Summary
In Sherman v. McKeon, 38 N.Y. 266, it was held that where real estate had been condemned and taken by the city of New York for the purpose of widening a street, and the owner accepted the damages awarded, the receipt of the money by him was an expression of consent to the taking of the property by the city, and estopped him, and those claiming title under him, from alleging an unconstitutional taking of the property for private purposes.
Summary of this case from Young v. City of Los AngelesOpinion
June Term, 1868
Charles A. Sandford, for the plaintiff.
Malcolm Campbell, for the defendant.
The claim of the plaintiff, that Charles Oakley, from whom his title is derived, acquired title by virtue of the deed exceuted by the Manhattan company to him, appears to be well founded. The west and north boundaries of the lots, are on two streets, and, according to well settled principles, this includes at least for certain purposes, to the middle of the street, unless there is evidence on the part of the grantee to exclude the street from the grant. ( Hammond v. McLaughlin, 1 Sandf. 323; Jones v. Cowman, 2 id. 334; Adams v. Saratoga Wash. R.R. Co. 11 Barb. 414.) Such intention is not manifest by the statement of the dimensions of the lot, and this statement must be regarded as subordinate to, and controlled by, the previous reference to the street, and the use of that term. Assuming this to be the true construction of the conveyance to Oakley, then Oakley acquired title by deed, to the land in Grove street, in front of the premises taken possession of by him, to the center of the street. His title and interest was sold by virtue of executions in certain judgments existing against him, and a sheriff's deed executed to the plaintiff, conveying all the interest which he had on the ninth day of June, 1839. This deed was dated in January, 1853. Passing by the quitclaim deed made by Oakley to the plaintiff, in 1850, which is unimportant, the sheriff's deed conveyed a title to the premises to the plaintiff, if Oakley's title had not been divested by some act of his, or by some lawful proceeding of the corporation of the city and county of New York, as is claimed by virtue of an ordinance directing Grove street to be widened and opened, and which was passed in January, 1836.
The defendant claims, that Oakley's title was thus divested, and relies upon various acts, by virtue of which, a title was acquired superior to the plaintiff's title, and insists, first, that it was done by the foreclosure of the mortgage made by Oakley and wife, in 1835, and a deed of conveyance of the master, who made the sale, to one Dill in 1846, and by a subsequent conveyance of Dill in 1848, to George Harrison, who was the landlord of the defendant, who occupied a portion of the premises covered by the deed to Oakley, and the mortgage in question; second, by the conveyance of the title made by Oakley and wife, to David H. Robertson, on the 18th day of March, 1839, and, thirdly, by the proceedings had under the ordinance of the corporation of New York, passed in 1836, and the conveyance by the corporation of New York to George Harrison, in 1847.
I. As to the title derived by the deed of the master in Chancery to Dill and his grantee, it may be remarked, that this deed only conveyed two of the lots owned by Oakley, the boundaries of which commenced at a point on the easterly side of Bleecker street, seventeen feet and one inch from the southeasterly corner of Bleecker street, thus excluding expressly, as I understand from the description, the premises in question. It is quite plain, that these premises cannot be conveyed as a mere appendage of those embraced in the deed.
II. It is also equally clear that the deed to Robertson did not include the lot in question, as the description bounds the premises by the "late line of Grove street," evidently meaning the old line as it existed before the new one was established by the proceedings had by the corporation, which at that time, had been but quite recently confirmed. Although the conveyance states that this was the same premises conveyed by the Manhattan company to Oakley, yet, I think that the specific description must control, and they must be regarded as conveyed within these boundaries, without any modification or change, by the reference to the deed to Oakley. It is said, that the expression employed will be presumed to refer to the late center line, in connection with the words after the description "along and on Grove street." I think that it will not bear this interpretation. The description evidently makes a distinction between the old line and the new one, and, in stating a line for a boundary, it cannot well be said, that the statement of itself makes the center, the line.
III. As to the title acquired by the proceedings of the corporation, and the conveyance to Harrison, which is the principal question to be determined in this case, it will be observed, that these proceedings were commenced and consummated prior to any transfer of title by Oakley, and before any lien had been acquired by judgment upon the premises, against Oakley the owner. They date prior, in point of time, to any other supposed or real title; were in advance of the sheriff's deed, and Oakley's quitclaim to the plaintiff, under which he establishes title, and, if they can be sustained and upheld as effectual to vest the title in the corporation to the Gore declared to be regarded as closed, furnish a complete and perfect title, under the deed of the corporation, to the defendant's lessor.
