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was substantially the same as the description in the deed from Cotte to Sands. Some months prior to that time the Legislature, by chapter 697, p. 1748, of the Laws of 1867, created and authorized the board of commissioners of the Central Park to remap the district bounded by 8th avenue, 59th street, 155th street, and the Hudson river. The maps, when filed, were to be final and conclusive, and all streets, roads, etc., within the district not shown or retained on the maps, should, from and after the time of filing of the maps, cease to be public streets or roads. "And the abutting owners on such of said streets * * and roads as have been opened or ceded, and as shall be abandoned or closed under the provisions of this act, shall become and be seized in fee simple absolute therein, to the center line thereof in front of his or their lands, respectively." Laws 1867, p. 1750, c. 697, § 3. The commissioners filed their maps on March 7, 1868. The Bloomingdale Road was not shown. The effect of the filing, therefore, was to close the road, and, conceding the validity and constitutionality of the act of 1867, to vest in the abutting owners such title in the road as the city had. If the city had no title to the fee, nothing could vest in the abutting owner, and he would be limited to his recovery for the loss of the easement and the damage resulting from the closing or the change of grade. The ultimate question will thus become, in whom was the fee of the road in front of the premises in question at the time of closing the road? Kellogg was then the owner of the abutting land, and continued so down to April 17, 1877, when he conveyed to one Edwards, through whom, by mesne conveyances, the plaintiff's title is derived. The description from Kellogg to Edwards included all the former's right, title, and interest to the strip of the old road in front of his premises. One year after Kellogg's deed to Edwards, and on March 19, 1878, Cotte, whose conveyance to Sands in 1860 had excluded the road, conveyed the excluded part to William J. Bell; i. e., the westerly half of the old Bloomingdale Road, between Ninety-Sixth and Ninety-Seventh streetsthe property which is the subject of this action. The same year Bell conveyed to Clark B. Augustine, and on March 14, 1881, Augustine conveyed to David L. Einstein, the defendant, who has been the record owner since that date.

We need not concern ourselves with the forms of the descriptions in the deeds after the attempted conveyance by Kellogg to Edwards of his right, title, and interest in the road. The crucial question is, who was the owner in fee of the westerly half of the road on March 7, 1868, when it was closed? The deeds through which the plaintiff claims are sufficient to carry the fee, if it vested in Kellogg, pursuant to section 3 of the act of 1867. It is here that we get back to the instrument of 1795. The plaintiff claims that it conveyed a fee to the mayor, aldermen, and commonalty of New York; that that fee was in the corporation when the road was closed; that the westerly half of it then became vested in Kellogg, the abutting owner; and that through Kellogg he derives a perfect title to the premises in question. On the other hand, the defendant claims that the instrument of 1795 was effectual to grant an easement, merely; that the fee remained in Striker, the original grantor, subject merely to the public's right of

way; that the fee to the road, burdened by the easement, passed under the referee's deed in the partition action in 1856; and that when the road was closed, in 1868, the fee, released of the burden, could be, and was, conveyed unincumbered to the defendant's predecessors

in title.

I am of the opinion that the instrument of 1795 granted an easement, merely, and that the defendant should prevail in this action. To arrive at its proper intent and effect, it is necessary to consider the nature of the property which the city had in the Bloomingdale Road, and that which it sought to acquire by the proceedings which culminated, in part, in the execution of the instrument in question. The road existed long before 1795. Its beginnings are to be found in early colonial times. So early as 1707, commissioners appointed under an act of 1703 (1 Colonial Laws N. Y., p. 532, c. 131) make a return showing the laying out of a highway over Theunis Edes' land, afterward the Bloomingdale Road. It seems that certainly by 1726 the road was actually opened as a road of the breadth of four rods through Edes' land, and that by 1751 it extended to the house of one Adrian Hoogelandt, located at what is now about 116th street. 3 Colonial Laws N. Y., p. 844, c. 910; Act Nov. 25, 1751. By the act of 1751 just referred to, the hardship resting on the inhabitants along the line of the road, who were few in number, and who were under duty to keep the road in repair, was recognized, and the appointment of a surveyor was provided for, upon whom was cast the duty "to view and survey the said road or highway and lay out the same of the breadth of two rods as the same now runs." The Court of Appeals has held that the act was not merely permissive, but mandatory; that it was justifiable to assume that the surveyor, who was a public officer, performed his duty; that the provisions of the act were in fact. carried out; that the road was actually thereafter laid out of the width of two rods only; and that such laying out operated as an abandonment of the user of the other two rods. Blackman v. Riley, 138 N. Y. 318, 326, 327, 34 N. E. 214.

