Ingraham, J.:
The argument in this case has extended over a wide range, involving the consideration and construction of wills and convey[583]*583anees of real estate, judgments in partition, and proceedings and statutes in relation to the opening and closing of Bloomingdale road, extending over a period of 200 years. It would be impossible, within the limits of a judicial opinion, to discuss all of the questions involved. The action is in ejectment, and the chain of title and the various instruments upon which it is based are set forth in the opinion of the learned referee.
The road thus laid out was located “ forward as the said Boad now lyes unto Thennis Edis’s and Capt. D’Kens thro’ the said Edis’s land,” which would indicate that at the time this report was made the road from Great Kills was in existence; but there is nothing to show that prior thereto it was a public road.
An act passed November 25, 1751 (3 Col. Laws N. Y. [Comp. Stat. Bev. Com.] 844, chap. 910), recites that in pursuance of the act of 1703 “ the Commissioners therein named for the City and County of New York did lay out a Boad of the breadth of Four Bods from the now dwelling house of John Horne thro’ Bloomendale District or Division to the now Dwelling house of Adrian Hoogelandt"; ” and it would appear that this road was treated both by the commissioners appointed by the act of 1703 in their report and by the Colonial Legislature by the act of 1751, as a road laid out and established under the act of 1703. In the patent of Governor Nicholas van Burgh and others, dated October 3, 1667, and in the deed from Webbers to Balme, dated November 2, 1713, which conveys tracts of land through which this road runs, no [584]*584mention is made of it as an existing road; and the same may also-be said of the deed' from Balme to Hoppe, dated August 13, 17141 And while this negative evidence is of slight force, as undoubtedly the road was in use prior to 1713, the date of the earlier of the two deeds above mentioned, it tends to confirm the statement in the act of 1751 that this road was actually laid out by the commissioners under the act of 1703. Judge Hoffman, in his treatise on the Estates and Eights of the Corporation of the City of Hew York, treats Bloomingdale road as laid out by the commissioners under the act of 1703; and the. survey that was made and filed on the 16th day of June, 1707, by the commissioners under that act is printed in the appendix to the Estates and Eights of the Corporation of the City of Hew York by Judge Hoffman. (Yol. 2, p. 250.) •
There is nothing to overcome the presumption that an open road existing in a country subject to the rules of the common law is a road in which the fee is vested in the adjoining owners, the public having an easement. This' presumption is stated in Dunham v. Williams (37 N. Y. 251) to be that the road “ was originally taken from the adjoining owners and for the sole purpose of being used as a thoroughfare.”
A piece of land which includes the premises in question through which the Bloomingdale road runs was, in 1714, conveyed to-Matthias Hopper, and subsequently became vested in John Hopper, who, on the 12th of October, 1778, made his last will and testament by which it was devised to his children and grandchildren, and on February 4, 1782, the devisees entered into a partition agreement by which this property was divided. Lot Ho. 6 on the west and lot Ho. 6 on the east side of Bloomingdale road, which included the premises in question, were set apart to John Hopper, the younger, and this partition was ratified by a conveyance from the other tenants in common. W6 think by this partition John Hopper, the younger, became seized in fee of the land on both sides of Bloomingdale road, including the fee of the road subject to the public easement. He made his will on the 13th day of September, 1815. He left surviving him his widow and three grandchildren, the children of a deceased daughter, Mary Striker. This will has. been the subject of much litigation, but was finally construed by the Court of Appeals in Striker v. Mott (28 N. Y. 82) as creating a. [585]*585trust to continue during the life of his three grandchildren, with a vested remainder in their heirs.
Of the grandchildren of J ohn Hopper, the youngest, Ann Striker, died April 17, 1860, without issue. Winifred Mott died March 16, 1862, leaving issue, and Garrit H. Striker died April 15, 1868, leaving two sons (James A. Striker, who died in 1900 without issue, and Ambrose K. Striker, who died March 16, 1883, intestate, without issue) and two grandchildren, Elsworth J. Striker, still living, and Joseph M. L. Striker, who died without issue June 13, 1883. The descendants of Garrit H. Striker would, therefore, be entitled to one undivided half of the property of John Hopper, the younger, and the descendants of Winifred Mott to the other undivided half. The fee of Bloomingdale road passed under this will to his three grandchildren and their heirs, subject to the trust, the premises in dispute, being a portion of Bloomingdale road as it existed at the time of the death of John Hopper, the younger. Winifred Mott, one of the devisees of John Hopper, the younger, died on March 16,1862, leaving her surviving four sons, Garrit Striker Mott, who died in 1869, unmarried and without issue; Jordan Mott, who died February 20, 1874, unmarried and without issue, and Matavus Hopper Mott, who died in 1864, leaving two sons, the plaintiffs, Hopper S. Mott and Alexander H. Mott, as his heirs, and his widow, the plaintiff, Ruth Ann Wallace; and the plaintiffs claim title to the property as the heirs at law of Winifred Mott, one of the grandchildren of John Hopper, the younger. The plaintiffs’ right to recover, therefore, depends upon their proving that the share of Winifred Mott, a devisee of John Hopper, the younger, in the bed of Bloomingdale road, vested in their ancestor, to which as her heirs at law they are entitled to an interest.
