#### In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title, etc., for the Widening of Third Avenue Opposite East One Hundred and Fifty-ninth Street, in the Twenty-third Ward, Borough of the Bronx, City of New York. Annie Fuchs and Others, Appellants.

First Department,

June 16, 1911.

Eminent domain - J street widening — land burdened with, easement — right of elevated railroad to construct line.!

Where a deed conveying to an elevated railroad a right tjo construct its road over the property of the grantors provides that the road should always be fourteen feet above the street grade and ah attached diagram of the right of way shows but one elevated pillar on the property, the owners retain a beneficial use of the land and they may build thereon providing the structure does not interfere with the right of way.

Evidence in a proceeding by a city to condemn lands burdened with an easement giving to. an elevated railroad the right to build its line over the land examined, and held, that an order confirming! 1⁄8.® report of commissioners awarding damages considerably below thejaverage valuation placed on the land by the city’s own experts should be reversed on the ground that the award was1 based upon an erroneous ¡theory.

Where the proceeding was heard once by commissioners arid their ‘report was denied confirmation and. a new hearing was had before other commissioners, whose report was confirmed, the court, oh an appeal from the order confirming the report cannot review the former order denying . confirmation from which an appeal was not taken until the second order had been made.

Appeal by Annie Fuchs and others, owners,- from an order Supreme Court, made at the New York Special Term *245and entered in the office of the clerk of the county of New York on the 3d day of February, 1910, overruling objections to the supplemental and amended report of commissioners of estimate and assessment, with notice of an intention to bring up for review an intermediate order-entered on the 12th day of October, 1908, denying the appellants’ motion to confirm a report of commissioners of estimate and assessment acting at the time the motion was made.

*William F. Burrough,*for the appellants.

*John J. Kearney*of counsel [ *Joel J. Squier*with him on the brief], *Archibald B. Watson, Corporation Counsel,*for the respondent.

Clarke, J.:

February 9, 1906, pursuant to the provisions of section 970 of the charter (Laws of 1901, chap. 466), the board of estimate and apportionment adopted a resolution for 'the acquirement of title to the lands and premises required for the widening of Third avenue opposite East One Hundred and Fifty-ninth street in the borough of the Bronx, described as follows: “Beginning at a point in the eastern line of Third Avenue distant 124.49 feet northerly from the intersection of said line with the north line of East 158th street: 1. Thence northerly along the eastern line óf Third Avenue for 74.92 feet; 2. Thence easterly' along last-mentioned line for 74.92 feet; 3. Thence southwesterly to 136.85 feet to the point of beginning. ”

The widening of Third avenue is shown on section 6 of the final maps and profiles of the twenty-third and twenty-fourth wards filed in the office of the commissioner of street improvements on August 6, 1895. On April 13, 1906, commissioners of estimate and assessment were appointed. Their final report was presented for confirmation on July 31, 1908.

The land is in the form of a triangle, having for its base the proposed new easterly line of Third avenue with its two equilateral sides fronting on the old line of Third avenué, each 74.92 feet in length. The entire parcel contains 2,087.55 square feet or about four-fifths of a city lot. This is subdivided into *246fom’ damage parcels, separately owned, containing respectively: No. 1, 150.69 square feet or about one-sixteentli of a city lot, for which the .commissioners allowed $2,834; No. 2, 1,769.77 square feet, or about three-fifths of a: city lot, for which they allowed $32,000; No. 3,167.09 square feet, or about, one-fifteenth of a city lot, for which they allowed $3,940; and No. 4, which contains merely .0003 square feet, for which ¿hey allowed $1, making a total of $38,775. This i;eport was refused confirmation, the court saying: “The awards seem to me to be so grossly excessive that I cannot confirm the report. - It must, therefore, be returned to the commissioners for reconsideration;” and an order was entered thereon1 October 12, 1908. • ' ■

Thereafter a new commissioner was appointed jin the place of one commissioner who resigned, and subsequently another was appointed in the place of a commissioner who died. This commission made a final report in which it allowed for damage parcel No. 1, $75.35; damage parcel No. 2, $884i89; damage parcel No. -3, $83.55; damage parcel No. 4, $.50, making a total of $1,044.29. This report was confirmed, the court saying: “In view of the restrictions upon the actual improvement of the property by virtue of the easement existing! in favor of the Suburban Rapid Transit Co. 3⁄8 3⁄8 3⁄8 the. awards are certainly not- so low as to suggest an error of principle or a disregard of the.evidence as to values.” From the order entered thereon the property owners take this appeal and attempt to review as well the prior order of the court refusing to confirm the award of the original commissioners.

