Smith v. Smith

120 A.D. 278, 104 N.Y.S. 1106, 1907 N.Y. App. Div. LEXIS 1160

Opinions

Scott, J.:

In this action tbe plaintiff seeks to enforce private easements of light, air and .access over lands belonging to defendant immediately in front of and abutting upon lands belonging to plaintiff, and from a judgment dismissing his complaint upon the merits the plaintiff appeals. The plaintiff owns'. four - lots of land, in tbe city-" of New York, which taken together contain one hundred feet on One Hundred and Third street-, extending hack one hundred feet nine inches .to the middle of the block, between One Hundred and Third and One Hundred- and Fourth streets, and bounded on the east by a line which once constituted the westerly line of Avenue A, as projected on the official city map. The defendant owns the land lying directly to the east of plaintiff’s property, her land being what formerly constituted the westerly half of -the bed of Avenue A, as shown on said official map..

It is not disputed that Avenue A was laid out as a street in 1807 by commissioners appointed under an act of the Legislature.

* In 18A1 a private owners’ map was made by Francis Nicholson, city surveyor, and filed with the land records of the city of New York. This map.corresponds as to streets and avenues with the official city map above mentioned, and on both maps the property now owned by plaintiff is shown as bounded on its easterly side by the property designated as Avenue A, now owned by defendant. The common source of title was one James S. L. Cummins, who owned both parcels of land in 1869. He derived his title by a series of con-' veyances from one Andrew McGowan, who conveyed the property (with numerous other lots) by a description which referred to the Nicholson map, giving the- map numbers of the lots as shown on said map, and bounding the lots by the streets and avenues shown, on that map (including Avenue A). The deed from McGowan, as, well as those which followed it, to aud .including the deed to Cummins embraced “ all of the right, title and interest of the parties of the first part in all the undivided half part of all the Streets and Avenues in front of and adjoining the premises above described,” and in all of the said deeds, except the one to Cummins, the words of grant were followed by the qualification “ subject to the use of the lands laid down on said'map as public streets and avenues by all the owners of the lots laid down'on said map, and by the public generally as public streets and avenues according to said map.” It appears to be quite clear that plaintiff "can base no claim against defendánt by reason of thff limitations above quoted. (Wheeler v. Clark, 58 N. Y. 267.) The effect of the conveyance to Cummins was that he acquired title both to the lots now owned by plaintiff and to the westerly part of Avenue A, and as between these two' properties he could create easements-over one. part for the benefit of the other or not as he chose. The description of the property conveyed , in his immediate deed, and in those which preceded it in the chain-of title, imported notice to him, however, that ' the streets, and avenues by which the lots were bounded were intended to be used at some .time as public streets. The plaintiff’s rights, if any, must rest "upon the conveyance by which Cummins disposed of the property. In 186ff Cummins executed a mortgage to the Equitable1 Life Assurance Society of twelve lots (including those now owned by plaintiff) in which he bounded them on the easterly side by the westerly side of Avenue A.- He thus retained in himself the fee title of the westerly half of "the roadbed of Avenue1 A, and the sole question in the case is whether he incumbered that fee with' private easements of light, air and access in" favor of the lots specifically covered by the mortgage, and which-abutted upon the avenue. This mortgage was afterwards foreclosed and since the referee’s deed relates back to the mortgage and conveys .all the title that the ■ mortgagor, had, we may most conveniently treat the mortgage as ,a deed of conveyance by Cummins. The case presented, therefore,, is that Cummins owning both -the lots, -abutting upon a proposed street and the bed of. the street, conveys the lots by a- description bounding them by the avenue, describing it as'Avenue A. I do not understand .that it is proposed at this late day to. question the. rule, firmly established by a multitude of authorities and succinctly stated in Lord v. Atkinns (138 N. Y. 184) as follows: “When the owner of land lays it out into .distinct lots ’with intersecting streets or avénties,- and sells the lots with refer- ; ence to such streets, -his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open, When in such a case a lot is sold bounded by á street, the purchaser and his grantees have an elasement in the street for the purposes of access, ■ which is a property, right.” And the same.i-esult follows where the streets -and avenues have Been laid out on a public or official map adopted by the parties as defining the limits and location of the property conveyed. - (Matter of Eleventh Ave., 81 N. Y. 436; Matter of Village of Olean v. Steyner, 135 id. 341, 345; Kerrigan v. Backus, 69 App; Div. 329; White's Bank of Buffalo v. Nichols, 64 N. Y. 73.) The easement thus impliedly granted is quite distinct, from any public right to usé the streets and avenues, and is a property right of which the owner cannot be deprived except by' condenanation or purchase. It is suggested, however, that the rule of law above quoted has no application to the present case because Cummins in his mortgage naade.no reference to any map or plan on which Avenue A was laid down. This, as I consider, is of no importance. Cummins was bound to know his own title, and so knowing it, he must have known that the several conveyances through which he derived title had expressly referred to the ¡Nicholson map. Furthermore, there was in existence at the dime the mortgage was made" the official map showing Avenue A laid out precisely as it was laid out on the ¡Nicholson map. When Cummins described the lots covered by his mortgage as running “ along the westerly side of Avenue A,” he must, of necessity, have intended Avenue A as. laid down on the ¡Nicholson map or the official map, for it was only on these maps (and the tax map) that Avenue A had at that time any existence. Under the circumstances existing at the time of .the mortgage, the mention of Avenue A as a boundary must be deemed to have the same effect, so far as the grant of an easement is concerned, as if the map showing that avenue had been expressly referred to.

