Ludlow v. Gierhon — 6 N.Y.S. 121

Majority

p. 121

Ludlow et al. v. Gierhon.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

Easement—Grant—Extent oe Right.

Plaintiffs granted an easement to the city of Yonkers, to construct a sewer on land held by them, with the additional privilege “of temporarily using the adjoining dock surface owned by the parties of the first part for the deposit of materials during the construction of such public sewer. ” It was also provided that the exclusive use to which “ the above-described premises ” shall be applied shall be the construction, etc., of a public sewer, and whatever shall be incident thereto. Held, that the “adjoining dock surface” was part of the premises subject to the grant.

Appeal from city court of Yonkers.

Action by Thomas W. Ludlow and Jacob F. Miller, as executors and trustees under the will of Thomas W. Ludlow, Jr., deceased, against John D. Gierhon, for trespass in placing materials used in the construction of a sewer on plaintiffs’ dock surface. Judgment was entered for defendant, and plaintiffs appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Wm. Warburton Scrugham, for appellants. Joseph F. Daly, for respondent.

We think this judgment should be affirmed, for reasons appearing in the charge of the learned trial judge to the jury. There was evidence tending to show that plaintiffs, or one of them, consented to the use of their land for temporary deposit of material excavated in constructing the sewer. True, there was some evidence tending to show that that consent was withdrawn, but the case was not so clearly with plaintiffs on this point as to justify the direction of a verdict in their favor. But there is, in our opinion, a deeper difficulty with the plaintiffs’ case. Defendant had contracted with the city of Yonkers to construct a certain sewer upon land owned by plaintiffs, they having granted an easement therein to the city for that purpose. The sewer itself was to be constructed within a certain strip, which is particularly described. But the grant contains this additional privilege: “And also the right of temporarily using the adjoining dock surface owned by the parties of the first part for the deposit of materials during the construction of such public sewer.” Then follows a further provision that “the exclusive use or purpose to which the above-described premises shall be applied by the party of the second part •* * * shall be the construction, maintenance, and use of public sewer therein, and whatever shall be incident thereto, as aforesaid.” The “above-described premises” do not consist of that strip alone. That strip was for the sewer itself. The other part of the grant—the right to the temporary use of the adjoining dock surface—was a.part of the premises or subject-matter of the grant; and for aught that we can see the city had quite as perfect a right to the exclusive temporary use of that adjoining dock surface for reasonable deposit of materials in the construction and maintenance of the

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sewer as ifc had to the exclusive permanent use of the strip for the sewer itself. That use was an incident in the construction and maintenance of the sewer. Hence, as the learned trial judge put it to the jury, the question was the reasonableness of the defendant’s act as the instrument of the city in using this dock surface for deposit of materials. That was plainly a question of fact for the jury, arising on a conflict of evidence. The verdict is therefore conclusive on that issue. The judgment must be affirmed, with costs.