The enormous discrepancy in the awards made i by the two commissions suggests at once the abnormal character of the lands taken in this proceeding. On December 6, ¡1886, Anna M. Pender and others, the then owners of the property, executed an instrument to the Suburban Rapid Transit Company which recites as follows: “Whereas, the said party of the second part desires to construct, maintain and operiate its proposed railroad across the premises of the parties ¡of the first part, Now this indenture witnesseth that the said parties of the first part in consideration of the sum of Six thousand dollars to them in hand paid by the said party of the second part, *247the receipt whereof is hereby acknowledged, have granted, bargained, sold, released and conveyed, and by these presents do grant, bargain, sell, release and convey to said party of the second part, its successors and assigns forever, the right to construct its proposed railroad and to maintain and operate the same with such columns or supports as it may deem necessary or proper for such purposes and as are shown on the diagram hereto annexed over and across the piece or parcel of land shown in the said diagram and bounded and described as follows. 3⁄8 3⁄8 3⁄8 Such railroad to be and remain at an elevation in all places over and above the parcel of land hereinabove described of not less than fourteen feet above the grade as now established of that part of Third Avenue which is adjacent to said parcel of land. And the said party of the second part for itself, its successors and assigns, covenants and agrees with said parties of the first part, their heirs and assigns that it will not place any obstruction whatsoever upon the surface of the said parcel of land except the aforesaid columns or supports of its said railroad. And the said parties of the first part, in consideration of the premises, do hereby release said party of the second part, its successors and assigns from any -and all claims and demands for damages or compensation or otherwise which they, the said parties of the first part, or any of them, have or may have as owners of said premises or of the lots adjoining the same- directly in the rear thereof by reason of the construction as aforesaid of the proposed railroad of said party of the second part, or of the due and lawful maintenance and operation thereof 3⁄8 3⁄8 7⁄8.”

Attached to the grant was a map on which the land over which the easement was granted is shown as a pink triangle with a base of 137 feet 2 inches, two equilateral sides of 74 feet 11 inches, containing 2,092 square feet, and having one elevated pillar shown 7 feet 8% inches in' from the apex of said’ triangle. • .

In 1899 George Eggers, who was the grantor of the appel lant Fuchs, the present owner of damage parcel No. 1, erected on the plot abutting on parcel No. 1 a five-story brick building, the front wall of which coincides with the line of Third avenue as it is legally acquired in this proceeding, and hence diagonal *248to the old line of Third avenue. In 1904, Eggers, the' owner of damage parcel No. 3, erected on the lot which abutted on said No. 3, a two-story brick building, the front wall of which was also coincident with Third avenue as widened in this proceeding, and hence also diagonal to the old line of Third avenue. By deed dated June 19, 1905, George H. Burns and wife conveyed -to Asher Cohen' the entire premises, of which damage parcel No. 2 forms a part, for the sum of $7,500. By deed of October 18, 1905, the said Cohen and wife conveyed the same premises to the appellant Louis Reiter, who, five days after he took title .from Cohen, petitioned the local board to initiate proceedings to have the portion of his land acquired herein condemned for a street. It is this parcel No. 2 for which the first commission awarded $32,000, whereas the whole plot from which it was taken had been purchased for $7,500.

It appears that shortly after, the grant to the railroad the line of Third avenue was shoved back coincident with the new line and with the description in the right of way, and has been curbed and the street paved, and that it has since been used by the public. There apparently were .some negotiations between' the railroad and the then commissioners of parks who had jurisdiction in the twenty-third and twenty-fourth wards, and a resolution was adopted by the board of aldermen, but, of course, those proceedings did not pass title but accomplished a mere physical change and use. It is claimed' that in 1907 actions were brought by property.owners against the city for -trespass, which are still pending in the Supreme Court!

