Reports of Cases Heard and Determined in the Appellate Division of the Supreme Court of the State of New York Volume 138 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1910 edition. Excerpt: ...light and air, and also to beautify and adorn. A street may in part unite the two purposes, one to furnish a way for travel and the other as a park or public place. These elements have frequently been united, and there is scarcely a city in the State where roads, boulevards and avenues have not been opened for the purpose of travel, and in connection with such use lands have been acquired for the sole purpose of furnishing ample space, in order that the enjoyment of the street itself by the inhabitants of a municipality may thereby be enhanced." If under the authority to take land for a street the municipality can set off a part thereof for courtyards, in that such use is a street purpose, I see no reason why, when land is dedicated for a street, that the donee cannot devote a part thereof for courtyards without diversion of the use. (See, too, McDonald v. City of St. Paul, 82 Minn. 308, citing Daugherty v. Village of Horse/wads, 159 N. Y. 154, and 1llcArt/z ur v. Saginaw, 58 Mich. 357.) Of course, due regard must be had to the requirements present and forecast for the public travel, which is the paramount consideration. I think, then, that the city could by ordinance authorize the use of five feet on either side of this street for courtyards. For of the sixty feet of width, thirty feet remain for the roadway and ten feet on each side remain for the sidewalks. I think that the erection of a fence by an abutter about a courtyard in front of his house, when the courtyard is authorized by the public authorities, need not be taken as a violation of the easement for street purposes. For a fence may be regarded as appurtenant to the courtyard for its protection and preservation. A courtyard is not intended for use as away by the traveler...