The very thorough discussion of the various questions presented by the learned referee, with whom in the main we concur, renders it unnecessary for us to do more than state our conclusions upon the objections taken by the learned counsel for the defendant appellant upon which he seeks to reverse the judgment. The first point is that Bloomingdale road in front of these premises was opened as a road during the time that this city was in the occupation of the Dutch government, and that, therefore, the fee of this road was vested in that government, and upon the conquest of Hew Hétherlands by the [586]*586English the fee of that road vested in the English crown and was transferred by the early charters; to the city of New York. But, as we have said, we can find no evidence to show that this road was a public highway prior to the transfer of the colony of New York to the British government, and the ordinary presumption applies that the fee of a road opened under the English common law remained in the former owners of the property, the public acquiring a mere easement. '
We are also, satisfied, in answer to the defendant’s second objection, that by the partition agreement between the devisees of John Hopper, the elder, John Hopper, the younger, became vested with the fee of the road adjacent to lot No. 6, which, by the partition agreement, was assigned to him as his share of the property.
The defendant also claims that the fee of the land was taken for the widening of Bloomingdale road under chapter 61 of the Laws of 1787, and that the plaintiff cannot, therefore, recover for the portion of Bloomingdale road that was acquired under the provisions of that. act. The question as to what interest would vest in the city or in the public, if a proceeding had been instituted under that act, the value of the land taken ascertained under it and the amount thus ascertained paid to thp owner, is not free from doubt. It is not necessary, however, that that question should be determined, as there is no evidence that any such proceeding was instituted or any such award made or paid to the owners of - the land necessary for the widening of Bloomingdale road. The Only evidence we have is that in 1782, when the property of John Hopper, the elder, was apportioned among his devisees, a map filed for that partition showed. Bloomingdale road to be two rods wide, while by the Dougherty map, made in 1820, showing the division of the property among the heirs of John Hopper, the; younger, the Bloomingdale road appears to be four rods in width. Certain proceedings of the common council are referred to by which Bloomingdale road was ordered to be widened to its full width of four rods, and that a committee of the common council was appointed to open the road and to confer with the proprietors of land on the subject, but there is. no evidence that any proceedings were taken under this resolution or that any award was made to the owners of the property taken to widen the road, and in Blackman v. Riley (138 N. Y. 318), in [587]*587speaking of these resolutions of the common council, the court said: “ The mere resolutions of the common council do not prove the fact that proceedings had been taken to acquire the title to lands which might be necessary for the purpose of widening a road. And if such proof had been given we do not think it can be assumed, in the absence of evidence, that the committee appointed by the common council to see that the abutting owners moved their fences back, performed that duty or exercised that power. * * * We cannot, in such case, presume action of which there is not the slightest evidence.” We can find, therefore, no evidence to show that the city of New York ever acquired the title to the fee of any portion of Blooiningdale road as shown to exist in the year 1820 of a width of four rods, and the presumption that in such a road the public had an easement and the fee remained in the abutting owners must control.
The next point insisted upon by the defendant is that under chapter 203 of the Laws of 1847 the city acquired the fee of Blooiningdale road. I do not agree with the referee that there was no evidence to show that the report of the commissioners in this proceeding was confirmed by the Supreme Court. On the contrary, I think the evidence quite conclusive that the report was confirmed and that both the city and the property owners acted upon such confirmation. The evidence that upon the back of the report there was an indorsement signed by the clerk of the Supreme Court that the report was confirmed by the court was in itself evidence of the action of the court confirming the report, and this, I think, would be sufficient, even without a formal order of confirmation; and the publication of the confirmation of the report and the action of the city, and the property owners, both in imposing an asssessinent for the cost of the proceedings by the city and the payment of awards by the city based upon such confirmation, was sufficient to require a finding that the report had been confirmed. Nor am I inclined to agree with the referee that the publication of the notice of the appointment of commissioners of estimate and appraisal and the publication of the notice given by such commissioners appointed in said proceeding was not sufficient to give the court jurisdiction. I think it clear, however, that the city acquired no title to the fee of Blooiningdale road, for the reason that the report of the commis[588]*588sioners specifying the property taken in the proceeding for which an award was made does not specify the fee of the street as a portion of the property taken nor was any award made for the fee of the street to the owners of the fee.
