Henry S. Fearing et al., Executors, etc., Respondents, v. Robert Irwin et al., Appellants

Henry S. Fearing et al., Executors, etc., Respondents, v. Robert Irwin et al., Appellants. (Argued December 19, 1873; decided January 20, 1874.) Iti. case of the submission of a controversy without action under the Code (§ 372), the court is confined to the facts agreed upon, and can make no inferences, or in any way depart from or go beyond the statement presented. In a case so submitted, where the question was as to whether plaintiffs could, convey a clear title to lands, over which certain .highways passed, which were claimed .by plaintiffs to have been closed by law, it was admitted that if said highway shall have been closed by law, the title to the abutting half of each of them (the land in question) will revert to the estate of plaintiffs’ testator. Held, that the admission, although involving questions of law, was, for all the purposes of the submission, to be taken as a.statement of fact, and was controlling. The legislature has power to pass an act for the closing of streets in the city of New York, and to effect that purpose through such local officers or municipal board or organization as it shall choose, and can prescribe the .particular action thereof which shall w<p;k the result. An act, closing a street in said city is not unconstitutional because it does not provide a compensation to the owners of adjoining lands who are deprived of a right of way therein, where another street is left giving access to such lands; as in such .case the owners .sustain no actionable damages. By the act of 1867 to alter the map or plan of certain portions of .the city of New York, etc. (chap. 697, Laws,of 1867), the power of the common council over the streets in the specified territory was supplanted by that of the commissioners of the Central Park; and upon the filing of maps by said commissioners, in accordance with the provisions of said act, the streets not appearing thereon were legally closed. Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, entered on a case submitted under section 372 of the Code. The facts admitted were substantially as follows: Daniel B. Fearing, plaintiffs’ testator, died seized of certain lands adjoining “Bloomingdale road” and “Apthorp’s lane,” in the city of Hew York. These lands were divided into lots and sold at public auction by plaintiffs. Defendant Irwin bid off several lots, among them two which lay wholly within the lines of said “road” and “lane,” and one lying partly within the line of the “road;” said lots, including the land to the center of said highways or streets. Irwin transferred an undivided half of his purchase to defendant Campbell. Deeds of said lots were tendered to defendants, but they declined the same and refused to complete the purchase as to said lots, claiming that plaintiffs could not give a clear title to the same. At the time of the sale both said “road” and “lane” were used as public highways. The commissioners of the Central Park, in accordance with the provisions of section 2, chapter 697, of the Laws of 1867, caused maps to be made, certified and filed, of the streets, avenues, etc., retained and laid out by them, within the territory specified in the act, which included the lands in question. Heither said “road” or “lane” appear upon said maps. The. third section of said act provides that all streets, avenues, etc., theretofore laid out, not appearing upon the maps, shall, from and after the filing thereof, cease to be streets, and the abutting owners shall become seized in fee to the center line thereof. The case submitted contained this admission : “ It is admitted that when the said Bloomingdale road and said Apthorp’s lane shall have been closed by law, the title to lots Hos. 15 and 16, and to lot Ho. 13 (the lots in question), being the abutting half of each of the same, will revert to the estate of Daniel B. Fearing, as the owner of the abutting land.” The questions submitted were substantially whether the “ Bloomingdale road ” and “Apthorp’s lane ” were closed according to law, and had Fearing or his estate acquired title thereto in fee simple, as abutting owner to the center thereof, so that they could convey said lots in accordance with the terms of sale, and whether plaintiffs were entitled to a judgment for specific performance. J. W. Edmonds for the appellants. It was error to declare the roads closed, because no provisions for damages to those deprived of the right of way had been made. (People v. Kerr, 27 N. Y., 215; Bloodgood v. M. & H. R. R., 18 Wend., 18, 27; Chapter 697, Laws of 1867.) Private property taken for public use, on the ceasing of the use, reverts to the original proprietor, and the adjoining owner is regarded as such. (Sherman v. McKeon, 38 N. Y., 270; John and Cherry Sts., 19 Wend., 659; Bissell v. N. Y. Cent., 23 N. Y., 61; Woolwich on Ways, 5 [4 L. Lib.] ; Mott v. N. Y., 2 Hill, 358; Herring v. Fisher, 1 Sand., 348.) This is not so in case the land was not taken and paid for, fee and all. (Hayward v. N. Y., 7 N. Y., 314; Hoff. Treat., 263,265,289, 291.) And where the plain intention is that the fee should not be conveyed. ( Van Amring v. Barnett, 8 Bosw., 