By the act of October 20, 1764 (4 Colonial Laws, p. 838, c. 1268), jurisdiction over the highways in the city and county of New York was vested in the mayor, aldermen, and commonalty of the city, who were appointed commissioners, with authority to widen existing roads and highways to such convenient breadth as they saw fit, not more than four nor less than two rods in width. There is nothing in the record, nor have I been able to find any proceeding on the part of the commissioners under this statute, with reference to the Bloomingdale Road.

By a series of subsequent acts, that of October 20, 1764, was continued in effect until it expired, on January 1, 1777, by the limitation contained in the act of March 9, 1774. 5 Colonial Laws, p. 674, c. 1674. This was the last colonial legislation. We have no further evidence of any proceedings taken with regard to the Bloomingdale Road until about 1791, from which date to 1795 various steps were taken to extend the road northward from De Peyster's barn, which occupied the site of the old Hoogelandt house. These proceedings were all had under the highway act of 1787, c. 61 (2 Valentine's Laws

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N. Y. 1176). That act is not to be confused with chapter 88 of the Laws of 1787 (2 Valentine, 1179), which, among other things, had reference to streets. This independent legislation in respect to highways or roads and streets by independent statutes is highly significant. Van Amringe v. Barnett, 8 Bosw. 357, 371. It was the proceedings taken under the highway act of 1787 that culminated in the instrument of 1795. This act, like the colonial act of 1764, appointed the common council commissioners, with essentially similar powers. It was provided that "reasonable satisfaction" be made "for all such lands as shall be taken and employed," that the commissioners seek to "treat and agree" with the owners, and that upon refusal a precept be issued to the sheriff to impanel a jury before the mayor's court to assess the damages. Section 2. This act was most general in its terms, applying as well to new as to old roads.

It was under this act that the street committee of the common council reported on May 30, 1791, that benefit would result by laying open a new road from Bloomingdale to Ft. Washington. The terminating point of the existing road is given as the De Peyster lands, considerably to the northward of the premises here involved. 10 Min. Common Council, 107. There was lack of unanimity among the persons to be affected by the proposed improvement, for on February 17th and on March 12th two several petitions were presented-one in favor of, and one opposed to, the projected extension. Id. 210, 214. On October 22d a survey was directed to be made of the proposed new portion. Id. 310. On May 14th of the next year the committee on the Bloomingdale Road reported, whereupon it was ordered that the road be opened to its proper legal width to its termination at De Peyster's barn, and thence to the Post Road, if the proprietors would give the land. II Min. Common Council, 16. A further committee was appointed to attend to the opening, and to confer with the proprietors. Another order of similar purport, so far as the extension of the road is concerned, was made in the year following. Id. 152. No return or report of the committee is found until July 15, 1795, but on April 7th reference is made in the minutes to what I have called the instrument of 1795, which shows the result of their efforts:

"A release of James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John B. Waldron, Andrew McGown, Samuel Kelly, and Samuel Bradhurst to this corporation of so much of their respective lands as is required to continue the Bloomingdale Road through the same, of the breadth of four rods, was read, and ordered to be proved and deposited in the clerk's office and recorded." Id. 216.

It would appear from the formal report of the road committee, read and approved on July 15, 1795, that the extension or new road would not require any of the lands of James Striker, the original owner of the premises here in controversy, nor of the lands of John Jones. The report stated that the committee had caused

"A survey to be made of a continuation of the said road from the place where the ancient road terminated, at the barn of Nicholas De Peyster, which is the place where the dwelling house of Adrian Hoogelandt stood, continued in a northerly direction through and across the lands of the said Nicholas De Peyster, William Molenor, John Waldron, Andrew McGown, John Meyer, Samuel Kelly, and Samuel Bradhurst. That all the said persons, except Wil

liam Molenor and John Meyer, have released or are willing to release the said road to the corporation. That your committee have caused particular survey to be made of the land to be taken from the said Molenor and Meyer, and is as follows. Id. 263.

It will be observed that all the persons named in this report with the exception of Molenor and Meyer executed the instrument March 24, 1795, termed a "release" in the minutes. Proceedings were then had under section 2 of the highway act of 1787, to acquire the necessary rights in Molenor's and Meyer's lands. Precept was issued to the sheriff, a jury was impaneled before the mayor's court to assess the damages, and on September 21, 1795, it was ordered that— "Mr. mayor issue his warrant on the treasurer to pay William Molenor the sum of fifty-two pounds, and John Meyer the sum of twenty-seven pounds, for the sums assessed by the jury at the mayor's court as recompense and damages for their respective lands taken to continue the Bloomingdale Road."

It appears by a marginal entry that this warrant was issued. II Min. Common Council, 288, 289.