The act under which this question is presented is chapter 203 of the Laws of 1847. It is entitled “ An Act to lay out a new street in the twelfth ward of the city of New York, and to keep open a. part of the Bloomingdale road in said city.” Section 1 of the act provides that “All that certain piece or parcel of land situate, lying and being in the twelfth ward of the city of New-York and bounded and described as follows, that is to say : ” Then follows a description of a strip of land which includes the Bloomingdale road as then existing; and the section then continues, “ is hereby declared for all legal purposes to be one of the streets of the said city in like manner as if the same had been so laid out by the commissioners appointed in and by the act ” passed April 3, 1807 (Chap. 115).
After the passage of this act a, resolution was passed by the common council to open this road!, and, upon the petition of the city,, the Supreme Court appointed commissioners of estimate and assessment. In that petition it is alleged that the common council “ have deemed it advisable for the public convenience to open the Bloomingdale Boad from the Seventh Avenue to the Tenth Avenue in the Twelfth Ward of the said City, the said Bloomingdale Boad being a Street in that part of the said City laid out into streets, Avenues, Squares or public places by the Commissioners of Streets and roads under and by virtue of an act of the Legislature of the People of the State of New York, entitled ‘An Act relative to improvements touching the laying out of Streets and roads in the City of New York and for other purposes,’ passed April 3, A. D. 1807, by taking for that purpose the lands and premises hereinafter described and removing therefrom the buildings situate and being thereupon, which said lands and premises are situated and bounded as follows, that is to say.” Then follows a description of the property as. specifically described in the act of 1847. The petition further states that the petitioners “have accordingly ordered the said Bloomingdale Boad to be opened in manner aforesaid;” and. asks that in accordance with chapter 86 óf the Bevised Laws of 1813 (see § 177 et seq., as amd.) three commissioners of estimate and assess[589]*589ment be appointed for the purpose of performing the duties relative to the premises described in and by the said act mentioned.
On June 1, 1847, an order was entered appointing three commissioners in accordance with the prayer of this petition, and these commissioners filed their report on March 31, 1849. This report specifically describes by metes and bounds 122 parcels of land as the property to be taken for public use and for which awards are made, and there is annexed to this report a map which describes- the property taken for the improvement. Upon this map Bloomingdale road is laid out as an existing road. Parcel 27, for which an award was made, is a strip of land extending from Fifty-second street to within a short distance of Fifty-third street, one foot three inches in width on Fifty-second street and five feet in width upon the northerly side of the strip, which is described in the report as “ Commencing at the point of intersection of • the northerly line of 52nd street and the easterly line of the present Bloomingdale Road as the same is now opened and used and running thence easterly along the said northerly line of 52nd street one foot and three inches to the easterly line of the Bloomingdale Road as the same is to be opened; thence northerly along the said easterly line of the Bloomingdale Road as the same is to be opened, one hundred and seventy-two feet and two inches to land of Isaac Fitz and John Johnson; thence westerly along the said last-mentioned land Five feet to the easterly line of the present Bloomingdale Road as now opened and used, and thence southerly along the said easterly line of Bloomingdale Road aforesaid one hundred and seventy-three feet and six inches to the point or place of beginning; ” and the commissioners further reported that Edward Sandford, trustee of John Hopper, deceased, “ is seized in fee of, in and to the last above described piece or parcel of land,” and the commissioners awarded to Edward Sandford, as the owner of the said piece of land as described, the sum of $206. A similar piece of land is described on the westerly side of the present Bloomingdale road between Fifty-second and Fifty-third streets by a description substantially the same in relation to the road, and for which an award of $584 was made. The report makes no mention of the ownership of the fee of Bloomingdale road and makes no award for the rights of the owners of the fee. I think that by this proceeding the public neither attempted to con- [590]*590■ demn the interests of the owners of the fee of the bed of the street: nor acquired title of such fee, and that, therefore, the devisees of' John Hopper were not.divested of their property in the road by the-proceeding. ■
Section 6 of article 1 of the Constitution of 1846 provided that no-person shall be deprived of life, liberty or property without due proc^ ess of law, nor shall private property be taken for public use without just compensation. The devisees of John Hopper, the younger, owned the fee of this street, subject to an easement in favor of the People of the State. This fee was protected by this provision of the Constitution, and neither the State nor the municipal corporation could take that property for public use without paying therefor. The report of the commissioners evidently assumed that the right of the city or the public to use this road was as it then existed sufficient-for the purpose of carrying out the order of the common council opening this road, and no attempt was, therefore, made to acquire-the fee. The commissioners did not- assume to estimate the value, of the fee owned by the devisees of John Hopper, the younger, and made no award for its value, and' the final confirmation of that, report did not divest the owners of this property- of their interest therein.