Much reliance is placed by the respondent upon Matter of Brook Avenue (40 App. Div. 519; affd. on opinion below, 161 N. Y. 622). While there are undoubtedly expressions in that opinion which, read alone, would seem to favor the respondent’s contention, the question herein presented was not involved, and consequently was not intended tó be decided. The controversy there was over the payment of an award for opening the aveniie; and all that was decided was that the owner of the abutting lots was entitled to no part of the award, because by the opening of the avenue he received all that his deed entitled him to, that is, that the avenue should be opened and kept open as a public street; in . this regard following Matter of One Hundred & Sixteenth Street (1 App. Div. 439) and City of Buffalo v. Pratt (131 N. Y. 293).

Other casps are cited to us as tending in one way or another to qualify or limit the general rule upon which the plaintiff’s case re ts. It is Unnecessary to discuss or distinguish them at length, as that has already been done by the Court of Appeals in Holloway v. Southmayd (139 N. Y. 390). It appears in this case that Avenue A was never opened 0r worked as a public street; and that after the making of the Cummins mortgage, and before its foreclosure, the Legislature by an act.(Laws of 1875, chap. 494) altered the map of the city by striking therefrom Avenue A at this point. This, as I consider, had no effect upon- the plaintiff’s claim to enforce the private easement.such as was included in and covered by the mortgage. Such an easement, as has frequently been held, is property; and is,' by its very nature, as indestructible by the acts of the public authorities or of the grantors of the. premises.as is the estate which is the' subject of the grant and to which the easement is appurtenant. (Holloway v. Southmayd, supra, 402.) The often cited case of Whites Bank of Buffalo v. Nichols (64 N. Y. 65) is closely in point. In that case the defendant had acquired a private easement over Garden street, as laid out on a certain map, because the. conveyance undef-which he held had bounded his lot by the street, then only shown on a map, but not opened or even staked out. Thereafter the street was narrowed by municipal authority, leaving a strip of land between defendant’s property, as described in his deed with reference to the original line of the street, and the line of the street as narrowed and actually acquired and opened. The Court' of Appeals held that while the fee title to this strip remained in the original grantors or their successors, yet that the defendant’s private easement in and over it remained unimpaired by reason of the refusal of the public authorities to open it as a public street to its full original width, saying: “ When land is granted bounded on a street or highway, there is an implied' covenant that there is such a way, that so far as the grantee is concerned it shall be continued, and that the grantee, his heirs and assigns shall have the benefit of it.” And again, “Neither the corporation of the cityj or the State authorities, or the grantor can do any act to impair this right or restrict the grantees in the enjoyment of it.”

Upon the undisputed facts the plaintiff was entitled to relief, and the judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the. event.-

Patterson, P. J., and Laughlin, J., concurred; McLaughlin ‘ and Houghton, LL, dissented.

See Laws of 18071 chap. 115.— [Rep.