The first report of the commissioners appointed to make the estimate and assessment in the Grove street improvement, declares, that a certain lot of land which includes the premises in question was required for the purpose of being closed, and of vesting the title to the same in the corporation of the city of New York; and certain lots adjoining the aforesaid lot are described and designated as assessed and benefited by the improvement. In the margin, and opposite to a description of these several lots, is the name of "Charles Oakley," and a sum of money, and certain numbers are placed under such description. The object and meaning of the name, amounts, and numbers, is not stated. It is also stated in the report, that unknown owners are seized in fee to the premises so required to be taken, subject to the easement of a right of way over the same in the parties and owners interested in the lands and premises bounded by, and fronting on, the same. The additional, or second report, corrects the first by altering the sums assessed on certain of the lots, and by allowing to Oakley the sum of one thousand five hundred dollars, in lieu, and instead of assessments set forth in the first report.
It cannot be denied, that there is some obscurity in the language employed. It must be interpreted, however, in view of the facts elicited, and the circumstances surrounding the case. It is evident, I think, that the amount allowed to Oakley was for his right, title, and interest in, or to the land in question, which, from 1810 until the proceedings to improve Grove street were instituted, lay in the public street, and to which he claimed title, by reason of his being the owner of the land which was opposite to it, and which was bounded upon Grove street. It is not reasonable to suppose, that this large award could have been made for damages, which consisted in giving Oakley the same front on Grove street, as he had before enjoyed, and all the benefits of the improvement, as well as leaving him to enjoy the title to this additional lot. In fact, the commissioners' report, in entire contradiction of any such theory, purports to vest the title of the lands in the corporation. They could not have awarded any such amount, simply because the public would be prevented from using the land closed, and taken as a street.
The declaration, that the sum allowed was to be instead of assessments set forth in the first report, has no great significance, in connection with the facts proved. If it can in any way be considered, as having any bearing, it is entirely adverse to the idea of making any such allowance. So also, the number at the end of the description appears to be without any apparent object. It is previously stated in the last report twice, as a lot assessed, which would be entirely inconsistent with making an allowance. The amount allowed was paid on the order of Oakley, as an award to him, and must have been for his interest in the land taken and vested in the corporation, and for nothing else. The report declares, that the commissioners have estimated and assessed the benefit and advantage to the mayor, aldermen, and commonalty of the city of New York, in consequence of the land required being converted to their use. It allows the sum of fifteen hundred dollars to Oakley, and the fair and rational inference is, that the sum allowed was for the extinguishment of Oak ley's interest in the premises in question, and for vesting the same in the corporation. Upon no other hypothesis can such an allowance be satisfactorily explained, and it could not have been for any other purpose.
It is insisted by the counsel for the appellant, that the laws under which this improvement was made, so far as they authorize the taking of private property for private purposes, are unconstitutional and void. This is undoubtedly true, when the power is exercised in opposition to the consent of the owner; but, when that consent is given, it is a waiver of the objection, and removes the difficulty. A party may renounce a constitutional provision made for his benefit, and, when the law which provides for a transfer of property does not require the consent to be in writing, it may be manifested by parol acts and declarations, so as to effect a transfer of the title to real estate, notwithstanding the statute of frauds. ( Bassen v. Brennan, 6 Hill, 47; Embury v. Conner, 3 Comst. 511.) The receipt of the money operates as an estoppel, and the damages paid have the same effect as a conveyance, and vest the title in the corporation. The consent of the plaintiff is apparent from his conduct in the matter. He evidently appeared and interposed objections to the first report made by the commissioners, and probably induced them to make the award of one thousand five hundred dollars. He had a right to object to the confirmation of the report, upon the ground, that the land was taken without his consent, and, had he done so, the report would have been set aside. ( Matter of John v. Cherry St., 19 Wend. 659.) This he failed to do, and consented to receive the money without objection. The corporation was not bound to pay the money, except upon a waiver of all objections as to the title conferred, and his receipt of the money was a waiver of the objection, and a sufficient consideration for his affirmance of the title in the corporation. He received the money after he had inclosed the land; never offered to return it; remained quiet without asserting his claim, long after the possession was surrendered to the grantee of the corporation, who paid a valuable consideration for a conveyance; allowed him to improve it, without making any claim, and left it for the plaintiff, a purchaser upon an execution sale under an old judgment, sixteen years after the land was appropriated under the corporation ordinance, to bring an action for its recovery. The fact that Oakley took possession, and had it for some time, so far as it shows a claim of title, is sufficiently answered by the subsequent surrender to a party claiming title under the corporation deed, as well as by the other facts of the case.
Under the circumstances existing, it appears to me to be quite plain that the plaintiff is precluded from asserting a title, and cannot maintain this action.
The judgment must be affirmed.
Judgment affirmed.