In re Hallett & Howland Streets

135 N.Y.S. 823

Opinion

KAPPFR, J.

[1] It seems to me that the objecting property owners speculated on obtaining an award for the taking of their slight encroachment upon the proposed street when they permitted the opening proceeding to continue until the arrival of the time for confirmation of the report of the opening commissioners.

If by reason of the alleged prior dedication the opening proceeding were unnecessary, the objections should have been taken on the motion to appoint the commissioners when the property could have been exempted from assessments in the order appointing the commissioners. Matter of City of New York, 45 Misc. Rep. 162, 164, 91 N. Y. Supp. 894.

I think it is now too late to claim that opening proceedings were not required. The proceedings being therefore regular, and the property in question being duly acquired for street purposes, the remaining question, whether or not these encroachments should be compensated for in this proceeding, is presented.

[2] The objecting property owners purchased their lots as laid out on a map made by the common grantor and which showed the lots fronting on the street in question. The fee of the street was not included in the grants. The subsequent encroachment by the objector on the street was without right. It did not give them any title to so much of the mapped street as they thus invaded. They did this at their peril and cannot have damages therefor, under the circumstances here shown. To give them an award for the taking for street purposes of the part of the street upon which they have encroachments required payment therefor by the other owners who made like purchases but who refrained from encroaching. This ought not to be sanctioned, and I think that the commissioners were justified in regarding the property in question as unlawful encroachment only and the erectors not entitled to compensation.

It may be added that the encroachments are so slight, being but an inch or- two at the most, that little or no apprehension ought to be afforded that they will ever be subjected to interference.

The motion to confirm is granted.