Mor do I think that there was any adjudication in this proceeding that the city owned the fee, assuming that the proceedings were regular and the owners of the fee were before the court. Tftere was no-such adjudication in the report or in the order confirming it. There; is nothing that determines that the city owned the fee. There already existed a public easement to- which the fee was subject, and whether the commissioners assumed that that easement was sufficient to carry out the purpose of the act ¡and the object of the city in opening the-street, or assumed that the fee of this street then vested in the city, is entirely immaterial. If, as a matter of fact, these plaintiffs-owned an interest in the fee of the street, they could not be divested thereof, except upon payment to them of its value.
When this report was presented to the court and .it was seen that the commissioners had made no attempt to determine the value of’ this property, the owners of the fee of the road had no reason' to appear and object to that report as their property in the street was-not affected. Whatever they had before the proceeding was com[591]*591menced they still had after the confirmation of the report, and their ownership of this property was, therefore, unaffected by the proceeding, If the commissioners had determined that the interest of the owners of the fee of this road, subject to the easement, was of merely nominal value, and had made a nominal award, and their , report had been confirmed, then of course there would have been an adjudication as to the value of the interest of the owners of the fee which would have been binding upon the. owners, and the fee would thereupon have vested in the city of Hew York. But in the absence of such a determination by the commissioners, by which the value of the interest of the plaintiffs or their predecessors in title in the specific property was ascertained and an award made therefor, I can find no authority for saying that there was an adjudication that ho one except the public had an interest in that property. If a proceeding was commenced to condemn a block of land for public use, and the commissioners left out of their report any reference to one specific lot included in that block, I do not imagine that it could be claimed that the confirmation of such a report was an adjudication that that particular lot was worth nothing, or that the city could get a title to it without paying its value. Before the property can be acquired by the city it must pay its value, to be ascertained by the report of commissioners or the verdict of a jury. The pieces of property for which awards were made were bounded by the side of the existing road and not by the road itself, so that by no construction can it be claimed that the award made for these abutting pieces of property did include the right of the abutting owner to the road itself. Hor was the payment of the award to the trustee the payment of an award made for the fee of the street; and thus the receipt by Edward Sandford, the trustee, assuming that a payment to him would have divested the plaintiff of the fee of the street, if an awaz-d had been made for that fee, does not estop these plaintiffs from insisting that the award that was made and received was an award for the property abutting on the street which was taken for the "opening of the stz*eet.
The next point relied upon by the defendant is that “ Whatever may have been the actual legal effect of the proceedings taken in 1847 for the opening of Broadway, the Oity of Hew York has been in possession ever since, Under those proceedings, claiming that the [592]*592street had been regularly opened under the Act of 1813, and that it was entitled to a fee therein.” This position seeins to be based upon the fact that the city had acquired by-adverse possession the fee of the street; but there is not the slightest evidence that the claim of the city in the street, down to the time that the street was closed and the defendant’s predecessors in title took possession of the property, was adverse to the plaintiff. It is conceded that there was. an easement to which the fee of the Bloomingdale road was subject, and the possession of the public continued after the proceedings, based upon the act of 1847, as it had before existed. There is nothing to show: that the city or the public claimed any other or greater right in this street after the confirmation of the proceedings taken under the act of 1847 than had before been exercised for many years.
The next objection taken by the defendant is that by the actual partition made in pursuance of a judgment of the Supreme Court, entered in an action for that purpose on the 10th day of January, 1865, the right of the plaintiffs to the fee of the road was divested.
After the death of John Hopper, the younger, in the year 1820, a proceeding was commenced in the Court of Common Pleas of the city of Hew York, called the Mayor’s Court, asking for a partition of the property, the petitioner in that proceeding being Ann Striker, one of the grandchildren of John Hopper, the younger, and the defendants being the other grandchildren, the parties being the devisees of this property in question named in his will. Commissioners to partition the property were duly appointed and it was determined that the rights of the parties “ are as in the said' petition set forth, and that partition be made.” And the commissioners “ did set apart, allow and assign unto the said Ann Striker, the said plaintiff or petitioner, in severalty, for her part and share of the said premises, according to her right therein, as the same is ascertained and determined by the said Court, all and singular the several lots, pieces or parcels of land and premises, with the appurtenances thereto,” and then follows a particular description, of the property set apart to Ann Striker. One of the pieces of property thus set apart to Ann Striker began at a point on Bloomingdale road and land belonging to Cornelius Har- [593]*593' sen, and running thence by metes and bounds back to the Bloomingdale road, and thence along the said Bloomingdale road 201 feet to the place of beginning, a description which would clearly include the fee of one-half of the Bloomingdale road upon which this piece of land abutted, and this partition, if carried out, would have vested Ann Striker with the fee of Bloomingdale road which includes the premises in question. On the 15th of February, 1823, this report of the commissioners was confirmed by a final judgment. Annexed to this judgment was a map which was introduced in -evidence, showing the property set off to Ann Striker by this judgment.
