First Department, December, 1915.

App. Div.] extinguishment of easements should no longer remain uncertain and open to question, the court said: "We think it was the purpose of the statute to permit the extinguishment of all easements, private as well as public, and this without reference to their origin and whether they depend upon mere contiguity or upon grant, express or implied. There is no logical basis for making any distinction between one class of private easements and another. The closing of streets in order to permit the adoption of a uniform plan of municipal improvement being a public purpose, and an actual closing being necessary to carry out that purpose, it is just as essential that private easements resting in grant shall be extinguished as any others. Unless they could be acquired upon proper compensation being made therefor, the statute would fail of its purpose. We are, therefore, of the opinion that the private easements affecting the property sold in this case were lawfully extinguished under the provisions of chapter 1006 of the Laws of 1895, independently of any question of estoppel."

It is to be observed that the Court of Appeals, in the opinion above quoted, goes no further than to say that it was the purpose of the statute to permit the extinguishment of private easements. In this regard it does not go to the full extent that the Street Closing Act does, because that act provides (§ 2) that when a public street, road or thoroughfare has been discontinued as provided in the act, whether in the case of an unused highway by the filing of a map, or in case of a used highway by the physical opening of a new street, it shall cease to be or remain for any purpose whatever a street, avenue, road, highway, lane, alley or thoroughfare, and the owner in fee of the land or soil within the boundaries thereof may thereupon enclose, use and occupy the same as fully as if the same had not been laid out, dedicated, established or used." Clearly this implies an intention on the part of the Legislature that all easements, public and private, are to be extinguished ipso facto by the fact of the legal closing of the discontinued highway, for if any remained, the owner of the fee in the bed of the old street, not being the owner of the abutting property on both sides of the highway, could not "enclose, use and occupy the same as fully" as if the old street had never existed. This has always been understood to

First Department, December, 1915.

[Vol. 170.

be the effect of the act as to public easements, and if we read the opinion of the Court of Appeals aright there is no logical basis for making any distinction between one class of easements and another, except that for the extinguishment of private easements the owner of the dominant tenement is entitled to compensation.

We do not understand that the plaintiff dissents from the proposition that the purpose and effect of the Street Closing Act of 1895 was to permit the extinguishment of all easements, both public and private, over the bed of the discontinued street, but his claim is that as to private easements resting on grant, express or implied, the actual extinguishment of the easement does not take place until such easements have actually been condemned or otherwise acquired and paid for. There are expressions in the opinion from which we have quoted which certainly lend color to this contention, but that question was not involved in the case in which the opinion was written. There was no question of compensation in the case because it was one of the established facts that the owner of the dominant tenement had petitioned for and been awarded substantial damages for the injury done to his property by the legal closing and discontinuance of the street upon which it abutted including the extinguishment of his private easements.

The Street Closing Act makes no condition that the private or other easements shall be actually condemned and paid for before they are extinguished, for the owner of the bed of the street is permitted at once upon the legal closing of the street, which in some cases is affected by the mere filing of a map showing the street as discontinued, to inclose, use and occupy the same as fully as if it had not been a street. This clearly can mean only an instant extinguishment of all easements upon the legal closing of the street. The Street Closing Act of 1895 provides two methods by which the owner of a dominant tenement whose appurtenant easements have been thus extinguished may enforce a claim for compensation. By section 4 of the act the focal authorities making and filing a map indicating the closing and discontinuance of a highway are required to deliver to the corporation counsel a certified copy of such map, and if said authorities fail to do so after being

App. Div.]

First Department, December, 1915.

requested by the owner of any land interested or affected by such closing or discontinuance, it is made the duty of the corporation counsel to himself procure such certified copy, and thereupon to institute condemnation proceedings "to ascertain and determine the compensation which should justly be made to the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises, rights, easements or interests therein taken, affected, damaged, extinguished or destroyed by such discontinuance and closing," and the courts will enforce the performance of these duties by the corporation counsel by mandamus. (People ex rel. Winthrop v. Delany, 120 App. Div. 801; sub nom. People ex rel. Winthrop v. Pendleton, 192 N. Y. 533.)

Succeeding sections of the act provide a complete scheme for ascertaining and enforcing the payment of such damages, following in this regard the provisions prescribed in the case of street openings.

