Watson v. City of New York

67 A.D. 573

Opinions

Hatch, J.:

It is evident that the rights of' the parties in the present action are to be determined by a construction of the deed from Gouverneur Morris to John Rushby in 1848, in connection with, the map filed at the time when the deed was executed and the - circumstances surrounding the transaction. This deed bounds these premises along the lines of the respective streets by giving distances surrounding the property conveyed. It has been assumed for- many years-to be settled law that such a description bounding upon a,street or highway laid out upon a map carried with it title to the land to the center of the street. The reason for such rule was found in the fact that ordinarily, in conveyances of such a character, no purpose would be served by reserving to the grantor the title embraced within the street opposite to the premises conveyed, as it wduld not be available for any purpose of use independent of an easement for passage by the public; and for this, among other reasons, a presumption was indulged that the conveyance carried title to the center of the street, even though such part was not contained within the metes and bounds of the conveyance. (White's Bank of Buffalo v. Nichols, 64 N. Y. 65.) In all cases, however, the question as to. whether the. title to the street passes is one of intent of the parties to the conveyance. It was said in the case above cited, “ Whether a grant of lands bounded by a street, highway or running stream extends to the center of such street, highway or stream, or is limited to the exterior line or margin of the same, depends apon the intent of the parties to the grant as manifested by its terms, so that the question as to the true boundary is, in all cases, one of interpretation of the deed or grant.” In the above case the description was stated as beginning in the northwesterly line of the street, intersecting the northeasterly line of another street as the same appeared upon a map laying out the streets and filed prior to the execution of the conveyance. It was held that the true interpretation of the deed carried title only to the exterior line of the street and did not embrace any part of it.

In Mott v. Mott (68 N. Y. 246) the rule of the above case was reaffirmed. It was there said that “ An intent to exclude the highway or bed of the stream will not be presumed, but must appear from the terms of the deed as interpreted and illustrated by surrounding circumstances.” And further, “ It depends upon the intent of the parties to be gathered from the description of the premises read in connection with the other parts of the deed, and by reference to the situation of the lands and the condition and relation -of the parties to those and other lands in the vicinity, whether the grant extends to the center of the road or stream. This is the recognized rule of interpretation, and it is a question of interpreta^ tion and intent.” In that case the subject-matter presented was whether a conveyance adjoining a lane was held to be included within a description bounding thereon, and also whether a certain •other private road, upon which other lands involved in the action were bounded, conveyed to the center of the same; and it was held that, as the lane was a private way of which use could be made by the grantor, the rule was different as applicable to a public street, and an intent was deduced from the instrument and surrounding ■circumstances to exclude it from the operation of the grant. As to "the. highway, the deed, although bounding thereon, assumed to reserve an easement in the roadway to the grantee in the deed, and it was held that reserving such rights evidenced an intent on the part of the grantor to retain title to the road, subject to an easement of the grantee therein.

The question again arose in Muldoon v. Deline (135 N. Y. 150). In that case parol evidence was offered of conversations.and negotiations between the parties, together with other circumstances, for. the purpose of showing that it was not the intention of the parties to-include the land .embraced within the deed. The court held that, as. there was no ambiguity in the description and the land could be exactly located by the terms expressed in the deed, there was no-ambiguity in the conveyance, and that parol evidence was inadmissible for the purpose of showing the intent of the parties. The court said: “ When the description is applied to the land, no ambiguity is produced, and hence' there is no room for parole evidence. It is true that the intent' of the parties to the deed must control. But that intent must be ascertained from the language contained! in the deed.” And it was further held that parol evidence could!, only be given where there was an ambiguity appearing upon the: face of the deed.

We think it has been generally understood that these and other authorities bearing upon this question had established the rule that, in a conveyance which bounded by, upon or along a highway or stream, or where other equivalent phrases were used, it evidenced, an intent from which was raised the presumption that the grant extended to the center of the highway or stream, and that in the; absence of other language contained in the deed qualifying or limiting it, such presumption became conclusive and precluded ant inquiry by evidence aliunde of the conveyance for the purpose of; showing a different intention.