If this decree in partition had been valid, there can be no doubt but that Ann Striker would have acquired the fee of that portion •of Bloomingdale road the title to which is included in the present •action. And in April, 1821, the parties to the said"action executed to each other releases of the- shares or portions allotted to each in severalty. Under this decree of the Mayor’s Court, the grandchildren entered into possession of the portions set apart to them in severalty until their death. Ann Striker died without issue in 1860, whereupon an action of ejectment was commenced in the Court of-•Common Pleas in tlie city of New York to recover a portion of the zeal estate of John Hopper, the younger, the plaintiff claiming that "he had acquired title to that portion of the property by virtue of a deed from the sheriff executed on a sale under execution and a judgment entered against Grarrit TI. Striker, one of the devisees under the will of John Hopper, the younger. That case came before the ■Court of Appeals in Brewster v. Striker (2 N. Y. 19). It was there held that by the will of John Hopper, the younger, the devise,, •over was to the surviving grandchildren or grandchild on the death •of those who should die without lawful issue then living; “that the limitation over was valid as an executory devise; and that as the three grandchildren were still living, Striker, under whom the plaintiff claimed, had no vested estate in remainder or future estate in Any part of the premises which could be sold under the judgment Against him, or which could pass by a sheriff’s deed to the purchaser; ” that the executors took by implication the present legal estate in the premises as trustees and that the grandchildren of the testator took [594]*594no immediate legal estate which could pass hy sale under the judgment ; that the partition proceeding in the Court of Common Pleas was ineffectual to vest any legal title in either of the parties to the action, as the legal title vested in the trustees under the will.
Subsequent to this decision an action was commenced in which it was claimed that on the death of Ann Striker without issue, the ■third part of the Hopper estate became vested in the surviving grandchildren of John Hopper, the younger, in fee simple by virtue of the limitation over in the Hopper will. The executors and devisees of Ann Striker brought a cross action claiming that they took under the will a fee simple. The trustee brought another action to establish the trust of the Hopper will, he insisting that by a proper construction of Hopper’s will the executors took a trust in all the shares until the death of the last survivor of the three grandchildren. These actions came before the Court of Appeal's in Striker v. Mott (28 N. Y. 82). Denio, Oh. J., in delivering the opinion of the court, states the question to be “ whether Ann Striker was seised, at the time of her death, of an estate of inheritance in the premises in controversy.” He then calls attention to the terms'of the Hopper will and to the partition action commenced- in the Mayor’s Court of the city of Hew York in October, 1820, the decree in that action, and the partition deeds executed between the respective parties allotted in severalty to each of the devisees, and states that the Supreme Court had decided that Ann Striker had no estate in the premises of which John Hopper had died seized in her lifetime, and that as to the judgment in partition and the partition deeds, their only effect was to adjust the share of the rents and profits to which the devisees would respectively be entitled during their lifetime; and that if, by their terms and • legal effect, they would take a greater interest under the judgment and deeds, they ought to be deemed void in equity and be vacated arid annulled accordingly. The court then referred to the decision of the Court of' Appeals in Brewster v. Striker (supra) as holding that the grandchildren took no immediate legal estate, the executors of John Hopper taking such an estate- as trustees by implication. It was also-held that the estate, of the executors or trustees ceased upon the death of Ann Striker as to the qne-third of the estate devised for her benefit; that the judgment in partition and the deeds executed between [595]*595the devisees of Hopper, to carry that partition into effect, conveyed no present title or interest in the estate; that the executors were seized of an estate for life and were entitled in equity to. the rents and profits; that the deeds could not have any effect by way of release because the grantors had no estate which it could operate to enlarge; and the chief judge concluded: “ Taking this will altogether, I understand the successive estates in each third part of the land to be limited as follows: First, to the trustees for the life of the grandchild for whose benefit that third was devised, remainder to the issue of that grandchild, if he or she shall have issue, in fee; but if he or she shall die without issue living at his or her death (which last qualification results from the subsequent limitation to the survivor of the grandchildren), then remainder to the grandchildren and the survivor of them. Second. This second remainder is contingent, though it would have been vested if the first remainder had been for any estate less than a fee simple. * * * Hence Grarrit H. Striker and Mrs. Mott had no estate which they could convey to Ann Striker by the deed under consideration, and hence, also the devisees of the latter took nothing by the devise formally made in their favor.”
