Street Closings

By M. Robert Goldstein & Michael J. Goldstein

August 25, 1999

New York’s law as to the property rights of abutting owners in public streets was clarified in cases such as Story v. Elevated R.R. Co., 90 N.Y.122. Essentially it was held that private easements of light, air and access automatically arise in favor of any property fronting on a public street upon the creation of that street. Thus, in that street were both the right of public access and private easements. While the public generally has the right of access over that street, the abutting property owners, besides sharing in the rights enjoyed by the public at large, have special private property rights. It has also been held that the rights of the abutting owner were more than just the easements of light, air and access. Donahue v. Keystone Gas Co., 181 N.Y. 313.

There is another kind of public street and that is where the bed of the street is privately owned, usually by the abutting property owners to the center line of the street, and where that street has also been dedicated to the public use. Usually, such a street was created in the first instance by a subdivision of a larger tract into lots fronting on mapped streets. The sale of lots referenced to a filed map by an owner of that larger plot gives rise to street easements, including access to cross streets leading into a system of public streets. The sale of those lots is referenced to that map will give rise to the same street easements in favor of the abutting owners, but not to the public at large. Lord v. Atkins, 138 N.Y. 184. To change that private street into a public street requires either a dedication and acceptance by the municipality, a user or a condemnation. In re India Street, Borough of Brooklyn, 29 N.Y.2d 97, 324 N.Y.S.2d 1 (1971). Most municipalities will not accept a dedication (usually by the subdivider), unless the street meets its standards, not only in construction but in utilities, particularly, water and sewer. The fact that the street may not have been physically improved as such does not make it less of a street, in terms of the property rights of the abutter.

There is also the private street. It is the same as that described above, with title and easements held by the abutters, but where it has not been dedicated to the public use with no rights in the public at large.

But there is another type of street, the so called “paper street”. This is not a street at all, but merely lines on a map, constituting the municipal general plan. The mere mapping of the lines of the street on the municipal map, while it may, by statute, restrict development of that land, neither creates a street as such nor deprives the property owner of any property interest in that part of his property which lies within the bed of that mapped street. Foster v. Scott, 136 N.Y. 577; Headley v. City of Rochester, 272 N.Y. 197. When condemned, the owner is entitled to full compensation for the land in that mapped street. In re City of New York (College Point, U.B. II), 78 A.D. 2d244, 434 N.Y.S.2d 711 (2d Dept., 1980); City of Rochester v. Hennen, 56 A.D. 2d 719, 392 N.Y.S.2d 943 (4th Dept., 1977). The property owner(s) may and, indeed, in some instances, is required, when developing that land, to not only recognize that portion of his property as a street but also pay for the cost of putting in the street, particularly where he wishes to subdivide the property. Where the property owner subdivides his property in reference to the municipal map, he creates street easements in favor of the abutting property owners on that portion of his land which lies within that mapped street, In re Braddock Avenue, 278 N.Y. 163; Reis v. City of New York, 188 N.Y. 58.

That these street easements are valuable needs no citation of authority. While the land in the bed of the street usually has but nominal value In re India Street, supra; being burdened by street easements, (In re Braddock Avenue, supra; cf In re Northern Blvd., 258 N.Y. 136) it is the abutting land which acquires value by reason of these easements of light, air and access. Well, what are the nature of these rights? To begin with, when it is a public street, the land is held in trust by the municipality for street purpose, i.e., it cannot be used for other than a street and those uses, which are incidental to its use as a street. In re East Fifth Street, 1 Misc. 2d 977, 146 N.Y.S.2d 794 (Sup. Ct., N.Y. Co., Eder, J., 1955). While a street, it is inalienable, (Green v. Miller,249 N.Y. 88) and there may be no adverse possession which would cut off the use as a street. Even when the fee title is held by other than the municipality and it is a public street, the street easements in favor of the public are still in trust and are also inalienable and not subject to adverse possession.

Obviously, one of the major benefits of having a street is being able to gain access to the abutting property. A property without access has little value, as it cannot be used. One of the benefits of the street is to prevent building in the street, preserving light and air to the abutting property. It is when these benefits of a street are legally impaired, and since the street is held in trust for street purposes, they may only be impaired by a body having the power to condemn, that you get into the question of compensation.

