Hoagland v. Graham — 45 N.Y. St. Rep. 27

Majority

p. 27

George W. Hoagland, App’lt, v. Martin D. Graham, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

-Streets—Obstruction—Dedication.

The owner of land had the same mapped and designated thereon a street, and sold two lots to defendant’s grantor, describing them as running to and along said street. Subsequently the city laid out a street in the street so designated, but which crossed its lines and took a part of defendant’s lot. The then owner of the remaining frontage received the damages, and with defendant removed the fences. Held, that the original street was thereby revoked, and that a subsequent grantee of lots bounded on the new street could not maintain an action to compel the removal of a barn built by defendant on the rear of his lot which projected beyond the line of the original street but not beyond the new street line.

Appeal from judgment in favor of defendant.

Action to compel the removal by defendant of an alleged obstruction from the street, which consisted of a barn and fence. -Defendant denied that the barn or fence was in the street.

C. M CuddebacJc, for app’lt; Lewis M Carr, for resp’t.

In 1853 one Gardner Forgerson made and .filed a map of some sixteen acres of his land in Tort Jervis. This map set apart streets and numbered lots upon them. One of these streets was designated Seward avenue. One lot was sold on this avenue by Forgerson in 1854 to, one Hoagland, who is defendant’s grantor, by deed made in 1869.

The street (Seward avenue) never became a public street of the village of Port Jervis. The village authorities m 1871 laid out a public street nearly parallel to Seward avenue, but so far from being actually parallel that the public street went diagonally across Seward avenue and took part of the defendant’s lot. The entire front of the Seward avenue upon the map was then owned by a Mrs. Fish, who is the grantor of the plaintiff. When the public street was laid out, defendant and Mrs. Fish removed the old fence along Seward avenue and built one along the new street. Mrs. Fish recovered damages for the taking of her land for the public highway. The defendant also built a barn, which is upon the old Seward avenue of the map but is not upon the public street. This was the condition of things when the plaintiff took his deed in 1883. His lot is bounded “ along the side, of said Prospect avenue,” which was the name then . given to the public street. The plaintiff has no right of action in respect to-the bam. He is bounded on the new street, which had then been fenced for many years. The deed from Forgerson to Hoagland conveyed to and along Seward avenue, and thus the defendant obtained half of Seward avenue. Matter of Ladue, 118 N.Y., 213 28 St. Rep., 821 .

The original Seward avenue was revoked by the act of the only owner of the land when the new public avenue was laid out. Bridges v. Wychoff, 67 N. Y., 130 .

The plaintiff-has access to the new street, and such access was-all that was designed by the map making Seward avenue the-means of access in front of plaintiff’s land.

An entirely insufficient case is made for a court of equity to-open Seward avenue in addition to the new street, which will thereby become an open space (not a public street) alongside of.' the new street, which is public.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.