Holloway v. Southmayd

The following is the opinion and decision- in the case first above entitled:

The land, possession of which is claimed, comprises what was formerly the westerly half of the Bloomingdale road, between Ninety-fifth and Ninety-sixth streets in the city of New York. Originally it bounded a parcel of land which was conveyed by Charles Apthorp and others to David M. Clarkson, by deed, with full covenants, dated October 15, 1799, by this description of the premises, viz.:

“All that certain tract or parcel of land situate at Bloomingdale in the seventh ward of said city of New York, and butted and bounded as follows, to wit: Beginning on the north side of the Bloomingdale road at the corner of the lane leading down to Mr. Striker, and running along the same (the lane leading to Striker), north fifty-eight (58) degrees west ten (10) chains sixty (60) links, and thence by various courses to the Bloomingdale road; thence along the said road north twenty-eight (28) degrees thirty (30) minutes thirty-nine (39) chains and seventy-five (75) links to the place of beginning, containing - ten (10) acres £ according to a map thereto annexed.’ ”

The grantors included in their grant all the easements, privileges, advantages and appurtenances belonging or in anywise appertaining to the land. The Bloomingdale road was opened as a public highway in 1707, by the public authorities, over the land of Theunis Ides. On March 8, 1868, the commissioners of the Central Park, acting under the authority of an act of the legislature, passed April 24, 1867, filed a map re-laying out a district comprehended within Fifty-ninth and One Hundred and Fifty-fifth streets, the Eighth avenue and the Hudson river. Upon this map Bloomingdale road north of Eighty-sixth street was not retained, and its legal closing as a highway dates from the filing of that map.

By mesne conveyances the tract of land, of which the premises in question formed a portion, came into the possession and ownership of Charles Ward Apthorp, who died intestate in 1797. His heirs made various conveyances of the lands; one of which was to Clarkson. The plaintiff is a

It is argued for the defendants, who have become vested • with their rights and titles in the premises through mesne conveyances by successive grantees of the land, since the grant to Clarkson by Apthorp’s heirs, that that grant included the Bloomingdale road to its center line; or, if that was not its effect, that, by virtue of the provisions of the act of 1867 for the closing of that road, the defendants acquired the fee of the road to its center; or, if the fee in the soil of the adjoining portion of the road never passed from the original grantors, that their" grantee, his' heirs and assigns, became vested with private easements in the road for light, air and access, to the purposes of which the ownership of the plaintiff should be declared perpetually subject.

Whatever the individual opinions we might entertain (and they may well differ), respecting the effect of the language in the conveyance to Clarkson to convey to him the fee of the soil to the center line of the Bloomingdale road, we prefer to place our decision upon the broad ground that Clarkson became vested with rights to private easements in the highway; which would perpetually exist as against the grantors and those deriving -title from them; although the public easement in the road should become extinguished by its discontinuance as a public highway. There is great difficulty in reconciling the decisions in this state upon the question of when a description in a deed, which bounds the premises upon a highway, or street, shall be deemed to take in the fee to the center line of the roadbed in front of the premises. There is no doubt

Sufficient evidence of that uncertainty of application will be found from reading the opinions, since the early case of Jackson v. Hathaway ( 15 Johns. 447 ), down to a very recent ■date.

In the very elaborate briefs, which are submitted, the cases have been diligently investigated and collated on both sides, and, by reference to them, it can be seen that there has been more or less divergence in views with respect to how boundary lines are to be drawn, with respect to monuments in the highway and in streams; as, also, with respect to what shall be deemed descriptive monuments.

In the absence of language, which .will plainly express the ■intention of a grantor to exclude from the operation of his grant the soil of the adjacent highway, it is just that doubts should be resolved in favor of his grantee; but in the application of -the principle, there may be some danger to the stability of property rules.

