Barrows v. Webster — 50 N.Y. St. Rep. 353

Majority

p. 353

David E. Barrows, Resp't, v. Henry Webster, App'lt.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

1. Ejectment—Description of land in deed.

In an action of ejectment, it appeared that both parties took their deeds from, the same grantor, and that their property adjoined; that by the description in plaintiff’s deed, the east line of his lot was the west line of Union street, which street is the principal one in the village, and its west line, as laid out in 1834, has continued as such ever since; but a map on file in the county clerk’s office, made in 1836, gives to Union street a width twenty-six feet greater than that of the street actually laid out, and plaintiff contended that the line so indicated is the east line of his lot, which would reduce the width of defendant’s lot. No evidence was given that such map was made for the owners, at the time, of the property delineated therein, or of use or acceptance of such line by the public. Held, that the reference in the plaintiff’s deed to the west line of Union street was to the west line as it had always actually been.

2. Same—Evidence—Maps.

In such case deeds, to which neither of the parties thereto was either party or privy, in which reference was made to the map made and filed in 1836, are improperly received in evidence.

Appeal from a judgment entered in Cattaraugus county, on the report of a referee.

J. H. Waring, for app’lt;

J. A. Corbin, for resp’t

The action was ejectment for a strip of land, seventy-five feet long and thirteen feet wide lying adjacent to the boundary line between the lots of the two parties in the village of Olean. The controversy is whether it lies on the one side or the other of that line.

Both parties took their deeds from the same grantors, the plaintiff in 1886 and the defendant in 1887. By the description in the plaintiff’s deed the east line of his lot is in the west line of Union street and his lot extends to the west, therefrom, 125 feet, and is seventy-five feet wide. The description in the defendant’s deed makes no reference to the plaintiff’s lot, but evidence aliunde shows that the defendant’s lot adjoins the plaintiff’s on the west and extends thence west to a fixed boundary; and it is described in the deed as fifty feet in width from east to west

Union street is the principal street in the village. It was laid out, opened and fenced, at least in part, on the west side, before 1834, and its west line as then practically located has continued to be its actual and ostensible west line until this time. But there is on file in the clerk’s office of Cattaraugus county a map of a portion of the village of Clean, which purports to have been made in 1836 by one T. J. Grosseline, civil engineer, which gives to Union street a width twenty-six feet greater than that of the street actually laid out, opened and in use at that time and ever since.

p. 354

This additional width seems to have been disposed in equal parts on the two sides of the street, so that the map indicated a west line for the street thirteen feet further west than the actual west line; and the contention of the plaintiff, which gives rise to the controversy in this action, is that the line so indicated is the east line of his lot. This would carry his west line 138 feet from the actual line of the street and thirteen feet on to the lot conveyed to the defendant by the common grantors; would reduce the width of the defendant’s lot from fifty to thirty-seven feet, and would entitle the plaintiff to the judgment from which this appeal is taken.

But we find no reasonable foundation in the case for such a contention. There is no evidence that Grosseline made the map for the owners, at the time, of the property delineated therein. If it was so made, it established no lines by dedication to the public use until such dedication was accepted by the public, which was never done. Badeau v. Mead, 14 Barb., 329 -340; Fonda v. Borst, 2 Keyes, 48; Holdane v. Trustees of Cold Spring, 21 N. Y., 474 . The proposed west line of the street laid down on the Grosseline map, therefore, was never the west line of Union street; and there was never any other west line, except the line which bounded on the west the street actually laid out and used for more than fifty years.

There were received in evidence on the trial several deeds, to which neither of the parties hereto was either party or privy, in which reference is made, in various connections, to the Grosseline map. We think the defendant’s objection to the evidence was well taken and should have been sustained; but being in evidence the deeds establish nothing against the defendant nor in favor of the plaintiff. There was no reference in his deed to the Grosseline map, nor is there anything in the case to rebut the presumption that the deed to the plaintiff was made upon actual view of the premises conveyed, and with reference to the lines and monuments then actually and ostensibly present. Van Wyck v. Wright, 18 Wend., 157 , 165; Wendell v. The People, 8 id., 183, 190 ; Raynor v. Timerson, 46 Barb. 518 , 524; White's Bank v. Nichols, 64 N. Y., 65 , 71.

There can be no doubt, we think, that the reference in the plaintiff’s deed to the west line of Union street, was to the west line of the street as it stood, and had stood, for fifty years; that such actual and ostensible west line was by such reference made a monument, which fixed the east line of the lot granted to the plaintiff, and by consequence determines the location of his west line on the east side of the strip of' land in question.

The judgment should be reversed.

Judgment appealed from reversed and a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.

Cases cited

Raynor v. Timerson 46 Barb. 518 N.Y. Sup. Ct. 1866-09-03 at 524 p. 354