An alternative method of ascertaining and enforcing payment of such damages is provided by section 14 of the act under which a property owner injuriously affected by the closing of a highway may intervene in a pending street opening proceeding and thus obtain compensation for the loss of his

easements.

Thus we have the decision of the Court of Appeals that the act of 1895 operates, as it clearly was intended to operate, to extinguish all easements, private as well as public, over the bed or the soil of a street closed and discontinued in accordance with the terms of the act, and we have also the clearlyexpressed intention contained in the act that such extinguishment shall be instant upon the closing and discontinuance. Unless this latter provision of the act is invalid upon constitutional grounds, the defendant was legally justified in erecting the buildings and structures complained of upon the westerly half of the bed of the former Bear Swamp road of which he has acquired the title in fee, for the plaintiff's easements over said land had been extinguished.

The fundamental doctrine, of course, is that private property may not be taken for public purposes without just compensation,

First Department, December, 1915.

[Vol. 170. but this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy be provided whereby the owner of such property may compel payment of his damages. (Matter of United States, 96 N. Y. 227, 237; Bloodgood v. M. & H. R. R. Co., 18 Wend. 9; Lyon v. Jerome, 26 id. 485; People ex rel. Utley v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308; Sun Pub. Assn. v. Mayor, 8 App. Div. 230, 255.)

The provisions contained in the act of 1895 for securing a remedy to the property owner whose easements have been extinguished are adequate and certain. Such a property owner has it in his power to compel the proper proceedings to be taken, and the provisions as to the method of ascertaining the compensation to be paid and the enforcement of an award therefor are entirely similar to the provisions of law relative to the opening of streets, which have always been deemed to furnish an adequate and certain remedy for a person whose property is taken under the power of eminent domain. (Sun Pub. Assn. v. Mayor, supra, 255.)

It follows from these views that all the easements of plaintiff and his predecessors in title, however derived, were extinguished when Bear Swamp road was legally closed and discontinued, and that defendant, having acquired title to the westerly half of the former bed of said road, holds the same freed from any easements in favor of the property owned by the plaintiff. Consequently there must be judgment for the defendant as prayed for in the submission, but without costs.

MCLAUGHLIN, CLARKE and SMITH, JJ., concurred.

INGRAHAM, P. J. (dissenting):

I dissent and vote for judgment for plaintiff.

Judgment ordered for defendant, without costs. Order to be settled on notice.

App. Div.]

First Department, December, 1915.

In the Matter of the Judicial Settlement of the Account of Proceedings of THOMAS C. REID and WILLIAM H. LOTTY, Trustees of the Estate of WILLIAM H. LENT, Deceased. THOMAS C. REID and WILLIAM H. LOTTY, as Trustees, Appellants; F. CORDELIA FARLEY, Respondent.

First Department, December 30, 1915.

Trust - will investment by trustees-loan to partnership.

One L., upon retirement from business, executed a trust deed to R. and F., the other members of the firm, whereby he conveyed to them, as trustees, all his right, title and interest in the firm, and provided that the net income derived from said trust property should be paid to him during his lifetime, and made alternative provision for its disposition after his death. The trustees were authorized in their discretion to permit the whole or any part of the estate to remain in the business, as a loan, for such period as they might think proper. On the same day L. executed his will in which he appointed R., F. and another as executors and trustees, and gave his residuary estate to them in trust during the lifetime of two sons, and provided that they might invest funds of the estate in any way that might seem to them for the best interest of the estate, giving to them, or to the majority of them, unlimited discretion as to such investment, freeing them from all liability, except for gross negligence, and particularly authorizing them to loan any portion of the estate to the firm without other security than the notes of the firm, so long as R. or F. or either of them might be members. After the death of L. the firm was dissolved by the death of F. and a new firm under the same firm name was organized by R. and another, which executed notes to the trustees for L.'s interest in the capital of the firm, and subsequently renewed the same.

Provisions of the trust deed and the will construed, and held, that the trustees acted within the discretion given them in renewing the notes given by the new firm.

A testator or the creator of a trust has unlimited authority to direct how his money may be invested by his trustees or may leave the manner of such investment completely in the discretion of such trustees.

APPEAL by Thomas C. Reid and another, as trustees, from a decree of the Surrogate's Court of the county of New York, entered in the office of said Surrogate's Court on the 26th day of July, 1915, judicially settling the intermediate account of said trustees.

An appeal is taken from said decree in so far as it disallows