In .a .case apparently governed by precedents, slight departures from the descriptive language used in the earlier cases might be seized hold of to prevent what seems an unjust result. In the present case, for instance, there were found grounds for distinguishing the description in the grant from that used in White's Bank v. Nichols ( 64 N. Y. 65 ), and Kings Co. Ins. Co. v. Elevens (87 id. 287), and in some later cases, and they are pointed out in the briefs of counsel and in the opinions delivered by Hr. Justice Ingraham at the General Term, in this case, and in that of the same plaintiff against Delano.

The distinction, may be justified by the conviction that- such

The case of White's Bank v. Nichols, ( 64 N. Y. 65 ),. is instructive upon this proposition. That was in ejectment, to recover a strip of land which, by construction of a street under the- direction of the public authorities, remained between the new and original street lines. The defendant' was the owner of the abutting property and took possession up to the new street line, and the plaintiff, claiming as the-owner of the soil of the street, sought to eject him. It was-held that, by the original grant of the lot to defendant’s pred- ■ ecessor in the title, its boundary was confined to the exterior-line of the street; but that he had the right to an easement,, of which he could not be deprived, and which consisted in the.

The question involved in that case related to a claim for- ■ damages, upon laying out a town way over land formerly

Professor "Washburn, in his work on Easements (*170), says “upon the authority of Parker v. Frmni/ngham {supra), where one sells land bounded upon the highway, and the same is discontinued by act of law, although the same reverts to the owner of the fee of the soil, the grantor, as such, in such a case, would have no right to deprive his grantee of the right to use the discontinued road for the purpose of a way.”

The Bloomingdale road, it must be remembered, was laid out by the authorities as a public highway over a tract of land owned by Ides, the predecessor in title of the Apthorps. The effect was to burden their land with an easement of way in favor, of the public. As the title to the land in the road remained in them, we think that to bound a parcel of land ■ upon the highway, under conveyances which included all the appurtenant easements and advantages, was to grant easements in the land embraced in the way in favor of their gran- ■ tees, to the extent that they might be beneficial to the estate conveyed. Although the fee of the soil remained in the grantors, it was incumbered with an easement of their own ■creation. (Washburn on Easements [4th ed.], 266.) In the text book cited, the proposition is rested upon the authority of the case of the Opening of Eleventh Avenue ( 81 N. Y. 436 ).

The fact in that case was that the owner of the tract made ■conveyances of portions, bounding them upon intended streets not yet laid out by legal authority, but treating them as located if the map of the public authorities had been extended. The decision of the referee was upheld, as being supported by the ■authorities, that these conveyances, although not amounting to •a dedication of the lands embraced in the supposed streets to the use of the public, or constituting them public highways, ■created an easement in favor of the grantees of the lots abutting thereon; which as between them and their grantor, and

Is there any satisfactory reason for making a distinction, against an application of this rule to a case where the conveyance bounds the premises upon an existing public highway,, which has been laid out over the lands of the grantor, or of his predecessor in title, and the fee in the soil of which, remained in him with • reversionary rights ? The argument, against it is that to refer to a public highway as a boundary is-merely descriptive; but it seems a sufficient answer to that to; say that to bound the grant by the way, the fee of the soil of" which is in the grantor, is to warrant its presence and its continuance not as a highway, but as an open way for access or-enjoyment, so far as the grantor is concerned, in the absence; of words reserving and denying all rights in the highway.

In DePeyster v. Mali ( 92 N. Y. 261 ), the existence of such-an independent private easement of the abutting landowner was distinctly recognized. It is said to be impliedly granted,, because necessary for the enjoyment of that which is expressly granted, and upon the principle that where one grants to-another, he thereby grants him the means of enjoying it, whether expressed or not. In that principle easements of access and of light and air find their support. (2 Washb. Real Prop. 25, 21.)

The easement which the public acquires in the land, upon the laying out of the highway, is limited to those uses for which highways have ordinarily been understood to be intended ; but. the abutting landowner, besides his right as one of the public, may acquire a right to private easements,, even if he never owned the fee of the soil in the highway. If a use of the street, or highway, for public, or quasi public, purposes, has been authorized, which is extraordinary in its-nature, and interferes with a free access, or the free flow of light and air to the abutting owner’s premises, pro tcmto, he is-deemed to have suffered in the enjoyment of property rights. As to him, such a use is illegal and will be restrained, until.