357; Child v. Starr, 2 Hill, 370; Jones v. Cowmar, 2 Sandf., 234.) It was error to decree specific performance. (Harnett v. Yielding, 2 Sch. & Lef., 552; Schmidt v. Livingston, 3 Ed., 213; Mathews v. Terwilliger, 3 Barb., 50; Clark v. Roch., etc., R. R., 18 id., 350; Watts v. Rogers, 2 Abb., 261; Seymour v. Delancey, 3 Cow., 445; Viele v. T. & B. R. R., 20 N. Y., 184; Slocum v. Closson, 1 How. Ct. App. Ca., 705, 751, 758; Chase v. Barrett, 4 Paige, 148; Gould v. Kemp, 3 M. & K., 308; Lynch v. Bischoff, 15 Abb., 357, note; Halsey v. Grant, 13 Ves., 73; Stapylton v. Scott, id., 426.) John L. Cadwalader for the respondents. In a case submitted under section 372 of the Code, the court is bound by the facts agreed upon and can make no inference or in any way go beyond them. (Chapman v. Wheeler, 5 Alb. L. J., 337.) Every owner of land is presumed to own to the center line of the road. (Child v. Starr, 4 Hill, 382 ; Hammond v. McLachlan, 1 Sand., 341; Herring v. Fisher, id., 344; Dunham v. Williams, 36 Barb., 136; Gedney v. Earl, 12 Wend., 98.) The deed from Thorn was a conveyance of lots upon a map by their lot numbers, and the dis. tances and descriptions following were surplusage, and the deed earned the land to the center line of the road. (Cox v. James, 45 N. Y., 547; Bissell v. N. Y. C. R. R., 23 id., 61; Lozier v. N. Y. C. R. R., 42 Barb., 465 ; Perrin v. N. Y. C. R. R., 36 N. Y., 120; Sueyles v. Hastings, 22 id., 217; Varick v. Smith, 9 Paige, 550, 553; Hammond v. McLachlan, 1 Sand., 323; Herring v. Fisher, id., 344; Sizer v. Devereux, 16 Barb., 160.) The map and lots as then located fixed the property and rights conveyed, and control, even if they vary from the courses given in addition. (Jackson v. Widger, 7 Cow., 723; Smith v. McAllister, 14 Barb., 434; Van Wyck v. Wright, 18 Wend,, 157; Jackson v. Freer, 17 J. R., 29.) When the road was closed the fee of the lots vested in the Fearing estate. (Van Amringe v. Barnett, 8 Bosw., 357; Mott v. Mayor, 2 Hill, 358; In re John and Cherry Sts., 19 Wend., 659; Embury v. Conner, 2 Sand., 98; S. C., 3 N. Y., 511.) The legislature had a right to pass an act' closing the Blomingdale road, or altering the map of the city of Hew York. (Met. Bd. of Health v. Heister, 37 N. Y., 672; Darlington v. Mayor, 31 id., 164; People v. Kerr, 27 id., 188; Story v. Furman, 25 id., 214, 223; Remsen v. Kinzie, 1 How. [U. S.], 316; In re Riverside Park, Barnard, J., July 22,1871.) The court cannot compel plaintiffs to convey without a consideration. (Seymour v. Delancey, 3 Cow., 445; Coales v. Bowne. 10 Paige, 526; Best v. Stow, 2 Sand. Ch., 298.) [MAJORITY — Forger, J.] Forger, J. In these cases of a submission of a controversy without action, the court is confined to the facts agreed upon, and can make no inferences, or in any way depart from . or go beyond the statement presented. (Clark v. Wise, 46 N. Y., 612.) Hence the admission that, when the Bloomingdale road and Apthorp’s lane shall have been closed by law, the title to the abutting half of each of them will revert to the Fearing estate, is of controlling effect. It is an admission which involved questions of law ; but, as it is stated in the case, and for all the purposes of the submission, it is a statement of a fact. It leaves no question of law for the court but this: Bid the passage by the legislature of the act of 24th April, .1867, and the action under it of the commissioners of the Central Park, close, by law, the road and the lane ? The legislature had power to pass an act for closing streets in the city of Hew York. (People v. Kerr, 27 N. Y., 188; Darlington v. Mayor, etc., 31 id., 164; see also Kellinger v. Forty-second St. Railroad, 50 id., 206.) It had the power to effect the closing through such local officers or municipal board or organization as it should choose, and could prescribe the particular action thereof which should work the result. It cannot be successfully questioned that the act of 1867 is so far incompatible with chapter 623 of the Laws of 1838 as that the power of the common council over the Bloomingdale road is supplanted by that of the commissioners of Central Park. Hor can it be doubted that the act of 1867, and the proceedings of the commissioners of Central Park under it, have been effectual to close the roa’d and the lane. It is objected, however, that the act is not constitutional, for that it does not provide compensation for those who are deprived of a right of way through the road and the lane. They were public roads; and it is said, owners of land adjoining a public road, have a right of property in going to and from their premises over it. This court has held, however, that, though one public way to property is closed, if there is another left, the property owner sustains no actionable damage. (Coster v. Mayor, etc., 43 N. Y., 399.) It is quite plain, from the diagrams shown, that there is a public way left to all parts of this property. (See, also, People v. Kerr, supra.) As to the other points made upon the argument by the learned counsel for the appellants, there is not room for them in the case; the admission of fact shuts them out. It follows that the judgment appealed from should be affirmed. All concur. Judgment affirmed.