Story v. Elevated RR Co., supra, came about from the building of an elevated railroad structure in the bed of a street. The action was brought in the alternative, to either enjoin the building of the structure as not being a proper street use or to hold a condemnation proceeding (the railroad company having the right of eminent domain) so as to compensate the abutting property owners for their damages from impairing their easements of light, air and access. Today it would be called an inverse condemnation.

The reasoning of the Court was that when the streets were created and the land given up for that purpose, it was a very defined purpose. While one could use the street for compatible uses such as sewers, without impairing the street easements, an elevated railroad was not such a compatible use. Interestingly enough, non-elevated street railroads were later deemed to be a proper street use. Kane v. N.Y. El. R Co.,125 N.Y. 164, 176. However, when dealing with access, the Courts, in a series of decisions, have determined a property could be deprived of access to a street, in whole or in part, as long as there was such an adequate access remaining or did not change for the worse the highest and best use of the property (Selig v. State of New York, 10 N.Y. 2d 34;Priestly v. State of New York, 23 N.Y.2d 155, 295 NYS2d 659); Laken Realty Corp. v. State of New York, 29 A.D. 2d 1027, 289 N.Y.S.2d 566 (3rd Dept., 1968); cf. In re East Fifth Street, supra) the so called “Circuity of Access” cases.

But what happens when a governmental entity wishes to close a street? Since street easements are valuable property rights they may not be taken or impaired without just compensation. In re East Fifth Street, supra; Matter of City of New York (Gillen Place),304 N.Y. 215. Since the public has the right to create a street, it has the power to close a street, but since closing the street means acquiring the street easements, the owners of these easements must be compensated. While the value of the bed of the street may be nominal, it is the consequential damage to the abutting dominant estate when the street easements are acquired for which payment must be made (Matter of City of New York, (Van Hill Realty Co., Inc.), 19 App. Div. 2d 739, 242 NYS2d 782 (2d Dept., 1963). In some instances, the closing of the street is accomplished by a straight condemnation proceeding for another use. In some instances, by agreement with the abutting owners, who, after the street is closed, usually have a preemptive right to acquire the bed of the closed street up to its center line, opposite their property, before it is sold to anyone else. See Highway Law, Secs. 123, 30 [18]; Greifer v. Sullivan County, 246 App. Div. 385, 286 N.Y.S. 791, aff’d. 273 N.Y. 515; Administrative Code of the City of New York, Sec. 4-105; Klee v. Wagner, 8 N.Y. 2d 991, 205 N.Y.S. 2d 162; 8 N.Y.2d 1019, 206 N.Y.S.2d 787. It must be noted, however, that temporary closings of streets, during the course of improvement of the street, albeit it may be lengthy, is damnum absque injuria. Cities Service Oil Co. v. City of New York, 5 N.Y.2d 110, 180 N.Y.S.2d 769; Filkins v. State of New York, 63 Misc.2d 380, 311 N.Y.S.2d 54 Sup. Ct., Oneida Co., 1970) and cases cited therein.

The City of New York’s Administrative Code, Sec. 5-430 et. seq (formerly Title E) is a special statute providing the procedure by which a street is closed in the City of New York. In re East Fifth Street, supra. It provides that the order of the Mayor directing the closing shall also direct the Corporation Counsel to start a condemnation proceeding to fix the compensation “to the respective owners of the real property affected, damaged, extinguished or destroyed by such closing.” The interesting part of the statute is that it provides that the street closing, different than in other condemnation proceedings, may be effectuated by resolution of “the Board of Estimate” where it sets a date for the street closing (Sec. 5-438) rather than provide for a court order followed by a proceeding to fix compensation. It further provides that if such a proceeding is not brought, an owner may apply for an order to expedite the proceeding (Sec. 5-367). In interpreting this statute it was held in Matter of City of New York, 12th Avenue from W. 55th Street to West 57th Street, N.Y.L.J. 5/3/41, p. 1979, col. 1 that, absent the holding of the condemnation proceeding, the private street easements continue to exist, which are property rights of the abutting owner. The mere filing of a map showing a discontinuance of the street did not effectuate a taking until the street closing proceeding was actually instituted. It is to be noted that where private street easements exist, but the street has not been improved, nor have street closing proceedings been instituted, that the mere demapping of the street does not affect the existing street easements, without a street closing or condemnation proceeding.

Reprinted with permission from the August 25, 1999 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.