#### Elizabeth F. Clark, Plaintiff, *v.*The City of New York et al., Defendants.

(Supreme Court, New York Special Term,

June, 1900.)

Easement — Of view, how created — Soldiers and sailors' monument in Riverside Park, New York, not an encroachment.

An abutting owner of property on Riverside Drive in the city of New York, distant about 200 feet from the proposed site in Riverside Park of a soldiers and sailors’ monument, and who has no contract right to a view from her premises, cannot restrain the city from erecting the monument, as permitted by chapter 522 of the Laws of 1893, upon the ground that its erection will encroach upon her easement of view.

Motion for an injunction *pendente lite.*

*53Young, Verplanck & Prince (Augustus Van Wyck, Henry A. Prince, of counsel), for plaintiff.

John Whalen, Corporation Counsel (Charles Blandy, of counsel), for defendants.

Fitzgerald, J.

The plaintiff seeks an injunction *pendente lite*to restrain defendants from erecting a monument to the memory of our soldiers and sailors at a point on Riverside Park just south of the southerly side of Eighty-ninth street. Plaintiff is the owner of property on the northeast corner of Eighty-ninth street and Riverside Drive, and the grounds of her action are, as set forth in the complaint, that the proposed monument will deprive her of her easements of prospect, light and air. The distance between plaintiff’s house and the proposed site of the memorial is variously estimated at between 192 and 275 feet, but assuming the lower of these figures to be correct it is difficult to imagine how her- light and air could be even remotely affected by its erection, and, as I understand her claim, she places her main reliance for success in the pending action upon the encroachment with which her easement of view is threatened. Plaintiff claims that defendants are under legal obligations to keep this park free from structures or buildings of any kind, and the soundness of this proposition is denied by defendants’ answer. Chapter 697, Laws of 1867, authorizes the commissioners of the Central Park to acquire' title to certain property between Fifty-ninth street, One Hundred and Fifty-fifth street, Eighth avenue and the Hudson river, and under this act Riverside Drive and Park were constructed. The act provided that proceedings to acquire title to the land in question should be had pursuant to such acts then in force relating to the opening of public squares, streets, etc., in the city of New York. Section 178 of chapter 86, Revised Laws, Laws of 1813, entitled, An act to reduce several laws relating particularly to the city of New York into one act, is in part as follows: “ On such final confirmation of such report by the said court, the said mayor, aldermen and commonalty of the city of New York shall become and be seized in fee of all the said lands * * * that shall or may be so required for the purpose of opening the said public square or place, street or avenue * * * . In trust, nevertheless, that the same be appropriated and kept open for, or as part of a public street, avenue, square or place forever, in like manner as the other public streets, *54avenues, squares and places in the said city are, and of right ought to be.” Referring to lands taken under the above act, it was held in Drake v. Hudson R. R. R. Co., 7 Barb. 509: “The owners of property bounded upon streets in a city have rights in such streets, and an interest in the maintenance of them in their integrity; but such right and interest consist merely in the use, benefit and enjoyment of them as public streets or highways for the legitimate uses and purposes of streets. They have no private or exclusive right to, or property in, the use or enjoyment of them. All other citizens have an equal right, with such owners, to the use of the public streets as such. * * * The corporation of the city are the owners of the legal title to the soil of the streets.” The commissioners, under the authority of the act of 1867, acquired title to this tract of land for the purposes of a park and drive, and not for the purpose of affording “the adjoining and neighboring property owners ” any exclusive or greater dominion than that vested in the public. The power to erect the proposed monument is conferred upon defendants by section 1 of chapter 522, Laws of 1893, which reads: “The mayor, aldermen and commonalty of the city of New York may erect at such place as the department of parks in the city of New York shall designate for that purpose, * * * a suitable memorial arch or monument.” It thus appears from the acts referred to that, by the act of 1867, the department of parks was to construct and lay out a public park and drive. The mayor, aldermen and commonalty of the city of New York were authorized by the act of 1893 to erect a memorial arch or monument in a place to be designated by the department of parks. In December, 1899, after correspondence with the officials of the park department, the commissioners in charge of the erection of this monument selected what they considered to be the most desirable site (the place in question). Defendants submit in their answer a report made by Mr. John DeWolf, landscape architect of the department of parks, to the president of the board of park commissioners, dated December 11, 1899, the concluding portion of which is as follows: “ The monument will not obstruct the view as much as the trees, and no one has yet objected to their presence. It will add a more beautiful foreground to the view, and I feel that further study of the plans in contemplation will please all sincere and disinterested objectors and secure their approval.” The erection of such structures as the *55one proposed, and similar works of art in the public squares, parks and places in the villages, towns and cities of the world is a matter of general knowledge. We have in the city in our parks, public squares and places, buildings, structures and monuments, a few of which may be enumerated: The Grant Monument in Riverside Park, the Statue of Lafayette in Union Square, the Farragut Monument in Madison Square, the Worth Monument, nearly opposite the Statue of Columbus, Fifty-ninth street and Eighth avenue; the Washington Arch, the Washington Equestrian Statue in Union Square; the Museum of Natural History, Manhattan Square; the Metropolitan Museum of Art, in Central Park, facing Fifth avenue, and several others. I have carefully examined the voluminous record submitted, but fail to find any contract or agreement to sustain plaintiff’s contention. “ An easement can be created only by a grant, express or implied, or by prescription, from which a grant is presumed.” Jones Easem., § 80. Again, at § 583, this distinguished writer says: “No action can be maintained for obstructing a view except upon an express covenant giving a right to the view.” Freedman, J., in Greene v. N. Y. C. & H. R. R. R. Co., 12 Abb. N. C. 137, held that “ He is bound to show an easement in the park or square, either by express grant or by dedication. In either case the burden of proof is upon him. He showed no express giant. Now, before the law will, in the absence of an express grant, protect a mere right to a prospect or air over land separated from the plaintiff’s premises by an intervening street, which is all the plaintiff’s claim as to the park or souare amounts to, it must appear affirmatively that the prospect and the air were within the contemplation of the original parties as objects of the dedication.” It may be that the residents of this immediate neighborhood are apprehensive that crowds of persons would be attracted to the spot, and their desired exclusiveness and privacy might be interfered with; possibly they may entertain the opinion that the value of their property would be depreciated, but surely it cannot be claimed that their fears or apprehensions upon purely selfish grounds would be considered by a court to the extent of prohibiting the erection in a public park of this beautifully designed arch, commemorative of patriotism, valor and sacrifice. Motion to continue injunction *pendente lite*denied.

Motion denied.