This rule seems, however, to have received recent modification. In Graham v. Stern (168 N. Y. 517) the question arose respecting the grant of lands- bounded by and upon a city street. The presumption that such a description would carry the title to tlie -center of the street was recognized as laid down in the authorities we have cited. But it was also held that, as the original grant came from the city at the time when the street was in existence, such presumption was offset by the fact that the city, was charged with the duty, to keep and maintain the street for the passage of the public, and! that such interest and duty was inconsistent with an intent to convey title thereto, and that, therefore, no title to the street passed to-the grantee in the.deed. The court in its opinion discussed the.rule of interpretation as applied to such grant under ordinary circumstances between individuals, saying: “ The general rule that a conveyance of land bounded by or upon a street carries the fee to the center of the street is founded upon a presumption. It is that, in ordinary cases, there is no reason for supposing an' intention in a grantor of lands to reserve the fee in a strip of a street, or highway, bounding them, when its control and use have ceased to be of importance or of benefit to him. (Haberman v. Baker, 128 N. Y. 253.) Such a presumption, necessarily, must give way before any evidence of a different intention in the parties. The presumption is not one juris et de jure and yields when the grounds upon which it rests are displaced by other evidence. (Dunham v. Williams, 37 N. Y. 251.) Whether a grant of lands shall be construed as extending to the center of the adjoining street is not decided always, by the mere presence of the words, which give rise to the ordinary presumption, but may be decided by the intention of the parties j as it may be gathered from the description, when read with reference to the situation of the lands and the relations of the parties to. them, and to the circumstances which enlighten their transaction.. (See Mott v. Mott, 68 N. Y. 246.) If the right to the land in the; boundary street is rested upon words which.operate by way of presumption and not by way of a precise description, there is no violation of the rules of law in showing by evidence what was intended as the boundary line of the grant. This is not a case of any mistake in the description; but one where the description is ambiguous in its application, and in such a case as that, the intention of the parties should and will control, and the ambiguity may be removed by the facts in evidence. (Muldoon v. Deline, 135 N. Y. 150.) ”

As we understand this statement of the law, it means to announce a rule that where the presumption of an intent to convey to the center of the street or stream is founded upon words, out of which the intent to convey to the center is presumed, as by, or upon, or along, or other equivalent phrases, it is not conclusive as such, but may be inquired into by any evidence, parol or otherwise, which tends to establish the existence of a different intent. In other words, it is no longer the rule that the intent is to be found in the language of the instrument associated with the circumstances and surroundings existing at the time of the grant, but any evidence competent as indicative of an intent to limit the operation of the grant may be proven. And such seems to be the construction placed by this case upon the authorities to which we have called attention. If our construction of the language of this case be correct, then we see no reason why the grant from Rushby to Schoepler in August, 1850, and the deed from Morris to the trustees of the town of Morrisania, in November, 1864, was not competent for the purpose of showing that the parties to the original deed understood — the grantee, by limiting his conveyance to the exterior line of the street when he conveyed, and the grantor by subsequently ’conveying the fee of the streets’— that no title to the land in the street passed by such deed, and that these acts evidenced an intention upon their part to exclude the fee of the street from the operation of the first deed. If a deed, whose words simply opérate by way of presumption to carry the title to the center of the street may be regarded as ambiguous in description, then clearly such rule is applicable to the ■deed now under consideration. Consequently, the evidence was sufficient from which the court could find that there existed an intention upon the part of the parties to the first deed to limit that grant to the land embraced within the specific metes and bounds, and it did not operate to extend the same to the center of the street, in consequence of which the plaintiff in this action acquired no title thereto.

Independently of the question as to whether our construction of the Graham case be correct or not, we think that sufficient appears in this deed, within the rule of all the authorities, to show an ambiguity in the description of the premises intended to be conveyed thereby. The courses and distances given in the deed corre spond with the measurement of lot 142 as laid out upon the map at the time when it was filed and the deed executed. The deed itself purports to convey an acre of land, more or less. The area of lot 142, excluding Spring place, is sixty square feet less than an acre; but including fifty feet of Spring place and' twenty-five feet of Franklin avenue, half its width, the area is one and one-half acres. The excess is, therefore, nearly fifty pér cent, and it is scarcely possible to ascribe an intent to convey fifty per cent more of land than the instrument expresses an intention to convey. Where a specific quantity of land is located by precise measurements, such measurements may be laid hold of as evidencing the intent of ■ the parties, and will be controlling of the center of the street as a monument, when .it appears that the quantity of the land within such boundary evidently answers to the intention of -the parties. (Higinbotham v. Stoddard, 72 N. Y. 94; Baldwin v. Brown, 16 id. 359; People ex rel. Burnham v. Jones, 112 id. 597.) The words “ more or less cannot be held to extend the operation of the grant over an area as great as appears in the present case, under the circumstances of the case, and where the conveyance fails to disclose an intent to increase the quantity above the amount specified. Such words are precautionary, intending to cover slight or unimportant inaccuracies and are not to be construed as extending beyond known monuments or specific measurements and boundaries. (Oakes v. De Lancey, 135 N. Y. 227.) '

If the deed to Rushby did not operate to convey title to the center of the street, then the deed from Morris to the trustees of Morrisania operated to convey a good title, as Morris was then possessed’ of it. Consequently, the narrowing of the street by municipal! authority did not cause the title to revert to the owners of lot 142,. as the owners of that lot never acquired title to it. It was still held; subject to the right of the city or the trustees therein, and could be-subsequently used for street purposes by the proper authorities. In any event, it is of no consequence to the plaintiff in the present action, for as against the city he has no title, right or interest, as none of his grantors ever had title to the twenty-foot strip in Spring place.

If these views be correct, it follows that the judgment should be affirmed, with costs.

Van Brunt, P, J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J., dissented.