Ocean Pier & Navigation Co. v. Woolsey

Headnote

Covenants—Bbeacii of—Obstruction of way.

The plaintiff company owning a pier on which passengers were landed, purchased certain land from defendant in front of the pier. As a consideration of such purchase, and of the enormous price paid, it was agreed and covenanted in the deed of conveyance that- a road or way thirty feet wide for pedestrians should be forever maintained through the land conveyed, and also through the land retained by defendant. Held, that certain booths, sheds and posts and fences erected by defendant extending out into the road four or five feet constituted a violation of defendant’s covenant, and that a balcony overhanging the road maintained by plaintiff was not a violation of the latter’s covenant, so as to prevent him from maintaining an action for the obstruction mentioned by defendant.

Action of specific performance requiring defendant to remove all structures and obstructions from a certain road or way, and to make the same a free and open road or way in pursuance of an alleged agreement contained in a deed.

The town of Gravesend owned a parallelogram of land at Coney Island, 150 feet front on the ocean, and running back to Surf avenue, which runs parallel with the ocean about 350 north of it.

In April, 1885, the town conveyed this plot to the defendant and one Skinner (predecessor of plaintiff Skinner), and thereupon they conveyed all of it to the plaintiff company, excepting the front on Surf avenue to the depth of 100 feet, which they reserved and divided equally between themselves, the defendant taking the east half. The plaintiff thus purchased all of the said plot from the ocean up to a line drawn parallel to Surf avenue 100 feet south thereof.

The plaintiff company had a large iron pier extending from this upland out into the ocean about 1,200 feet, which it had built while a lessee of the town. It was therefore obliged

to buy the upland so conveyed by the town to defendant and said Skinner, or lose its pier. Furthermore, while lessee of the land it had a road or way running from Surf avenue down through the center of the said parallellogram of land to its pier, thus making an entrance to and outlet from its pier, with desirable property for tenants on either side of it.

As a consideration. of such purchase by it of the defendant and Skinner, and of the enormous price which they found themselves in a position to exact, it was agreed and covenanted in the deed of conveyance itself, that a road or way thirty feet wide for pedestrians should be forever maintained through the center of said parallellogram from the said pier to the said Surf avenue.

Both plaintiff and defendant had places of business fronting on such road, and the defendant maintained certain buildings, posts and fences extending out into the road four or five feet, one post being in the center of the road, and a clothes line, with clothes thereon, was extended from defendant’s land to such post. A balcony overhanging the' roadway was maintained by the plaintiff.

Judgment was rendered for the plaintiff, and defendant appeals.