Page:Harvard Law Review Volume 4.djvu/90

74 74 HAR VARD LAW RE VIE W. the elevated roads of the city extend is in streets where a qualified fee of the street is conferred or vested in the city without any specific covenant in a conveyance from the city as in the Story case. The language of the Act of 1813, under which most of the streets in the city were opened and laid out, is as follows : " In trust, nevertheless, that the same be appropriated and kept open for a part of a public street . . . forever in like manner as the other public streets ... in the said city are and of right ought to be." But in the Lahr case the court, after assum- ing as their rule of conduct the principle of the Story decision, said that wherever the opinion in the Story case led they felt bound to go, and held that under these street-opening acts there was just as definite a trust created on the part of the city as in the case of a covenant like that in the Story case, and that the abutting owners being liable to assessment for street purposes it would be little short of "legalized robbery" if these benefits could at the next moment be taken from them. . There remained still one more resource for the elevated railroad companies to deny their liability. There were a few streets on the line of their road, where there was not a covenant from the city, as in the Story case, nor were they opened under the act of 18 1 3, as in the Lahr case. (Pearl street and the Bowery are ex- amples.) It has always been contended that in these ''Dutch brief" cases at least there is no liability to the property owner. The argument to support this contention is based upon the theory that these streets were originally Dutch highways, and sub- ject to Dutch law ; that by the law of the Dutch the municipality owned the fee of the streets subject to no trust in favor of the abutting property owners ; and that when the English succeeded to the control of Manhattan Island in these streets the rule of the Dutch law prevailed. The case of Dunham v. Williams ^ is the chief case relied upon as an authority for this position. That was a case holding that where a highway was laid out prior to the capitulation of the Dutch, the title of the government to it became absolute, as that was the rule of the civil law, and the Dutch made it a condition of their surrender that they should remain in the enjoyment of their oyn customs as to inheritance. The argument has been repudiated by the Supreme Court of New York, by the Superior Court of the City of New York, and ' 37 N. Y. 251.