Opinion
November 23, 1970
Appeal from a judgment entered December 15, 1964 upon a decision of the Court of Claims. This claim involves the appropriation of 8.5 acres of land, constituting a paper street, formerly known as Lydius Street and now Madison Avenue, allegedly owned by the City of Albany. The property comprised part of the Albany Country Club, condemned by the State for development into the State University of New York. Appellant's claim of ownership derives from the Dongan Charter of 1686, under which the City of Albany acquired title to the subject property. The Van Alen Map of 1817 laid out Lydius Street and bordering lots, known as the Great Lots. These were subsequently conveyed out and around 1900 the Albany Country Club became the owner of some of them. While Lydius Street has always appeared on official city maps as a city street, there is no evidence in the record that it had ever been other than a paper street. The trial court took judicial notice of the Albany Country Club decisions ( Albany Country Club v. State of New York, 37 Misc.2d 134, mod. 19 A.D.2d 199, affd. 13 N.Y.2d 1085) in which the Country Club was awarded damages, but title to Lydius Street was stipulated to be in the appellant, although it constituted part of the golf course. The question is whether appellant retained title to the bed of Lydius Street following the conveyances of the Great Lots. The deeds from appellant all bore substantially the same description "bounded on the north by Lydius Street" or "bounded on the south by Lydius Street". There was no language which could be construed to except or reserve title to the street. The trial court dismissed appellant's claim, relying on the rule that a conveyance of land abutting a road carries the fee to the center of the road. Appellant contends that when a municipality is the grantor of property abutting a street, the conveyance only extends to the property line, in the absence of specific language in the deed. It also contends that the construction of the deeds and stipulation made in the Albany Country Club case should be accorded great weight in determining the issue of title. A conveyance of land abutting a street or highway carries title to the center of the street ( Geddes Coarse Salt Co. v. Niagara Lockport Ontario Power Co., 207 N.Y. 500). In Geddes ( supra), it was determined that the general rule applies against the State as well as a private grantor. We agree with respondent's contention that since there is no meaningful distinction between the State and a municipality in this connection, the Geddes case applies here. Since it is clear that a conveyance of land abutting a street or highway subjects the grantee to a right of way in favor of the public, there is no compelling reason to maintain a distinction between the public authorities and the private grantor. Consequently, there is even less reason to distinguish between a State and a municipality. There is a further reason for affirmance. Since Lydius Street was not in existence at the time of the conveyances of the bordering properties, a trust relationship running to the public was never established, and we cannot imply an intent to retain title by the city. Nor do we find merit in appellant's contention that the stipulation in the prior proceeding in which the Albany Country Club was awarded damages, is determinative of this case. The stipulation has no binding collateral estoppel effect but merely operates as an admission. The probative weight to be given to the admission, however, is counterbalanced by a rejection of claimant's title as a matter of law. Judgment affirmed, without costs. Herlihy, P.J., Reynolds and Greenblott, JJ., concur. Cooke and Sweeney, JJ., dissent and vote to reverse and order a new trial for the assessment of damages in the following memorandum: There should be a reversal and new trial for the assessment of damages. It is established that the grant of title by a city to property bounded by or upon a city street, in the absence of any more definite description, carries only to the line of the street ( People ex rel. N.Y. Cent. Hudson Riv. R.R. Co. v. Priest, 206 N.Y. 274, 283; Graham v. Stern, 168 N.Y. 517, 523; Gere v. McChesney, 84 App. Div. 39, 41). Geddes Coarse Salt Co. v. Niagara, Lockport Ontario Power Co. ( 207 N.Y. 500) is not apposite since it applies to a conveyance by the State. The marked distinction between a conveyance by a municipal corporation and one by the State has been recognized in case law (i.e., Paige v. Schenectady Ry Co., 178 N.Y. 102, 111; Gere v. McChesney, supra; Paige v. Schenectady Ry. Co., 77 App. Div. 571) and by authorities (5 Warren's Weed New York Real Property [4th ed.], p. 141; 6 N.Y. Jur., Boundaries, §§ 40, 41). This difference is not a mere coincidence but based on the fact that a city is the owner in fee of the streets and holds title thereto in trust for street purposes ( Paige v. Schenectady Ry. Co., 178 N.Y. 102, 111, supra) whereas the State does not own streets as such ( Cheney v. Syracuse, Ontario N.Y. Ry. Co., 8 App. Div. 620, affd. 158 N.Y. 739; Gere v. McChesney, supra). The appropriation took place on January 3, 1961 and was for purposes connected with the State University. Under section 3 Gen. Mun. of the General Municipal Law (L. 1960, ch. 180, effective March 8, 1960) and because the taking of these premises was for a substantially different purpose from the then existing use, claimant was entitled to just compensation to the same extent and subject to the same limitations as though it were private property (see Central School Dist. No. 1 of Town of Colchester v. State of New York, 18 A.D.2d 943, affd. 13 N.Y.2d 1031; Town of Tonawanda v. State of New York, 50 Misc.2d 3, 5, affd. 28 A.D.2d 644; Message of the Governor, 1960 Legislative Annual, p. 471). Furthermore, in Albany Country Club v. State of New York ( 37 Misc.2d 134, 135, mod. 19 A.D.2d 199, affd. 13 N.Y.2d 1085), it was stipulated that title to the 8.5 acres in question was in the City of Albany, and, accordingly, the State did not compensate the Albany Country Club for this real property. It was not the law's intention that the State acquire title in the absence of just compensation and it does not appear that nominal payment would be adequate for such a sizeable tract within the "paper street" strip, which, at the time of appropriation, had never been used as a street and possessed the physical attributes of greens, tees, fairways and woods. (See Second Class Cities Law, § 101; Gerbig v. Zumpano, 7 N.Y.2d 327, 330-331.) [ 44 Misc.2d 502. ]