At the time of the sale of the land to Clarkson, the open way, by which the grantor bounded it, existed as the visible incident to the enjoyment of the land; upon what principle may the grantor, or his successors in interest, when the public highway is discontinued by the action of the public authorities, •step in and claim that a right to the exclusive possession and ■dominion of the land embraced in the highway had reverted % The appurtenances in such a grant, which relate to the highway and its uses, are not limited to those which appertain to the general public. That would hardly be contended for.

As is suggested by the counsel for the respondents, as to the grantee, it is only upon the cessation of the public right in the xoad that the practical enjoyment of the private easement, as such, begins. If the fee in the land, upon which the highway exists, has remained in the grantor, its usefulness, if any, to him must be confined to subsoil properties and uses, which do mot interfere with the full enjoyment of the private easements over the land.

It is the better rule to hold that, to exclude a grantee from the perpetual beneficial use of the open way in front of the premises granted to him, the language of the deed should ■clearly express such an intention. Mr. Justice Story, in United States v. Appleton (1 Sumner, 492-502), observed that “ in truth every grant of a thing naturally and necessarily imports a grant of it as it actually exists, unless the contrary is provided for.”

It was said by Strong, J., in Huttemeier v. Albro ( 18 N. Y. 48 ), that whether a right of way, or other easement, is ■embraced in a deed, is always a question of construction of the •deed, having reference to its terms and the practical incidents

Some cases are referred to by the counsel for the appellants,, as being opposed to the view expressed. In Wheeler v. Clark ( 58 N. Y. 267 ), the question involved was, whether a. clause, contained in a certain deed of lots, upon a map of the grantor’s, lands, which subjected the land forming the streets in front of the lots to the use of all the owners of the lots upon the map,, and of the public generally, as public streets, could be construed as perpetually reserving a private right of way over the land of the highway, and the decision was that no private, right of way was created, which plaintiff, as the owner of one lot, could enforce as against the defendant, who was the owner of other lots, and whose title (like that of the other lot owners), upon the discontinuance of the public highway, under his grant, carried him to the centre of the highway.

The question now before us is quite other than in Wheeler v. Clark, or in Kings Co. Ins. Co. v. Stevens ( 101 N. Y. 411 ). In the latter case the defendant, under implied covenant, claimed to have a right of way over a road, which had been closed by the public authorities, and plaintiff’s action was to. restrain her from entering upon the strip of land in front of its premises. The question did not relate to the rights of the abutter in the road in front of her premises ; but to a distant way. FirrcH, J., observed, in his opinion, that “the closing of the street in controversy is in front of the plaintiff’s, premises and not of her’s (the defendant’s) and does not take from her light, air or convenience of access.” In King v. The-Mayor ( 102 N. Y. 175 ), the dispute was with respect to the.right to an award of damages for closing Bloomingdale road as a public highway. After the road was legally closed, by the filing of the map in 1868, but before the making of the award of damages, the owners of the land fronting upon the road

These cases, which the appellant’s counsel have cited from-the reports of this court, are the only ones we need discuss.. In Fearing v. Irwin ( 55 N. Y. 490 ), also cited, the question Avas as to when the Bloomingdale road Avas closed, and the-decision related to the constitutionality of the legislative acts and their effect. In other respects, it rested upon a formal, admission of record. It is not in point here. The very early case of Jackson v. Hathaway, ( 15 Johns. 447 ), cannot be-regarded as an authority upon the question now under discussion ; for the reason that we are not sufficiently informed as to-the terms of the conveyance of the land. Hor should we consider ourselves bound by that case, which concerned the OAvnership of the fee in the lnglnvay, as affected by a conveyance of adjoining land, in the decision of this case. As a precedent in the consideration of the question of when the fee of the land in the road passes to a grantee of premises upon it, under the terms of a description, we are not disposed to

