Barber v. Woolf

90 Misc. 106

• Court: New York Supreme Court
• Decided: April 15, 1915
• Status: Published

Opinion

Newburger, J.

Pursuant to a judgment of foreclosure of a tax lien a sale was held, and the purchaser now asks to be relieved from his bid on the ground that one Minzesheimer has or may have private easement of light, air and access over the land sold. It is conceded that, under the authority of Jackson v. Smith, 153 App. Div. 724; affd., 213 N. Y. 630, the judgment herein does not bar any easement which Minzesheimer may have if the easements survived the proceeding taken under the so-called Street Closing Act (Laws of 1895, chap. 1006). In the proceedings for the closing of Rockwood street Minzesheimer was awarded damages to his property. As was said by Mr. Justice Scott in Matter of Uclinger, 160 App. Div. 103: There remains, however, in many cases and very probably in the case of property abutting upon Madison avenue, a third class of easements, also private in their nature, which arise from express or implied grants between the owners of the property confined and abutting upon a street or avenue. Such private easements are created, for instance, by the conveyance of a lot with reference to a map or plan, in which one of the boundaries of the lot conveyed is the abutting street. With this class of private easements the city has usually no concern either to abolish or to preserve them, and it certainly cannot be compelled against its will to compensate for them. The distinction between these two classes of private easements was very clearly made in Johnson & Co. v. Cox, supra, where both were present. That ease, reaffirmed in Matter of Mayor, etc. (Walton Ave.), 197 N. Y. 518, contains the latest authoritative pronouncement by the Court of Appeals as to what easements are and what are not to be compensated for when a public road is discontinued and closed. The same subject has recently been exhaustively considered with a review of the precedent authorities by Mr. Justice Laughlin, writing for a unanimous court. Matter of City of New York (New Avenue), 153 App. Div. 164. The easements, sometimes called private, but really special or quasi public, of light, air and access, arising from the fact that private property abuts upon a public highway, are to be compensated for if the highway is closed and the easements thus destroyed. Other private easements arising from express or implied grant are not destroyed by the closing of the highway and.are, therefore, not to be compensated for, and this is true although the strictly private easements may affect the same property, and confer the same rights over the same strip of land as those arising from mere contiguity to the street. As a general thing no public interest requires the extinguishment of the strictly private easements of the class last defined. If the property respecting which the relator claims damages is subject to easements of this nature it is not due to the existence of a highway in front of the property, but to the fact that his predecessors in title and the owners of other abutting property elected, as between themselves, to create reciprocal easements over the bed of the highway. These are not extinguished by the legal closing of the street in a public highway.” So also in Matter of City of New York (Grand Boulevard), 160 App. Div. 80; affd., 212 N. Y. 538, it was held that private easements created by grant, express or implied, are not destroyed or extinguished by the closing of a street under the act of 1895. In view of these authorities the application of the purchaser to be relieved must be granted.

Application granted.