Hyperlawhypertext legal database Ocean Causeway of Lawrence v. Gilbert 54 A.D. 118

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Ocean Causeway of Lawrence v. Gilbert

54 A.D. 118 Court N.Y. App. Div. English

Delivered by Woodward, J.:

Contents

Majority

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Ocean Causeway of Lawrence, Long Island, Respondent, v. Frederick L. Gilbert, Appellant.

Headnote

Sheriff’s sale — what passes under a specific description- of part of land, used for a causeway, followed by a general description of the causeway.
Where the real property of-a corporation, organized for the purpose of constructing and maintaining a causeway, with a drawbridge, across Rockaway inlet, and of collecting tolls for the úse of the same, is sold under execution, a sheriff’s deed, which; after describing by metes and bounds two of the three parcels of land upon which the causeway was constructed, contains the following independent .paragraph: “Together with the drawbridge, búlkheads, causeway or road, and all the buildings erected upon the said above-described premises,” operates to convey the drawbridge, bulkheads, causeway and buildings, notwithstanding the fact that only a .portion thereof is located upon the ‘ ‘ above-described ” premises.
Appeal by the defendant, Frederick L. Gilbert, from a judgtnent of the Supreme Court in favor of the plaintiff, entered in the office
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of the clerk of the county of Nassau on the 4th day of December, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.
Charles D. Ingersoll, for the appellant.
Peter B. Olney, for the respondent.

The plaintiff is a domestic corporation, evidently organized for the purpose of constructing and maintaining a causeway, with a drawbridge, across Rockaway inlet, in the town of Hempstead, Long Island, for which tolls are collected from those who make use of the way. In January, 1897, James A. Simmons and Joseph Marrone recovered a judgment against the plaintiff for $5,841.19, upon which execution was issued to the sheriff of the county of Queens, directing him to satisfy the same out of the personal property of the debtor, and in the event that a sufficient amount of personal property be not found, then out of the real property owned by the debtor at the time of docketing the said judgment. The sheriff, failing to find sufficient personal property, levied and seized upon all the ■estate, right, title and interest which the judgment debtor had of, in and to the premises involved in this action. Subsequently the sheriff advertised the property for sale, and on the 8th day of May, 1897, it was struck off to the defendant for $5,850. It appears that this causeway or road, with the drawbridge, is located upon three several plots of ground, one of them known as a portion of Shelter Island, the detailed, description of which is given in the deed and does not appear to be necessary to the determination of this controversy. The second plot is described as “ all that certain strip, piece or parcel ■of nieadow, marsh and beach lands situate, lying and being in the Town of Hempstead, County of Queens, State of New York, the center line of which is bounded and described as follows, to wit: Beginning' at a stake on the southerly side of Cedarhurst avenue, which forms part of the southerly boundary of Cedarhurst in said town, and running thence south 11 degrees 49 minutes east 2,229 feet to a stake on the northerly side- of Rockaway inlet, said line being parallel with the westerly line of a dug ditch, the location ■of which is shown on a 1 Map of a portion of Shelter Island, belonging to the Town of Hempstead, survey made April, 1892, for F. B.

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Lord, Esqr., scale 100 feet to 1 inch,’ made by Thomas Y. Smith, civil engineer, filed in the office of the Town Clerk of the Town of Hempstead, May 23rd,- 1892, and is distant from the westerly line of said ditch forty-five feet; thence, continuing the same in a straight line south eleven degrees .forty-nine minutes east across said Rockaway inlet and marsh or beach land to land first described in said indenture of lease, dated May 27th, 1892, being about eight hundred feet. The said strip herein described being ninety feet in ■ width,.to wit: forty-five feet on each side of said center line above described measured at right angles thereto.” Immediately following this description, which ends-in the deed with a period, and in an independent paragraph, ar'e found the following words: “ Together with the drawbridge, bulkheads, causeway or road, and all the buildings erected upon the said above-described premises.” It is-conceded that only a portion of the causeway, with the drawbridge- •and buildings, is constructed upon the above-described premises, and the question raised by the plaintiff’s action, in which it seeks an injunction restraining the defendant from asserting rights in the-causeway, drawbridge, etc., is whether these words convey title to-this portion of the property of the plaintiff." The learned. court below found in favor of the plaintiff, holding that the descriptions given by the sheriff’s deed did not include the drawbridge, causeway and buildings, and that “ ‘ nothing passes by a deed except what is-described in it whatever the intention of the parties may have been,’ citing Coleman v. Manhattan Beach Imp. Co. ( 94 N. Y. 232 ) and Thayer v. Finton (108 id. 397). From the judgment entered upon-tiffs decision, to which the defendant has filed an exception,, appeal comes to this court.

After a careful examination of this "question, we are forced to-conclude that the court below has applied the .rule without due-regard to its limitations, and that the judgment does not do justice-to the defendant, who has invested nearly $6,000 under circumstances which gave him a right to expect that he was purchasing-the title -to whatever rights the plaintiff had in the causeway, with its drawbridge, toll house and other structures incident to the same.. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them.' On the contrary, every reasonable intendment will be made in their favor, so-

