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Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196. ing to the defendants, was set off to David B. Cox. A map was prepared to accompany this deed, and made a part of it, upon which the portions set off to the respective parties were shown, and the same were bounded and described in the partition deed and shown on the partition map as fronting upon a street previously laid out by the tenants in common as a road for the use of the property so conveyed; the road so laid out prior to the partition deed was used as a road by the tenants in common, and was subsequent to said deed so used, and has been ever since so used, and is now being used as a road by them and their successors in interest. It is found that down to the 18th day of November, 1895, the road known as the "Old Kingsbridge Road" was shown on maps of the street system of the twenty-fourth ward of the city of New York as a road or street in actual physical use and as a part of the street system of said ward and city; that on or about the 18th day of November, 1895, the final map of the twenty-fourth ward, section twenty-two, which embraces all the territory in which the "Old Kingsbridge Road" is located, was filed and thereupon and by virtue of the filing of said map said “Old Kingsbridge Road" as previously shown upon the maps of the street system of the twenty-fourth ward of the city of New York was omitted and a contiguous street laid out, known as the "Spuyten Duyvil Road." It is found as a conclusion of law that the "Old Kingsbridge Road" as shown upon said partition map was and is a street actually open and in public use within the meaning of the terms of section 2, chapter 1006 of the Laws of 1895.

It also appears that proceedings for the opening of a street contiguous to and substantially parallel in certain parts to the "Old Kingsbridge Road," known as the "Spuyten Duyvil Road," were instituted and title became vested in the city of New York on or about the 14th day of January, 1898. The proceedings have been pending ever since and no physical opening of the "Spuyten Duyvil Road" has taken place and it never has been and cannot now be traveled. After this formal opening of the "Spuyten Duyvil Road," the defend

N. Y. Rep.] Opinion of the Court, per EDWARD T. BARTLETT, J.

ants, as owners of the fee in front of their premises, claimed that this fee was free from the easement of right of way, said to be vested in the plaintiff, upon and over the "Old Kingsbridge Road," and threatened to close up the roadbed in front of defendants' premises by taking possession thereof and fencing the same in for their own uses and purposes; they also notified the plaintiff in writing of their intention so to do.

The defendants claim the power to so proceed by virtue of the Laws of 1895 (Chap. 1006, § 2), entitled "An act to provide for the discontinuing and closing streets, avenues, roads, highways, alleys, lanes and thoroughfares in cities of more than one million two hundred and fifty thousand inhabitants."

An application was made to the Special Term by the plaintiff for an injunction pendente lite restraining the defendants from fencing in the "Old Kingsbridge Road" in front of their premises. This injunction was granted. The right to the preliminary injunction was based upon the provisions of section 2 of the statute already cited which provide, in substance, for the filing of maps, the discontinuance of old streets and the opening of new streets. The section, however, makes an exception to the effect that in all cases where any such street to be closed is, at the time of the filing of such permanent map or plan, actually open and in public use, the same shall so continue until the new street, which is to take its place, shall be opened.

It is to be observed, as appears by the judgment of the Special Term quoted at the opening of this opinion, that the court not only sustained the right of the plaintiff to an injunction until the "Spuyten Duyvil Road" should be physically opened and capable of public use, but dealt with the second and important question, as to the claim of the plaintiff that it is vested with an easement by grant which gives it a distinct right of way out and over the "Old Kingsbridge Road," of which it can be divested only by grant or condemnation; that this right came to the plaintiff through the partition deed and was not affected by the street opening proceedings, which have for their object the substitution of the "Spuyten Duyvil

Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196.

Road" for the "Old Kingsbridge Road," when it is opened "and capable of public use."

The question will still remain after the "Spuyten Duyvil Road" shall have been duly opened, as to the right of the defendants to fence in the portion of the "Old Kingsbridge Road" in front of their premises without acquiring, by purchase from the plaintiff, its easement by grant to use that and other portions of the abandoned road.

The court found that the plaintiff has no means of egress or ingress from or to its premises except over the "Old Kingsbridge Road," and that it is essential to the carrying on of its business to have free and unobstructed use of the road in both directions. It is further found that if the defendants are permitted to take possession of the roadbed and fence it in as threatened, the plaintiff will be completely shut off and obstructed from the use of the road in an easterly direction from Kingsbridge, unable to carry on the necessary trucking essential to the conduct of its business, and will have no method of egress from its property in an easterly direction. It is also found that there is no other street or road leading from the plaintiff's premises in an easterly direction which is open and available for use except the "Old Kingsbridge Road," and the plaintiff will, if it is closed, suffer irreparable harm and injury, and will be deprived of the enjoyment of the easement of the right of way over the said roa which it and its predecessors in title have heretofore enjoyed and which is appurtenant to the premises now owned by the plaintiff. It is further found in this connection that the plaintiff's business consists of the manufacture of steel and other metal castings, which necessarily involves heavy trucking.

