Lewisohn v. Lansing Co.

The plaintiff, owner in fee of a plot of land abutting upon the northerly side of 157th street, between Broadway and the Boulevard Lafayette, in the city of New York, claims, and by this action seeks to enforce, easements of light, air, and access over the land in front of his property, constituting a part of 157th street as the same is shown on the official city map, although the street at this point has •never been formally opened or acquired by the city. From a judgment dismissing his complaint upon the merits, the plaintiff appeals.

The defendant is the owner in fee of the bed of the street in front ■of plaintiff’s property, and, claiming to hold it free from any easement in favor of plaintiff’s property, has inclosed it with a fence and erected a building thereon. It is not to be disputed that, if plaintiff is entitled to the easements he claims, the structures erected by defendant are violative thereof. The property involved in this litigation, as well as that now owned by defendant, constituted part of a large tract owned at ■one time by Samuel Watkins, who on August 16, 1843, conveyed a tract including the southerly half of 157th street to Victor G. Audubon, and on November 15th of the same year conveyed another tract, including the premises now owned by plaintiff and the northerly half of 157th street, to Matthew Morgan. Up to this time no streets had been ■opened, and no official map had been filed laying out the city above 155th street, which was the northernmost transverse street shown on "the map of 1807. The territory north of that street was wild woodlands, except so much thereof as was occupied by the residence of John J. Audubon and a serpentine road which led up to his house. The deed to Victor G. Audubon conveyed a tract of land extending to and bounded on the north by the center line of 157th street. It is to be noted that although this deed mentions 156th and 157th streets, and uses their •center line as boundaries, it does not refer to any map or plan on which these streets were shown, nor was any such map -or plan then on record. There was such a map, however, attached to 'the deed from Watkins to Morgan, dated November 15, 1843, upon which the streets from 156th to 160th streets, inclusive, are shown, and by express reference to which that deed was made. Whether or not Watkins and Audubon had this map in mind when the deed between them was made does not appear; but it is conceded that that map correctly shows the locus in quo at that time, and the lines of 157th street as shown on that map coincide with the lines of that street as now laid •out on the official map. By these deeds, therefore, Audubon became the owner in fee of the southerly half of the street, and Morgan became the owner in fee of the northerly half; the center line of the street constituting the dividing line between their properties. At about this time or shortly thereafter a fence was erected along the center line, and it or its substitute was maintained until 1893; the half of 157th street lying south of the fence being used and occupied as a part

As to the southerly half the plaintiff relies upon the familiar and well-established rule that a description bounding property upon a street or avenue, or referring to a map upon which the street or avenue is delineated, amounts, as between the grantor and grantee, to a dedication by the grantor of the bed of the street or avenue for a street, if owned by him, and confers upon the grantee the right to use it, and perpetual easements of light, air, and access over it, whether any portion of the bed of the street or avenue be conveyed to him, or whether the fee of the whole of it be reserved by the grantor. Hence it is argued that Audubon acquired, through his deed from Watkins, not only the fee to the southerly half of the street, but also perpetual easements of light, air, and access over the northerly half, which was reserved by the grantor, and, conversely, that so much of the bed of 157th street as was in terms conveyed to Audubon by the deed from Watkins was held by him subject to a like easement in favor of the land reserved by the grantor. There can be no doubt that the rules of law upon which this argument is based are generally applicable where lots are bounded upon a street, or described by reference to a map upon which streets are shown. But these rules are rules of presumption, and rest upon an implied grant or reservation of easements for street purposes, and the presumption and implication vanish when the deed itself indicates a contrary intention upon the part of the parties to it. This very question came before this court recently, upon a state of facts strikingly similar to those in the present case, in the Matter of West 214th Street, 109 App. Div. 575 , 96 N. Y. Supp. 557 . That case related to property embraced in the Dyckman estate, of which a map had been made and filed showing the proposed streets and avenues. In 1860 John H.

“No easement was expressly reserved, andi if one was reserved it must be by implication. There was conveyed an estate in fee simple in and to the property conveyed, which included one-half of the street. The express terms of these conveyances are inconsistent with an intention that the street should remain open, either as a public street or for the use of the owners of the other lots. That each grantee of a lot or lots to whom was conveyed the absolute unincumbered fee of one-half the street became the owner of that property free from any easement in favor of the grantees of adjoining lots upon the street seems to me to follow from the express language used in the deeds, where there is no easement of any kind reserved to each grantee.”

This language, applied to similar facts, states the rule to be applied in the present case, and seems to be a complete answer to the plaintiff’s claim that the deed to Audubon of the southerly half of 157th street contained an implied reservation of easements for light, air, and access in favor of the property retained by Watkins. Even if there had been such an implied reservation, we are of opinion that the easements became extinguished by adverse possession. As soon as Audubon acquired the property, he inclosed' so much of the street as was covered by his deed with a fence, and he and his successors in title not only kept it so inclosed continuously for some 50 years, but during that time used it in a manner to preclude any idea that he held it for street purposes. Thus he had an absolute deed without any express reservations, and openly and notoriously occupied the bed of the street south of the center line for purposes entirely inconsistent with its use as a street. As to so much of 157th street as lies south of the center line, the judgment in defendant’s favor is right.

So far as concerns the northerly half of the street, other considerations are presented. Matthew Morgan, Watkins’ grantee, in 1850 conveyed a plot to Dennis Harris, bounding it in part by the center line of 157th street, thus investing Harris with the title in fee to the northerly half of the street. In 1853 Harris conveyed a portion of the property to his son-in-law, John Dailey, by a description which bounded the plot conveyed by the northerly side of 157th street. Dailey, claiming that this deed conveyed to him the half of the street directly in front of his lot, as well as the land within the boundaries expressed in the deed, proceeded to take possession of and occupy the northerly half of the street. In November, 1868, Harris’ widow and devisee conveyed to George Blake Grinnell the northerly half of the street, then actually occupied under a claim of title by Dailey. The plaintiff’s title comes through Dailey; the defendant’s, through Grinnell.

It is a familiar rule, supported by ample authority, that a grantor who sells lots and describes them as bounded by a street running through his own land, without including in the conveyance the bed of the street, creates a private easement for street purposes, in favor of his grantee, over the land laid out or designated as a street, and of which he retains the fee. Harris made a number of conveyances, similar, as to the manner of describing the land, to the conveyances to Dailey, in all of which he bounded the lots by the projected streets and avenues. As to these the Court of Appeals held that Harris had conveyed to his grantees private easements for street purposes of air, light, and access over the land within the lines of the projected streets, of which he retained the fee in himself. Matter of Eleventh Ave., 81 N. Y. 436 . This case is a controlling authority for the proposition that, by his deed to Dailey of the property now owned by the plaintiff, Harris granted an easement for street purposes, in favor of the lot conveyed, over the northerly half of 157th street, then owned by him and of which he retained the title. These easements became appurtenant to the land conveyed to Dailey, and followed it into plaintiff’s ownership, unless they were in some way extinguished.

It cannot be successfully maintained that Dal’ey, by claiming an absolute title in the bed of the street, abandoned his claim to an easement therein. White’s Bank v. Nichols, 64 N. Y. 65 ; Matter of Board of Education, 24 App. Div. 117 , 48 N. Y. Supp. 1061 . Nor is there

Our conclusion is that as to the northerly half of 157th street in front of plaintiff’s premises he is entitled to easements of air, light, and access, and that to this extent he is entitled to relief as prayed in the complaint.

The judgment will therefore be reversed, and a new trial granted, but without costs in this court. All concur.