This historical outline shows, I think, that the proceedings for the extension and widening of the Bloomingdale Road were had under chapter 61 of the Laws of 1787 (the highway act), and not under chapter 88 of the laws of that year relating to streets; that the sole purpose of the corporation was to improve, widen, and extend a public road, and that all proceedings had that sole object in view; that the scheme was a single and uniform one; and that the interest the corporation sought to acquire was the same as to the lands of all the owners, whatever the method adopted to secure the end. Conceding that the old road was in fact, as it has been held in law, to have been reduced to the width of two rods, under the act of 1751, the one purpose was to secure a highway of the uniform width of four rods; widening the old road to its termination at De Peyster's barn two rods, and laying out thence a new road of the desired breadth. Where the owners would "treat and agree," an instrument expressive of the intention to give the user of the land for the purpose desired was adequate. Where the owners would not, eminent domain proceedings were necessary. In either case it would seem that the city would get a similar title by purchase. Both proceedings were part of one scheme by which the city sought to acquire the same rights for the benefit of its denizens. It is difficult to see any distinction in principle between the title acquired by eminent domain and that by the execution of the most formal deed. The former amounts to a statutory conveyance, and there is no distinction between such a conveyance and a voluntary conveyance made for a public use." Story v. N. Y. El. R. Co., 90 N. Y. 122, 172, 43 Am. Rep. 146.

What the city sought to acquire was a public road or highway under the act of 1787, and not a street. "Bloomingdale Road was laid out and maintained as a public road or highway, and the legislation with respect to such was different from that under which the city laid out and regulated streets." Deering v. Reilly, 167 N. Y. 184, 192, 60 N. E. 447, 448. Now, the nature of the title acquired in lands taken for a highway or road is quite different from that acquired in lands taken for a street or avenue. In the former case, an easement

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only is acquired; in the latter, a fee. Van Amringe v. Barnett, supra; Matter of Lexington Ave., 29 Hun, 303, affirmed in 92 N. Y. 629; Deering v. Reilly, supra. "The distinction seems to be that lands taken for highways in this state are not taken in fee, but an easement only is acquired for the object in view, while lands taken for the purposes of a street or avenue are acquired in fee by the city." Matter of Lexington Avenue, 29 Hun, 305. That an easement only is acquired where lands are taken for highway or road purposes is an elementary proposition that has been insisted on in this state from its earliest organization to the most recent times. 3 Kent, Comm. 432; Cortelyou v. Van Brundt, 2 Johns. 357, 3 Am. Dec. 439; Jackson v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263; Gidney v. Earl, 12 Wend. 98; People v. Kerr, 27 N. Y. 196; Bloomfield Gaslight Co. v. Calkins, 62 N. Y. 386; Deering v. Reilly, supra. "The appropriation of land for the use of a highway is for a specific purpose, and the public thereby acquire a mere right of passage, with the powers and privileges which are incident to such a right. The fee of the land still remains in the owner, and he does not become divested of the title because the public have a free and unrestrained right to the use of the same." Bloomfield Gaslight Co. v. Calkins, 62 N. Y. 388. ·

In People v. Kerr, supra, the court say:

"In the case of an ordinary highway, all which the state or public obtain by their dedication or opening is said to be an easement of a limited character. All but this remains in the original owner or his assigns, with all its incidents, subject to no restrictions or adverse rights, except this right of passage by the public. * Such is the rule which has been applied to all titles acquired by the legislative appropriation of property to public or quasi public uses. Such titles, although given in the broadest and most unqualified language by statutes, are limited to what is needful to effectuate the purpose, and the original owner is deprived of nothing more." 27 N. Y. 196.

Referring now to the instrument of 1795, in the light of these several principles, I think it ought to be evident that what the grantor intended to convey, and what the corporation in fact acquired, was an easement, merely. This so-called release is made with reference to a specific public improvement-one in conception and execution. "Whereas the Mayor, Aldermen and Commonalty * ** have

iately laid out, regulated and continued the public highway or road, of the breadth of four rods," etc., is the way the instrument begins, and shows, not a formal deed between parties for a valuable consideration, but a grant in aid of an improvement which, under the statutes then in force, contemplated the acquisition of a mere right of way. "The law will not presume a grant of a greater interest or estate than is essential to the enjoyment of the public easement. The rest is parcel * It follows * * that the person in possession of the farm or lot through which the highway passes is, in contemplation of law, in possession of the highway, subject to the public easement." Gidney Gidney v. Earl, 12 Wend. 99.

of the close.

* *

After the preliminary recital the instrument continues:

"Now therefore, know ye that, in order to show the willingness and consent of the said persons that parcel of their respective lands, or so much thereof as may be necessary for the said road of the breadth of four rods, should be taken and held by the said Mayor, Aldermen and Commonalty of the City of New York, for the purpose of a public road as aforesaid."