Ennis v. Grover — 53 Misc. 66

Majority

p. 66

Thomas A. Ennis and Charles F. Stoppani, Composing the Firm of Ennis & Stoppani, Plaintiffs, v. Clara A. Grover, Defendant.

(Supreme Court, New York Special Term,

February, 1907.)

Headnote

Easements: Change of interest in estates — Eight of purchaser of dominant estate; Extinguishment and revival — Extinguishment generally— Street between upland and wharfage. Where, under a deed from the city of New York in 1847, the grantee of upland and bulkhead rights acquired, as appurtenant thereto, the wharfage rights immediately opposite the dominant tenement, and, upon a partition of the land in 1860 by the heirs of the grantee from the city, the deed of four lots to one of said heirs granted all the wharfage rights lying in front of the land conveyed to her, and tlio city in 1868 by a deed to the heirs of its grantee confirmed the deed of 1847, a specific devise of the four lots by the grantee of the deed in partition, by reference to their numbers in the partition map of 1860, embraces the wharfage and bulkhead rights opposite thereto although no specific reference thereto was made in the deed. A separation of riparian rights from the upland will not be permitted because of the existence of a public street or road between the outer edge of the upland and tide water.

p. 67

Action for the enforcement of certain easements appurtenant to plaintiffs’ lands.

• Cleveland & Cleveland, for plaintiffs.

Eemsen fa Parsons, for defendant.

Under the general rule that a gTant in gross is never presumed v hen it can he fairly construed as appurtenant to some other estate, it is quite clear that the wharfage rights in question were appurtenant to the land granted to William Hockman by the city of Hew York in 1847. Wharfage rights may constitute an easement in gross as was the pase in Mayor, etc. v. Law, 125 N. Y. 392 , but there the grantee did not own the upland at the point in controversy, and the court held, in view of the circumstances of the case, that the intention was to create an interest in the wharf which the grantee could enjoy himself or convey to any other person. The facts in this case are entirely different. The wharfage rights acquired by Hockman under the same deed which granted to him the upland and the bulkhead rights were immediately opposite to the dominant tenement. In the partition of the land in question by the heirs' of Hockman, in 1860, four lots on the east side of Thirteenth avenue, being the north half of the block frontage between Eighteenth and nineteenth streets, were conveyed to- Eliza Hockman, and the deed by appropriate language granted all the wharfage rights lying in front of the land conveyed. In 1868 the city, by deed to the heirs of William Hockman, confirmed the deed of 1847. It is quite clear, therefore, that, as between the city and William Hock-man and William Hoclcman’s heirs, the wharfage rights were intended to be appurtenant to the land conveyed. In 1886 Eliza Hockman died leaving a will containing no residuary clause. Every gift or devise is specific. The lots fronting on the east side of Thirteenth avenue were devised by reference to their map numbers in the partition map of 1860. Ho specific reference was made to the wharfage or bulkhead rights. Thereafter all the heirs of Eliza Hockman,

p. 68

except the defendant, quitclaimed to the devisee all interest in the wharfage or bulkhead rights. The defendant claims that these rights did not pass under the will to the devisee of the land and that, as to these rights, the said Eliza Hoclcman died intestate. But an easement which has become appurtenant to land, either by grant or by prescription, will pass by a. grant of the land whether or not the easement is expressly mentioned in the deed or the land is conveyed with its appurtenances; and this is true although the easement is not strictly necessary for the enjoyment of the thing conveyed. 10 Am. & Eng. Encyc. of Law, 418. Under the familiar doctrine that the court favors a construction that, prevents partial intestacy, it requires no strained construction to conclude that Eliza Hoclcman intended to devise her bulkhead rights adjacent to the lots on the east side of Thirteenth avenue devised by her. These rights belonged to the dominant tenement; they were conveyed with the upland in the original grant. Their existence was recognized by the city and by the heirs of the original grantee, including Eliza Hockman, as appurtenants. It appears from her testamentary disposition that she intended to dispose of all her property. There is nothing to indicate a design to sever the easement from the uplands, and the devise of the lots should be held to embrace the wharfage rights opposite thereto. Thirteenth avenue was merely the boundary line of the-city along the water front and is not to be treated as a separate and distinct parcel of land. The existence of a public street or road between tire outer edge of the upland and the tide water will not be permitted to separate riparian rights from the upland. Langdon v. Mayor, etc., 93 N. Y. 130 . The defendant has no interest in the easement and the demurrer is overruled, with costs.

Demurrer overruled, with costa.