There is no substance in the claim made by the city of dedication, because the owners of the land did not participate in the proceedings under which the line of the street was physically changed. ,

The real controversy is over the nature of the extent of the title passed by the Pender deed. The property owners claim three'things: *First,*that the $6,000 consideration was not alone for the easement or right of way, but that there Was included therein a release of all possible damages which should accrue from the erection, maintenance and operation of the road; *second,*that a mere right of way was granted for a structure which should be always fourteen feet high above the *249property, and that only the one pillar shown on the map accompanying the grant could ever he erected on the property; and, *third,*that, therefore, they were entitled to improve then property under said elevated road, and that they could have built stores-or offices fourteen feet high, five in number, which could have been rented for from $35 to $40 a month, and as it is in the immediate neighborhood of the new Bronx court house, that such rental easily showed that the property, taken in damage parcel 2 was worth $40,000:

On the appointment of the two new members of the commission, the commission began by refusing to consider the testimony already given, saying: *“*Then we will have the testimony all over, the same as though none were taken whatever. ” Both sides objected and excepted to that ruling. Thereafter one witness was called for the.property, owners and one for the city, .and at the close of the record this entry appears in the minutes: “The commission overrule all objections entered by the respective parties, and have made their awards on all the testimony taken by them before this commission and the preceding one.”

Assuming that the owners would have the absolute right to use the strip of land as they pleased under the railroad, the experts for the property owners testified to the amount of damages as follows: Brown, for damage parcel No. 1, $5,289.97; parcel No. 2, $34,890; parcel No. 3, $4,995.88. Jackson, for parcel No. 2, $33,412; Hótaling, for parcel No. 2, $34,344; Cronin, parcel 1, $2,778.45; parcel- 2, $26,400; parcel 3, $3,157. The city’s witnesses, on the assumption that the property could be built on by the owners up to a height of fourteen feet, testified as follows: Berrian, parcel No. 1, $1,680.10; parcel No. 2, $19,613; parcel No. 3, $1,479.31.* Davies, parcel No. 1, $300; parcel No. 2, $3,540; parcel No. 3, $334. McHale,. on the same assumption, parcel No. 1, $188.36; parcel No. 2, $2,760.84; parcel No. 3, $208.86.

On the assumption that the railroad company had not exhausted all its rights and had an,easement over the whole of the strif) taken, Berrian testified that the damage to parcel No. 1 was $376.73; parcel No. 2,, $4,487.50; parcel No. 3, $334.18. On the same assumption, Davies, parcel No. 1, $250; *250parcel No. 2, '$>2,950; parcel No, 3, $2Y8.18. McHale, parcel No. 1, $25; parcel No. 2, $100: parcel No. 3, $24.

There ds no justification for the figures found by the commissioners, even assuming that the property owners by reason of the grant had no right to build upon the land. When we consider that this is an elevated railroad acquiring a right of way in the air, which attaches a diagram .to the grant of such right ©f way showing upon the property one elevated pillar, and expressly providing that said elevated road should always be fourteen feet above the grade, it is clear that there was left to the owners a beneficial use of such property, and. that they could build on it provided said building did not interfere with the right of way granted.

There is something that might be said in favor of the proposition that the grant did not confine the road to the use of one pillar on the property, but from the nature of the structure and the attaching of the plan I think that this was what was intended. The road acquired a hole in the air; the landowner held his land less that hole. In other words, his general right to build *usque ad coelem*had been cut down to fourteen feet, «but that he still had. Now the city takes all the land subject to the right of the railroad.

■ We cannot on this appeal act on the first report of the commissioners. If we could, we are inclined to think the award was excessive. But clearly the present award finds no support iiq the evidence. While it is true that in such cases commissioners are required to view the property taken and may exercise their independent judgment, still it is evident, we think,’ that this award was based upon an erroneous theory.

The order confirming the report of the commissioners is reversed and the matter remitted to new commissioners to be appointed!

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Order reversed and matter remitted to new commissioners to be appointed. Order to be settled on notice. 5⁄8