The appellant further contends that these special easements, if .acquired by the abutting owner, were lawfully extinguished .and condemned, as the result of the proceedings had under the act of 1867; providing for the closing of the Bloomingdale road. In that he is mistaken. The purpose and the effect of that act, it is plain from its language, were to discontinue the road as a public highway and, in so ■doing, to extinguish the public easement. The legislature was not concerned with private easements and rights in the land covered by the public highway. Its action left these private interests as they were; the public had no interest in their destruction. The award of damages was to ■compensate property owners who could prove they had been injured by the discontinuance of a public highway. It is ■obvious that the presence of a public highway in front of one’s premises, by reason of the many public and general advantages it offers, confers a distinct value upon them and that its proposed discontinuance may result in a diminished value to the ■owner. The situs of a parcel of land enters into the estimate of its value. If upon a public and prominent thoroughfare, it has a value which it would not possess if the thoroughfare were closed or changed. How great the loss in value is, or if any is in fact sustained, may turn upon a consideration of the circumstances surrounding the proposed alteration; but the legislature, in providing for awards of damages, looks at the general fact of a change being made, which may affect injuriously landowners, and authorizes compensation in such cases.

The result of our consideration of this plaintiff’s demand for the possession of the premises described, of the basis for such ;a claim and of the intention to be deduced from the original •deed of Apthorp’s heirs, from its terms and the circumstances of its making, is, that we hold that though the fee of the soil ■of the road may not have been transferred to the grantee by the conveyance and may have remained in the grantors, and

It follows from the views we entertain upon the questions discussed, that, while the plaintiff was entitled to maintain the action and to have judgment adjudging him entitled to recover the fee of the land in dispute, it was error to award judgment for the unqualified possession of the land. He was not entitled to such a judgment against the defendants, but only to a judgment for the possession subject perpetually to the defendants’ right to the enjoyment of their easement in and over the land.

For the reasons stated, the order appealed from should be affirmed and, under the stipulation of the appellant, judgment absolute should be ordered against him with costs.

I am in favor of affirmance in the Southmayd •case, and in Delano Do. 1, because the defendant is the owner •of the fee of the land to the center of the Bloomingdale road,

The same rule of construction should be applied where the boundary is along the street or highway and the intersecting lines are described as running to the street or highway. But if it must be conceded that the grant does not convey the fee of the street, I concur in the opinion of Gray, J.

Andrews, Ch. J., and Pbckham J., concur with Gray, J.

Earl, Finch and O’Brien, JJ., dissent.

Orders affirmed and judgment accordingly.

The following is the opinion and decision in the case second above entitled:

In this action, the claim of the plaintiff to recover the possession of land formerly embraced in the Bloomingdale road, and between ninetieth and Finety-first streets, in the city of Few York, depends upon the construction to be given to the descriptive words in two grants of land; one made by Charles' Aptliorp and others to John Shaw and the other made by the same grantors to William and Mary Jauncey, in 1799.

In the deed to Shaw, they were the following, viz.: “ Beginning at the corner of William Constable’s land on the north side of the Bloomingdale road, and running thence along said road thirty-eight degrees east, eight chains forty-five links; thence along the south side of a private road in the map hereunto annexed delineated, and forty links wide and north fifty-two degrees west, twenty-two chains ten links, crossing the said private road to the Forth river; thence southwesterly along the side of the said river to the said William Constable’s boundary line, and thence along said boundary line south fifty-three degrees east, twenty-four chains fifty links to the place of beginning, containing nineteen acres three roods and

In the deed to the Jaunceys, they are as follows, viz.: “ Beginning at the corner of a field at the junction of the Bloomingdale road with the crossroad that leads to Harlem ; thence running along the Bloomingdale road south thirty-five degrees west, seven chains fifty links; thence south thirty-seven degrees west, ten chains and thirty-two links, thence south fifty-four degrees east along William Constable’s and ¡Richard L. Brown’s land nineteen chains eighteen links; thence north fifty-four degrees east nine chains fifty-five links; thence south fifty-three degrees east three chains seventeen links; thence north thirty-six degrees east eight chains ninety-two links; thence north fifty-three degrees west thirty-six chains, to the beginning, containing forty-two acres and five perches, according to a map thereof made by Benjamin Taylor, one of the city surveyors of the said city of Hew York and hereunto annexed.”