Applying the principles established by these decisions, upon the death of Ann Striker without issue, the surviving grandchildren became vested in fee simple with the undivided third of the property that had been held for Ann Striker during her life. Whereupon an action was brought in the Supreme Court for a partition of the property of John Hopper, the younger. The premises abutting upon the portion of Bloomingdale road in question were described as beginning at the corner formed by the intersection of the northerly line of Fifty-second street with the easterly line of Broadway; thence northerly along the said easterly line of Broadway one hundred and seventy-seven feet and nine inches to the land of several owners; thence in a southeasterly direction along said land of several owners to the westerly line of Seventh avenue; thence southerly along the westerly line of Seventh avenue to the northerly' side of Fifty-second street; thence' westerly along the northerly line of Fifty-second street ninety-six feet and three inches to the point or place of beginning; “ Together with all the right, interest, claim and demand whatsoever present or prospective [596]*596vested or contingent of the owners of such last mentioned tract, piece or parcel of land in the streets and avenues adjoining the same by reason of the beds of such ¡streets and avenues or any part thereof having been taken pursuant to the statutes in that behalf made and provided from such owners to form such streets and avenues.” And the property upon the westerly side of Broadway opposite the premises described as set forth in the complaint was also described.with a similar provision. The complaint contained the further provision that “ the said plaintiff further shows that on the twenty-eighth day of November, one thousand eight hundred and twenty, a petition was presented by said Ann Striker, one of the devisees of the said will of said John Hopper, to the Court of Common Pleas for the City and County of New York, called the Mayor’s Court, praying for a partition of certain portions of the real estate devised in and by such will, and setting ,forth among other things that she, the said Ann Striker, was tenant in common of an equal undivided third part of' the premises named in said petition which were the same lands, tenements and hereditaments hereinbefore described; ” that such proceedings were afterwards had upon such ¡Detition that commissioners were appointed to make partition of said premises, and did make such partition; that the said proceeding for partition in said Court of Common Pleas and certain mutual simultaneously executed deeds of release thereupon executed between the said parties in interest, purport to allot and set off in severalty unto the said plaintiff, G-arrit H. Striker, a certain portion of the said lands, tenements and hereditaments described, and also to set off and allot in severalty to the defendant •Winifred Mott another portion of the same, and unto the said- Ann Striker, then deceased, another portion of the same; and that in any partition of the said lands, tenements and hereditaments described and so devised by said John Hopper, which may be adjudged or made in this action, it will be found convenient and agreeable to equity that the respective shares to be allotted and set off in sever-alty to the said G-arrit H. Striker and the said Winifred Mott respectively shall be taken from that portion of the same lands, tenements and hereditaments described and so devised as aforesaid which were so set apart in severalty as aforesaid to said Ann Striker in the said former partition.
[597]*597To this complaint there was no answer, and judgment in partition was entered on the 31st day of March, 1864. This judgment directs that partition 'be made of the lands and premises of which partition is demanded, so that the several parties whose proportionate shares in the whole are mentioned shall have and hold in severalty such parts and portions of the said lands and premises as shall be allotted and assigned to them respectively on such partition. These commissioners made their report on December 31, 1864, which recited that they had caused an accurate map to be made and had filed the same' in the office of the register; that upon the said map these large parcels or blocks were divided into city lots with reference to the established streets of the city, and actual partitions of the property were made with reference to this map, a copy of which map was introduced in evidence. The lots on the east side of Broadway, between Fifty-second and Fifty-third streets, were designated by the numbers 76 to 82 on the map, and those on the west side, between Fifty-second and Fifty-third streets, by the numbers 83 to 89 on the map. The commissioners further reported that they had ascertained whether they might consistently, “ with the rights of the parties and with justice and equity, make the partition of the said lands and premises conform to the respective occupations in severalty of one equal third part thereof enjoyed by the said G-arrit H. Striker and by the said Ann Striker and by the said Winifred Mott respectively, and we did, therefore, accordingly divide the whole premises into three principal divisions, one thereof being identical with the. portion so occupied in severalty by the said Ann Striker, deceased, in her lifetime, and one other division being identical with that portion so occupied in severalty by the said W inif red Mott, deceased, in her lifetime, and the said remaining division being identical with the portion so in the occupation in severalty of the said G-arrit H. Striker.” The commissioners then allotted to the said Garrit S. Mott, as one of the children of Winifred Mott, lots 79, 80, 81, 82 on the easterly side of Broadway, and 86, 87, 88, 89 and 172 on the westerly. side of Broadway, the lots on the easterly side of Broadway being described as follows: “Also those four lots, pieces or parcels of ground situated in said 22nd Ward of the City of New York, designated on said map by Nos. 79, 80, 81 and 82, and together described and bounded as follows: Beginning at a point in the east[598]*598erly side of Broadway distant 29 feet and 7 inches southwardly from the southerly side of 53rd Street, and running thence southwardly along said easterly side of