The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-06-04
0PEIMG OF THE FOURTH AVENUE.


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Supreme C0urt-Gcner raj Term.
DISSENTING OPINION OF HON. JUDGE cLERKE
JUNE st il admitted in the case, by poIn
counsel, that Margaret G. Mc5own IN 1850 convey
ed to Sanford and others the block now owned
chiefly by Houghton, bounding u on the west Dy
"the Fourth avenue" but describing IT as contain-
ing $40 feet in depth. BY mesne conveyances, con
tanning the same description and designating ING
was vested in 8 b. McGown. On the 18th January,
1913, Judgment was recovered against .. 3. NC
Gown for a specific performance OF CONTRACT 10
@ be s sock the
west by "the Fourth avenue" adding In explanation
Of the term Fourth avenue" that "it should be
taken at the width Of 100 feet, as originally laid
out" The blocks in question were directed to
be conveyed to Bayard Clarke, an assignee OF
the plaintiff in the Judgment. A deed bearing
date the 18th November, ls4s, as directed by the
judgment, was executed by McGown to Clarke con-
yeying the block, together with all the right,
title, and interest Of the parties Of the first part
to the adjoining streets and avenues" and follow
ing the description in the Judgment, although not
should be taken at the width Of one hundred feet a.
originally laid out" The Judgment, indeed, Is not
referred to at all in the deed in direct terms, and
| one of its requirements is omitted, showing that
there was some subsequent consent Of the parties to
modify it but nothing whatever appears, either IN
the deed otherwise, that it was their intention to
vary the judgment in the dimensions or description
of the premises, or in tho degree, extent or guam
tty of the interest directed to be conveyed. There
is nothing to imply an intention by the grantor
| grantee TO alter the Specification OF the term
Fourth avenue" except the omission in the deed
of the explanatory words which have quoted from
| the judgment 1t is admitted in the case, that
Clarke conveyed to Sluyter portions Of the block
| bounding il upon the Fourth avenue, and that
examining the dimensions of the lots, ii appeared
that the block conveyed by Clarke to Suyter as
| Of the dimensions OF nine hundred and twenty
| feet in depth. The question, therefore, to be
| determined, is whether Clarke on receiving the
| conveyance from McGown, pursuant to the judg
ment accepted the land, curtailed Of twenty feet
its western line, bounding it by the Fourth avenue
| as widened and not by the Fourth avenue taken at
the width Of one hundred feet, as originally laid
out for il Clarke did not consent to this it cannot
| be pretended that any subsequent owner did. What
is the evidence that he consented, giatuitously, 10
relinquish SO large q proportion OF his land Tor the
| public use? II is granted that there is no express
and positive language or act indicating any such
| intention, but that there is enough in the vague
| manner in which the Fourth avenue is referred to,
Ga term confessedly bearing two signifcations) to
show a constructive dedication. l confess cannot
anything in the proceedings of either Of the par
ties, or in what is expressed or omitted in the con-
veyance, to warrant any such supposition-a suppo-
stion which would deprive man of large proper
ton OF his land without compensation We must bear
in mind that if the dedication was made at ALL it was
made by Clarke for il | understand the judgment
correctly, McGown was obliged to convey the land to
the Fourth avenue, taken at the width of one hun
bred feet originally laid out These words, to be
sure, follow the tenth section Of the Judgment which
is divided into ten sections, each section relating TO
separate portion of land, and directing to whom II
to be conyeyed the eighth section, relating to the
block in question, directing the conveyance to
Clarke. The tenth section being the last, the expla
natory words relating to the meaning Of the term
| Fourth avenue" were naturally and properly
placed after that section, to save the necessity OF
repeating them after each Of the ten sections; and
there is reason TO suppose, from the circumstan
ces, that these words should be more applicable to
the tenth than to any other section in the judgment
But the explanatory reference is in itself conclusive;
far,f that fln
should be TAKEN" &C., "herein," clearly signying
Sin this judgment" not merely this section, and
that the object was to avoid tautoogy. 1t is, there
FORE to some act Of Clarke that we must look for
| this intention. No option was reserved to his
gTantor by the judgment, repeat, Clarke was en-
titled to the 900 feet. 1t matters not what McGown
| intended, without the concurrence of Clarke; he
was bound to convey to Clarke the blocks contain
ing those dim ensions in depth What reason is there
for implying that the latter surrendered the right
to twenty feet of those dimensions along the whole
western boundary OF this land, IN the absence of the
least title CT proof fany adequate motive or OF any
Indictment or.compensaton, unless to as
sumo in him degree of civic worth and public
spirit 70 rare that it will be prudent not to presume
tic possession of it by any citizen in these degcae
late daysl To suppose that he gratutousy gave up
Ills large strip OF his land for the widening of
OF the thorouehares of the city would be implying
more than We are authorized, at all events from the
circumstances OF the present case, to presume. The
mere omission in the deed from McGown to Clarke of
tic number Of feet the depth of the blocks does not
consider that in eight months after the execution
and delivery Of this deed, he expressly shows that
he contemplated no such thing. In the conveyance
OF Clarke to Sluyter, in October 1852 the block is
conveyed as of $40 feet in depth Of course to the
original line of the Fourth avenue" the hundred
feet wide Fourth avenue" which most people
knew to be the only Fourth avenue" How,
;hen, can it be inferred, that when he received
the conveyance from McGown, he relinquished
| lis right to what the Judgment gave him?
| Here Is an express as sertion of his right, in
| opposition to very equivocal omission of
words, which were merely explanatory, and which
| left the term, 'the Fourth avenue" without those
words in McGown's deed, to say the least as capa-
bic OF one Interpretation rs the other Clarke
knew, presume, If he had dedicated the land to
The public use and was content to accept the block
| from McGown, bounded by the contemplated line
OF the Fourth avenue, as directed to be widened by
| the act Of 1887, its depth from the Third to the
| Fourth avenue would be only 900 feet. The mere
| Circumstance that the Conveyance from McGown
| to Clarke did rot specially refer to tic judgment,
end that there seemed t. be some deviation frorl
II IN other respects is very insufficient reason for
! concluding that he was willing to depart from the
substance of the judgment essentially as to aban-
! don, without any apparent consideration or com.
| pensaton, or adequate motive, considerable pro-
portion Of the property to which it entitled him.
The only safe rule, and the only rle by which the
constitutional right to private property can be pre-
served, Is 10 reject all doubtful claims Of dedication;
and, for my part, would reject any claim not con-
! siderably more explicit than this. II We are not
| willing to forget where we are-that we are living
under political regimen which regards private
property as most sacred and nyiolablc, and that
are not living in the meridian of St. Petersburg or
OF Grand Cairowe should, In all cases, insist, as
this court at general term in this district has before
insisted, that constructive dedication can only be
effected by clear uDequvocal, and decisive acts Of
the owner, amounting to the explicit manifestation
OF his Will to make permanent abandonment Of
the thing dedicated. For these reasons the order
confirming the Commissioners report should be re-
yersed. fully confer with my brethren the other
questions presented in this matter.
Cars FOR THE NEw RourE TO BosToN.-Six