The General Term were of the opinion that no doubt existed in this case, whatever it may have been in Holloway v. Southmayd ; but that, by the description, the grantees took the fee of the Bloomingdale road to its center line. While we concede that, under these descriptions, the doubt, as to what was the intention of the grantors to convey, might be more readily resolved in favor of the grantees; nevertheless, we prefer to place our affirmance of the General Term’s judgment upon the grounds stated in the opinion in Holloway v. Southmayd, decided herewith.

In either case, we are inclined to the view that the descriptive monuments, or starting points, for the boundary lines cannot be fixed in the centre of the Bloomingdale road, without straining too much the language used. In Shaw’s deed “ the corner of Constable’s land on the north side of the Bloomingdale road ” seems to indicate the side of the road. If we read “ on the north side,” etc., as referring to the general situs of Constable’s land, we should have to assume that Constable owned to the centre of the road; which the proofs do

For the reasons expressed in the case of this same plaintiff against Southmayd and others, the order appealed from should, be affirmed and, under the stipulation, judgment absolute should, be ordered against the appellant, with costs.

All concur; Maynard, J., for reasons stated in memoranda in Southmayd case; except Earl, Finch and O’Brien,, JJ., dissenting.

Order affirmed and judgment accordingly.

The following is the opinion and decision in the case third above entitled:

In this case, the claim of the plaintiff to recover the possession of land formerly embraced in the Bloomingdale-road, and between Minety-second and Hinety-third streets, in the city of Hew York, depends -upon the construction to be-given to the descriptive words in two grants of lapd; one-made by Charles Apthorp and others to Oliver Vanderbilt, in 1799, and the other made by the1 same grantors to William and Mary Jauncey in 1800.

In the deed to Vanderbilt, the description is as follows, viz. r “ Beginning at a corner on the westerly side of the Bloomingdale road at the northern side of the private road leading fc>Hudson’s river, and running thence along the west side of Bloomingdale road - aforesaid north thirty-five degrees east three chains sixty links; thence along the same north thirty-two degrees east, five chains forty-two links to a-lane on the-south side of Mr. Clarkson’s land; thence north -thirty-five degrees west twenty-three chains forty links to the Hudson’s-

In the Jaunceys’ deed, the description is as follows, viz.: “ Beginning at the corner of a field at the junction of the Bloomingdale road with a cross-road that leads to Harlem, thence running along the Bloomingdale road south thirty-five, degrees west seven chains fifty links; thence south thirty-seven degrees west ten chains thirty-two links ; thence south fifty-four degrees east along William Constable’s and Bobert L. Bowne’s land nineteen chains eighteen links; thence north fifty-four degrees east nine chains fifty-five links; thence south fifty-three degrees east three chains seventeen links; thence north thirty-six degrees east eight chains ninety-two links; thence north fifty-three degrees west twenty-six chains to the beginning, containing forty-two acres and five perches, according to a map made by Benjamin Taylor, one of the city surveyors of the city and county of Hew York, and hereto annexed, and also,”- etc.

Unquestionably, in the Vanderbilt deed the terms of the description are sufficiently explicit to exclude the roadbed from the grant. As to the Jaunceys’ deed, what we have said in Holloway v. Delano (Action No. 1) applies here ; inasmuch as the starting point is similarly described.

For the reasons expressed in the case of this same plaintiff against Southmayd and others, the order appealed from should be affirmed and, under the stipulation, judgment absolute should be ordered against the appellant, with costs.

All concur, except Earl, Finch and O’Brien, JJ., dissenting.

Order affirmed, and judgment accordingly.