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as to secure, if it can be done consistently with legal rules, the object' they were intended tó accomplish. ( White v. Luning, 93 U. S. 514 , 523.) In Coleman v. Manhattan Leach Imp. Co- (supra), relied upon by the court below, in introducing the language quoted, it was said : “ It is doubtless true that the premises upon which a grant is to operate must be described in the grant so that they can be identified. But it is not necessary that they should be described by boundaries, courses or distances, or by reference to monuments. Words of general description, such as the estate of Blackacre, or the estate purchased of A., or the farm in the occupation of B., are sufficient.” At this point the court remarks: “Nothing passes by a deed except what is described in it, whatever the intention of the parties may have been, but when words of general description are used, oral evidence is admissible to ascertain the particular subject-matter to which they apply, without infringing upon the rule which prohibits parol evidence to add to or contradict the language of written instruments.” In People ex rel. Myers v. Storms ( 97 N. Y. 364 , 367), where it was sought to avoid a mortgage' by reason of vagueness and uncertainty in the description of the mortgaged premises, the court say : “In answering it, we are to regard the rule that a deed should never be held void when the words may be applied to any intent to make it good, and to that end they are to be taken most strongly against the grantor, for he should not be allowed to say a description framed by himself was so indefinite that,, upon an enforcement of the mortgage, no title to the property could be acquired. * * * It is enough, therefore, if, by any particulars, in the description, the thing granted can be sufficiently ascertained,, to enable the court to say that the words chosen by the parties were-intended to relate to it; and for that purpose "we may go beyond the face of the deed if it refers to.some subject-matter in respect, to which we can locate and apply the description.” The court,, singularly enough, cites Coleman v. Manhattan Beach, Imp. Co. (supra) for this proposition, and it was said in White v. Luning (supra) that “ the rules are the same, whether the deed be made by a party in his own right or by an officer of the court.” In the- Storms Case {supra) the mortgage described “ a certain other piece or parcel of land lying and being situated in the county of Tomp
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kins, being part of lot Fo. 86 in Lansing aforesaid, bounded as follows, viz.” Here followed a detailed description of a lot containing ■“ 133 acres of land,, the same more or less,” with this addition : “ The intention of this' last-mentioned piece of land is to mortgage 46 ■acres of End on the south side of it next-to Mr. Horton’s to secure a part of the above consideration.” The property was not contained within the limits of the land described, but was on the south ■side of it next to Mr. Horton’s, and the court held that the description of the 133 acres was inserted by mistake, and that the, 46 acres of ground mentioned in the last clause, and which could be found between the .north line of Horton’s land and south of the parcel described, was the property intended to be mortgaged.

In Jones v. Smith ( 73 N. Y. 205 , 209) the court say : “ An island, ■or any other parcel having a well-known designation, conveyed as such and by name, would' pass, although misdescribed' in the statement of the particular boundaries or as to quantity, and for the reason that the intent to grant a tract of land, well and definitely ■described - by its name,, is evident.” So, in the case-of Wooley v. Inhabitants of Groton ( 2 Cush. 305 , 309), the court say : “ On consideration, the court are of opinion that a pound, etc vi termini, is an enclosed piece of land, secured by a firm structure of stone or ■of posts and timber, placed in the ground; and, like the grant of a mill, house or wharf, carries the land on which it stands with it, not as 'an appurtenance, bitt as parcel of the subject-matter of the-grant.” In Johnson v. Rayner ( 6 Gray, 107 ), where the grant, in addition to the fee of a house and land, conveyed “ also a well of water, with the curbs, pumps and all utensils- belonging to them, as the same now stands in the said other land,” it was held that the fee to a plot of ground inclosing the well passed to the grantee. The court say : “ The term £ well ’ aptly designates the soil covered by and used with it. It is an artificial excavation and erection in and upon land, which necessarily, from its nature and the mode of its use. includes and comprehends the substantial- occupation and beneficial enjoyment of the whole premises on which it is situated.”

* These authorities rest upon the sound and reasonable rule that whenever land is occupied and improved by buildings or other structures designed for a particular purpose, which comprehends its practical beneficial use and enjoyment, it is aptly designated and

p. 123
conveyed by a term, which describes the purpose to which it is thus appropriated. (Johnson v. Rayner, supra.) Considering the facts ■of the case at bar in the light of these modifications of the rule, ■we are of opinion that the sheriff’s deed passed title to the interest of the plaintiff in "the specific parcels described by metes and bounds, “together with the drawbridge, bulkheads, causeway •or road, and all the buildings erected upon the said above-described premises,” the last clause being regarded as mere surplusage. A ■causeway is defined by the American and English Encyclopedia of Law (Vol. 5 [2d ed.], 777) as “a way raised above the level of the ground, by stones, earth, timber, etc., serving as a dry passage over wet or marshy ground,” and the drawbridge involved in the present controversy is merely a portion of the causeway leading over an arm ■of the sea. It is not questioned that the sheriff levied upon all of the property in the possession of the plaintiff and in use in connection with the maintenance of the causeway, from which a revenue was collected. It appears affirmatively that there is no- other causeway or drawbridge in that vicinity, and the sheriff’s notice of sale ■offers the whole property, which is described in detail as to two plots, while the third is conveyed by a term which describes the purpose to which it is dedicated. This meets the requirement' that, in determining what is* to be conveyed by a deed, the intention of the parties, as in every other instrument, is controlling (Perrior v. Peck, 39 App. Div. 390 , 396), and it permits the defendant to receive that which he evidently purchased in good faith, paying therefor a substantial consideration.

We have nothing to do with the fact that the plaintiff had no title to one of the parcels described, or that it is occupying the parcel by consent of the real owners. The defendant purchased whatever of' right and interest the plaintiff had in the general property used in connection with this causeway. If a third party, not before this court, has a good title to any of the parcels involved, his rights are not affected by the judgment in this action. We have only to do with the parties before us, and as between them, upon this record, the defendant was entitled to prevail.

All concurred, except Hirschberg, J., not voting.

Judgment reversed and new trial granted, without costs.

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