The Special Term found as conclusions of law that by virtue of the partition deed the plaintiff is entitled to the easement of the right of way over the fee of the "Old Kingsbridge Road" in front of the defendants' premises; that this easement having been created by grant could not be destroyed by the closing of the street under the provisions of the Laws of 1895 (Chap. 1006); that the "Old Kingsbridge

N. Y. Rep.] Opinion of the Court, per EDWARD T. BARTLETT, J.

Road" was and is a street actually open and in public use within the meaning of the terms of the Laws of 1895 (Chap. 1006); that the contiguous street known as the "Spuyten Duyvil Road" has not been opened within the meaning of the law above referred to, and that the defendants were, therefore, not entitled to inclose, use and occupy the fee in front of their premises; that the plaintiff is entitled to the rights of an abutting owner upon a street over the roadbed of the "Old Kingsbridge Road," and is entitled to an injunction restraining the defendants from closing said roadbed in front of their premises until the street contiguous thereto, proceedings for the opening of which are now pending, shall be actually opened and capable of public use; that the plaintiff is further entitled to a permanent injunction forever restraining the defendants from inclosing the roadbed of the "Old Kingsbridge Road" in front of their premises so as to preclude the plaintiff from the exercise of its private easement of right of way claimed by it under the partition deed.

The contention of the defendants appellants is that the findings of fact present a case which comes under the operation of the Laws of 1895 (Chap. 1006), and that the only right the plaintiff had in the "Old Kingsbridge Road" is a public easement which merged and extinguished any private easements that it may have possessed.

There is no finding that the "Old Kingsbridge Road" was ever laid out as a public highway by the city of New York or any competent municipal authority, except that the "Old Kingsbridge Road" was shown, as before stated, on a system of maps made by the city of New York, and that when the subsequent map showing the laying out of the "Spuyten Duyvil Road" was prepared and filed, the "Old Kingsbridge Road" was omitted. This being the situation, it follows that when the city of New York has completed the "Spuyten Duyvil Road" and placed it in a condition suitable for public use, the "Old Kingsbridge Road," the fee of which is vested in the respective abutting owners, would be deemed closed so far as the city of New York is concerned, and thereupon the

Opinion of the Court, per EDWARD T. BARTLETT, J. [Vol. 196. roadbed would revert to the owners of the fee, to be dealt with under their respective rights as parties to the partition deed.

The judgment of the Special Term, unanimously affirmed by the Appellate Division, in dealing with one phase of the case enjoins the defendants from closing any portion of the roadbed lying in front of their premises, or from in any way interfering with the use thereof by the plaintiff as a public street or road until the street contiguous thereto, proceedings for the opening of which are now pending, shall be physically opened and capable of public use. This provision of the judgment deals with the public easements in the street and the easements, so called, of light, air and access appurtenant to the premises abutting on the street. (Matter of Mayor, etc., of N. Y. [Vanderbilt Avenue], 95 App. Div. 533; followed in Matter of Mayor, etc., of N. Y. [Opening of Vanderbilt Avenue], 119 App. Div. 882, without opinion; affirmed, also without opinion, 189 N. Y. 551.)

Under the Laws of 1895 (Chap. 1006) the public easements in the street and the easements of light, air and access are extinguished in a discontinued road or street when the new street is opened.

The appellants take the position that the "Spuyten Duyvil Road" is legally "open" notwithstanding it has laid unworked and unfitted for public use for more than eleven years since the filing of the map laying out the same under the Laws of 1895 (Chap. 1006). This point was well considered by Mr. Justice Scorr in his opinion handed down in the motion for a preliminary injunction, which was granted. (42 Misc. Rep. 301.) The learned judge said: "The word 'opened,' as used with reference to streets and public places in this city, has come to have a special technical meaning, recognized in many statutes, as referring to the time when the city becomes vested with the title to the land upon which the street or avenue is to run. I do not think, however, that it can be held to have. been used in that sense in the act referred to." (Laws of 1895, ch. 1006.) "The purpose of the act was to substitute one system of public highways for another by opening new

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