Broadway 99 feet 10£ inches, thence east-, wardly on a line parallel with said 53rd Street 115 feet inches to the west side of 7th Avenue, thence northwardly along said westerly side of 7th Avenue 77 feet and 5 inches to land of several owners, and thence northwestwardly along said lands of several owners 141 feet 6§ inches to said easterly side of Broadway at the place of ' beginning.” . This report was confirmed by a decree entered on the 10th day of January, 1865, by which it was adjudged and decreed “ that the said hereinbefore described part or allotment of the said lands and premises allotted and assigned as aforesaid by the said commissioners to the said defendant Garrit Striker Mott as the part or share-of the said lands and premises constituting his share of the said land and premises shall be and the same is hereby vested in him, the said Garrit Striker Mott, in severalty to be had, held apd enjoyed by him, his heirs and assigns forever separate and apart from the other parts of the said lands and premises.” -
I am inclined to think that under this decree the fee of the Bloomingdale road was included with the abutting property. The partition proceeding in the Court of Common Pleas was based upon a construction of the will by which the land devised by John Hopper,. the younger, was vested absolutely in his grandchildren, and in that proceeding there was set apart to each of the grandchildren a certain portion of the property in. fee. The effect of that proceeding, if the construction of the will had been correct, would have vested in each of the grandchildren the fee of one-half of Bloomingdale road upon which, the property assigned abutted. That partition suit having been based upon an incorrect construction of the will, and the effect of that partition being merely to assign the particular portions of the real property to which each grandchild was entitled during his life, the issue of the grandchildren having a vested remainder in their parents’ share of the estate, one of the grandchil-. dren having died, this partition suit was commenced in 1865 to have a final partition of the estate, and in the complaint it was asked that the several parts that had been set apart to each grandchild' under the decree of partition in the Court of Common Pleas in the year 1820 should be set apart as the property to which the descendants [599]*599of the grandchild should be entitled; and the interest in the abutting streets was described as a part of the property that had been set apart to the grandchildren and of which partition was asked. The interlocutory judgment directed the commissioners appointed to make partition of the lands and premises of which partition is demanded, as follows: “ And in respect of the several portions of said lands and premises so occupied in severalty by the said Winifred Mott and Garrit H. Striker respectively, it is declared, decreed and adjudged to be just and equitable that as fab as may be found consistent with the rights of other parties the partition hereinafter directed should be made to conform to such occupation in severalty to the end that there may be allotted and assigned to the issue of said Winifred Mott and the assigns, if any, of such issue or of any of them for that equal third part of the said lands and premises which so as aforesaid came to said sons of said Winifred Mott by the said devises to them respectively contained in the will of the said John Hopper the portion so occupied by the said Winifred Mott or so much thereof as may be and so that there may be allotted and assigned to the trustee under the said will for his equal third part of the said lands and premises under said John Hopper’s will the portion so occupied by the said Garrit H. Striker or so much thereof as may be.” In pursuance of this direction in the decree the commissioners reported that they had divided the whole premises, which included the interest in the street, into three divisions, one thereof being identical with the portion so occupied in severalty by the said Ann Striker, deceased, in her lifetime, and had allotted the portions •so occupied by Winifred Mott, deceased, in her lifetime to her children. The particular portions allotted to each child were then des'cribed by the map and also by a particular description.
If the property had been awarded by simple reference to the map it would have carried with it one-half of the Bloomingdale road upon which these lots abutted; and if there had been no reference to the map, and the property that had been awarded was to be ascertained solely from the description, the fee of the Bloomingdale road would have been excluded. The question then comes down to one of intention. Oonsidering the situation, that the action was brought to partition all of the property in which these tenants in common were interested, that the complaint described the interest [600]*600in the fee of the street as well as the abutting property that was to-be partitioned, that the commissioners were directed to partition the property of which partition was demanded, so far as could be to-carry out tlm partition of 1820, which partition would have vested in the abutting owners the fee of the streets, and that the commissioners reported that they had complied with this direction, and to carry that out allotted these specific lots to Garrit S. Mott, I think we can find here an intention to include in- the award of these lots one-half of the Blootningdale road upon which the lots-, abutted. But when Garrit S. Mott came to convey this property he adopted a description of the property that he then conveyed,, which excluded the fee of the street. It is true that the deed also-' referred as a part of - the description to the number of lots upon the-map upon which the division in the partition suit was made; but-assuming that we could find from the existing situation at the time of the partition suit, and the object for which the partition suit was-brought, an intention to vest in Garrit S. Mott the fee of the street, there is nothing to show that when he subsequently conveyed these lots to Dudley Field in March, 1865, he intended to include the fee of the street; and as the plaintiffs are the successors in title of Garrit S. Mott, they would be entitled to at least the judgment that has ■ been granted in this action.
