Opinion
July Term, 1901.
Judgment and order affirmed, with costs.
This is an appeal from a judgment of the County Court of Cattaraugus county affirming the award made by commissioners appointed to assess the damages resulting from the opening of Eleventh street in the city of Olean, pursuant to section 94 of chapter 478 of the Laws of 1893, as amended by section 7 of chapter 142 of the Laws of 1898, which chapter, as thus amended, constitutes the charter of the city of Olean. The respondent, Mrs. Lamper, is the owner of a house and lot, situate upon the south side of Sullivan street in that city. This lot has a frontage of fifty feet and extends south at right angles to Sullivan street a distance of one hundred and ten feet. The proposed street runs lengthwise of the lot and appropriates a strip thirty-five feet in width upon the west side thereof, upon which is located a portion of the dwelling house occupied by the respondent. There is little or no dispute respecting the material facts of the case, and the only question involved in the controversy relates to the matter of damages, the respondent claiming that she is entitled to substantial damages, while upon the other hand it is contended in behalf of the city that within the rule laid down in the case of Matter of Village of Olean v. Steyner ( 135 N.Y. 341), she is entitled to nominal damages only. Before the rule adopted in the Steyner case could be applied, it would become necessary to show that the land to be appropriated for street purposes was already burdened with an easement in the nature of a private right of way, existing in favor of third parties; that Mrs. Lamper entered into possession of her premises in subordination to the servitude thus imposed, and that the burden would not, therefore, be appreciably increased by converting the private into a public right of way over this strip of land. In other words, it must appear that there is another party in existence who, as against Mrs. Lamper, could enforce a private right of way over this strip of land, in order to justify the city in taking the same for a public street upon the payment of nominal damages only. One of the learned commissioners before whom the question of damages was tried has made it plain in an exhaustive and elaborate opinion that the respondent's premises are not subject to any such servitude, and if this be so, then clearly the case does not fall within the principle contended for by the appellant. We have examined the facts of the case with much care, and are satisfied that they are correctly set forth in the report and opinion of the commissioners, and that for the reasons already given, as well as for those stated in the opinion of this court in Matter of North Fifth Street ( post, p. 611), the judgment appealed from should be affirmed. All concurred.