Rose v. Hawley

The nature and purpose of the conveyance by the plaintiff to the town of Yonkers were to devote the premises to the use of the public for a highway. In accepting the deed, the town assumed the duty of' observing the trust. This duty was due to the public for whose benefit the conveyance was made, which, in practical effect, dedicated to it the easement protected by title in the town and guarded by the terms of the grant. The then unincorporated village was afterward incorporated (Laws of 1855, chap. 331), and later as a city (Laws of 1872, chap. 866), and vested in it were all rights of property, real and personal, of the village

The trial court found that the Radford hall encroached upon the premises conveyed to the town of Yonkers at the west end on Broadway one foot and tliirty-seven-one-hundredths of afoot, and on the east end two inches. The length of that side of the building is sixty-four feet. The court also found that an area on the south side of the building further encroached upon the premises m question, in which is a stone stairway leading below, and that the souith wall of the area is one and one-third foot thick, eight feet high and sixty-four feetdong; that around the area-way and about six feet from the south boundary of the building, from November, 1864, to January, 1882, an erection above the surface of the ground enclosed the area-way, and over it were gratings and a cellar-door, which when open was an obstruction. This area is below the surface of the ground, about eight feet deep and is four feet wide from the building to the wall, which is also substantially below the surface of the street; the gratings are flush with the walk, also the cellar-door when closed. And over the area is a regular sidewalk for footmen, for which purpose it is used. It is not inconveniently above the surface of the street for a sidewalk, nor does it appear that the door over the stairway below has, by being open, been any obstruction to the use of the sidewalk. That this area occupies land conveyed by the plaintiff to the town is not questioned. The requirement by the deed is that this land “ shall forever ■ hereafter be and remain public and open as a public highway, and that no house, building or other erection whatever except a public monument shall be built or erected or permitted upon ” it. This is to have a reasonable construction and will not be extended by inference. The purpose of it appears to have been to preserve the use of the premises for a highway or a public street, and anything erected upon them inconsistent with that use, would violate the apparent design. But it cannot be assumed that what is usually or commonly permitted or required in streets of villages or cities, came within the prohibitory provision of the deed. It would

The construction of the wall of the area was not, nor was the area an erection upon the land within the meaning of the condition. Xor was it rendered so by the use of it. When the Farrington hall was erected in 1851, the area was first constructed. The streets there were then under the control of the constituted authorities of the village of Yonkers, as they also were when the hall was reconstructed by Badf ord in

The court made no finding on the question of knowledge or notice of the village or city of any encroachment of the building, and refused to find that the town, village or city never gave permission to the defendant Hawley or his grantors, or any other person, to erect upon the premises any building or other erection; and exception was taken to such refusal. Motion was made to dismiss the complaint on that and the

The deed is entitled to such construction as will carry into effect the intent of the parties so far as such intent can be collected from the whole instrument. (1 r. S., 748, § 2.) It evidently was designed that the reserved right of forfeiture should be dependent upon violation of the condition by the grantee or its successor charged with the trust, and for the purpose of preserving the rights of the parties *tlie provisions of the deed must have a reasonable construction and effect. To justify the assertion of breach of the condition and thereby defeat the title, the violation of it must in some sense be pen mitted by the municipality. (Indian Orchard Coal Co. v. Sikes, 8 Gray, 562 .) If a trespasser should suddenly place an erection on the premises before the city had a reasonable opportunity to prevent or remove it, the act would not constitute a breach, although its permitted continuance might. The duty imposed upon the municipal authorities was that of diligence to protect the premises for the declared public use, and against the prohibited invasion, and they were required to observe that of which reasonable diligence would advise them in that respect. The conclusion was not warranted by the evidence that the village or city had any notice that the Farrington hall or the Badford hall encroached to any extent upon the premises, which constituted part of the highway under its control, nor can it be said in view of what appears by the evidence that reasonable diligence on their part would have led to the information that it did. It was at least a very doubtful question of fact, and one which the municipal authorities, upon the conflicting information, if they had sought it from all the sources from which the evidence on the trial was derived, may reasonably have felt justified in not resorting to the courts for determination. It was at most a matter of much uncertainty, and so much so upon the evidence that no

The matter was a controversy about the location of the line between the land in question and that lying north of it, with a difference in the dispute of sixteen inches at one end, tapering down to two inches at the other. This was a small strip. And it would hardly seem that the question whether or not there was an effectual breach of the condition was dependent upon the determination of that controversy. We think the evidence did not warrant the conclusion of any substantial breach of the condition ; that the court erred in refusing so to find as requested; and that the complaint should have been dismissed upon the grounds before mentioned, especially on the motion made at the close of the evidence.

It cannot be held as matter of law that the plaintiff waived his right to assert by action the alleged breach. He says that he observed when the Farrington hall was being erected in 1857, about twenty-nine years before the commencement of this action, that the south wall encroached upon the premises; that he knew when Radford was proceeding to erect his hall in 1866, more than twenty years before he brought this action, that its wall in like manner encroached, and that he protested. He was a trustee of the village in 1864 and 1865. He never called the attention of the board of trustees to the matter. If that had been done the village may have disposed of it during the life-time of the successive proprietors of the halls who erected them, perhaps with less difficulty than attended the litigation thirty years after. If it had appeared to the village that an encroachment was being made it would have been within its power and line of duty to stay it or cause its removal

The view taken renders it unnecessary to give any consideration to the question of the statute of limitations.

The order should be affirmed and judgment absolute directed for the defendants.

All concur.

Order affirmed and judgment accordingly.