In Potter v. Boyce (73 App. Div. 383 ; affd., 176 N. Y. 551) we based a conclusion that ip was intended to include the fee of the street in a partition of property between tenants in common upon the intention of the parties to be ascertained from the existing conditions, although the description, standing alone, without such evidence of intention, would be insufficient to convey the street. Applying that rule, it might be that upon the division of this property in the partition action, such an intention could be ascertained and carried into effect; but, as before stated, there is nothing to show that when Garrit S. Mott undertook to convey to Field he intended to convey the fee of the street,, when he adopted a description which by itself would exclude the fee. I do not think that a mere reference to the map is sufficient to show that the description .which in express terms excluded any interest • in the street was intended to include the street; and while the fact that the property was sold by a reference to the map would justify evidence of in ten[601]*601tion to include the interest in the street and justify a finding, if such intention was established, that the fee of the street was included, I do not see, in the absence of evidence to show that such was the intention, that the court is justified in construing the grant to include the street when the description of the property by metes and bounds expressly excludes it. Assuming, therefore, that we would be justified in holding that this judgment in partition actually did vest the fee of the street in Garrit S. Mott, there is nothing to show that he intended to transfer it to Field, through whom the defendant claims title.
There is one other point relied upon by the defendant, based upon chapter 890 of the Laws of 1869, relative to the widening of Broadway between Thirty-fourth and Fifty-ninth streets, which, the defendant claims, in some way 'divested the owners of' the fee in the Bloomingdale road and vested it in him. This claim is based upon a provision of section 2 of the act that “ if any part or parts of Broadway shall be closed underthe pro visions of this act, any owner of land now fronting on Broadway, abutting on any part so closed, may acquire an exclusive right, title and interest of, in and to so much of any part so closed as lies between the present front line of the land owned by him and the line of Broadway as it may be so as aforesaid located and established "x" * * upon paying to the chamberlain of the city of New York, for the mayor, aldermen and commonalty of the said city, the amount of any award by|the said commissioners of estimate and assessment, for the discontinuance of the public use of the land such owner is so entitled to acquire, and also paying to the said chamberlain, for the parties entitled thereto, the amount of any award by the said commissioners for the reversionary interest in such lands, or any part thereof; . * * * but no award shall be made for the reversionary interest, in case the parties having such interest shall be entitled to acquire the land.” It seems unnecessary to consider this provision as having the effect of divesting these plaintiffs of their interest in this property and transferring it to another without their consent. Whatever right the city of New York acquired by this statute to condemn property for public use, it certainly could acquire no right to condemn property for the private use of the owners of adjacent property. Neither the Legislature nor the city could divest the plaintiffs of their property in [602]*602this street for any but a public use. These plaintiffs at the time of the passage, oí this act were the owners of the fee of a portion of Bloomingdale road, subject to a public easement, and when the public discontinued its use of the land constituting the road, the land belonged to the plaintiffs, discharged from the public easement to which it had before been subject.
I have now, as concisely as I could, stated the views that have forced me to the conclusion that the plaintiffs are, and the defendant is not, the owners of the fee of this strip of land forming a part, of Bloomingdale road, and the plaintiffs were, therefore, entitled to a judgment awarding them the possession of the property.
Upon the plaintiffs’ appeal from the judgment little need be said. The plaintiffs’ predecessor in title granted to the defendant’s predecessor in title this property abutting upon Bloomingdale road as an existing road. The plaintiffs’ predecessor in title being the owner of the fee of Bloomingdale road upon which this property abutted, there followed from the grant to the defendant’s predecessor in title a right, which was appurtenant to the land granted, to use the grantor’s interest in the Bloomingdale road as a means of access to the- property granted, and the plaintiffs’ property in the road is clearly subject to that easement. When, a person owning property abutting upon a road, whether public or private, conveys the abutting property to another, bounding it on the road, he subjects his interest in the road to an easement in favor of the property conveyed ; and without citing the authorities that have established that proposition,, it is sufficient to say that it is the settled law of this State. Neither the act of 1869 nor chapter 1006 of the Laws of 1895 could appropriate this property right vested in the plaintiffs and discharge the servient estate from the easement.
It follows that the judgment appealed from must be affirmed, but as both parties have appealed it should be without costs.
Van Brunt, P. J., and O’Brien, J., concurred; McLaughlin and Hatch, JJ., dissented.
The opinion of the referee will he found at page 608,