Perrin v. New York Central R. R.

The entire and exclusive appropriation by the Defendant of the premises in controversy, laid down on the map and there denominated “ Park,” was sufficient as a disseizin to entitle the Plaintiff to recover in this action ( 16 N. Y. 97 ; 24 N. Y. 655 ; ibid. 658 ; 25 N. Y. 526 ). The question here is whether the Plaintiff, in conveying the nine lots which abutted on the strip called “ Park,” by numbers, referring to the map, passed the fee in this strip to the grantees, in the same manner and to the same extent as if the strip of land had been dedicated by him as a street for the use of the adjoining lots. Had the strip been designated “ Street ” on the Plaintiff’s map, instead of “ Park,” the case would be precisely that of Bissell v. The New York Central R. R. Co. ( 23 N. Y. 61 ), where it was held that as between grantor and grantee, the conveyance of a lot bounded upon a street in a city, carries the land to the centre of the street. This, too, was like the present case, where the strip sought to be recovered was open upon a public street at one end only, and the conveyances of the adjoining lots were by numbers referring to the map, without any mention of a particular reference to the street by name.

In the case cited, this Court held that Mumford (under whom Bissell claimed title), by his conveyances of the lots abutting on the strip designated “ Street ” on the map, passed the fee therein to his grantees; consequently, that Bissell could not recover against the Defendant, who had become sole owner of all the adjoining lots.

As has been already suggested, the only difference between the case cited and the one under consideration is, that in the former the strip of land sought to be recovered was designated “ Street” on the map, and in the latter it was designated “ Park.” In fact,

So it was reasoned that it was intended as a street because so designated on the map, and was intended as a means of access from the public highway to the lots abutting on it, which had no other common approach, public or private, and that it materially enhanced their value. It was therefore decided that such strip was intended as á street for their exclusive use and enjoyment, so far as the grantees of the adjoining lots were concerned, and that, when the title to all the lots centred in one person, he was entitled to its exclusive possession against any claim the grantor could urge by way óf action in ejectment'. Let us now apply the reasoning adopted in that case, and which it seems was satisfactory to every member of the court who took part in its decision, to the one in hand.

The Plaintiff, with a view to place his lands advantageously and profitably in market, caused them to be mapped, laid off in lots, and the lots to be numbered. He left on the map a narrow strip, forty-three feét in width, opening at one end into the public street, and extending into the plat one hundred and ninety feet. On this he located nine lots, seven of which had no other access to the public street. Without the advantages afforded by such passageway, those seven lots would be comparatively valueless.

There was no indication on the map,on the ground, or in the deeds of the adjoining lots afterward executed, of an intention to leave this strip of land open and vacant for ornament. On the contrary, the inference must be directly the reverse, for its form and location rendered it inappropriate for that purpose; while it was needed and became useful and valuable as a means of access to the lots in

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rear of those fronting on public streets.

It is beyond controversy that this strip of land was to be left

It cannot be denied that it was to be used as a passageway or street. This became a necessity from the location of the lots abutting upon it. This necessity rendered it inappropriate as a park ; nor does it assume the strict definition of park, as platted on the map. A park is in its strict sense a piece of ground enclosed for purposes of pleasure, exercise, amusement, or ornament.

This strip of land was unenclosed, open to the common, and was intended so to remain. Uor was it set apart either for pleasure-ground, or for purposes of exercise, ornament, or decoration.

Its shape and situation w'as unsuitable for either purpose. It was opened for use, and use alone, and that was as a passageway or street.

This was its primary and chief design, and, so far as the case

The judgment of the General Term and of the Special Term should be reversed, and a new trial ordered, with costs to abide the event.

All concur except Hunt and Scbugham, JJ., who dissent.

Reversed.