to its center line, opposite
their property, before it is sold to anyone else. See Highway
Law, Secs. 123, 30 [18]; Greifer v. Sullivan
County, 246 App. Div. 385, 286 N.Y.S. 791, aff'd.
273 N.Y. 515; Administrative Code of the City of New
York, Sec. 4-105; Klee v. Wagner, 8
N.Y. 2d 991, 205 N.Y.S. 2d 162; 8 N.Y.2d 1019, 206 N.Y.S.2d
787. It must be noted, however, that temporary closings of
streets, during the course of improvement of the street, albeit
it may be lengthy, is damnum absque injuria. Cities
Service Oil Co. v. City of New York, 5 N.Y.2d 110,
180 N.Y.S.2d 769; Filkins v. State of New York,
63 Misc.2d 380, 311 N.Y.S.2d 54 Sup. Ct., Oneida Co., 1970)
and cases cited therein. The City of New York's Administrative
Code, Sec. 5-430 et. seq (formerly Title E) is a special
statute providing the procedure by which a street is closed
in the City of New York. In re East Fifth Street,
supra. It provides that the order of the Mayor directing the
closing shall also direct the Corporation Counsel to start
a condemnation proceeding to fix the compensation "to
the respective owners of the real property affected, damaged,
extinguished or destroyed by such closing." The interesting
part of the statute is that it provides that the street closing,
different than in other condemnation proceedings, may be effectuated
by resolution of "the Board of Estimate" where it
sets a date for the street closing (Sec. 5-438) rather than
provide for a court order followed by a proceeding to fix
compensation. It further provides that if such a proceeding
is not brought, an owner may apply for an order to expedite
the proceeding (Sec. 5-367). In interpreting this statute
it was held in Matter of City of New York, 12th
Avenue from W. 55th Street to West 57th
Street, N.Y.L.J. 5/3/41, p. 1979, col. 1 that, absent
the holding of the condemnation proceeding, the private street
easements continue to exist, which are property rights of
the abutting owner. The mere filing of a map showing a discontinuance
of the street did not effectuate a taking until the street
closing proceeding was actually instituted. It is to be noted
that where private street easements exist, but the street
has not been improved, nor have street closing proceedings
been instituted, that the mere demapping of the street does
not affect the existing street easements, without a street
closing or condemnation proceeding.
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