McLaughlin, J.-:
■ On the 7th of April, 1869, the mayor, aldermen and commonalty of the city of New York conveyéd to one John L. Brown certain real estate in such city, mostly under water, between Ninetieth and Ninety-first streets, and the sanie has since, by mesne conveyances, been acquired by the plaintiffs. The defendant haying asserted a. claim thereto, or to some portion thereof, this action was brought under sections 1638 to 1650, inclusive, of the Code of' Civil Procedure to determine the title. The land conveyed is adjacent to' and bounded on the east by the East river, and the portion to which; defendant has asserted a claim of title .is bounded northerly by the southerly line of East Ninety-first street as extended to "the bulkhead line as established by chapter 763 of the Laws of 1857; easterly by the said bulkhead line ; southerly by the northerly side of East. Ninetieth street as extended to said bulkhead line, and westerly by a line drawn parallel with, and- distant seventy feet westerly from said bulkhead line. Its claim of title is based upon the following clause which appears in its deed, of conveyance'to Brown“ Saving and reserving out of the hereby granted premises so much thereof as may form part of any street or streets, avenue Or avenues, road or roads, bridge or bridges, that may now or hereafter be assigned, designated or laid out through said premises'according to law for the uses and purposes of public streets, avenues and . highways as- hereinafter mentioned or which are now in use as such.” Annexed to and made a part of the deed is- a map upon which appears a street, seventy feet in width, which extends across the whole width of the lot on the easterly portion thereof and is designated thereon as Exterior street. The trial court held, under the clause of the deed above quoted and the map taken- in connection therewith,.that the defendant excepted from the land, conveyed to Brown the title -to- such portion as lies within the boundaries of-Exterior street,, and gave judgment accordingly, from which plaintiffs, .have appealed..
Upon; the argument of the appeal the respondent challenged the; right of the appellants to maintain the action at all, inasmuch as .it-' [471]*471■did not appeal’ that at the time it was commenced the plaintiffs were in actual possession of the premises referred to. It is-not necessary, to maintain an action of this character under section 1638 ■of the Code of Civil Procedure, that the plaintiffs at the time of its' commencement should be in actual possession. If they have the legal title this is sufficient. (Gage v. Kaufman, 133 U. S. 471.) Possession is presumed to follow the legal title, and where the land is unoccupied, an allegation in the complaint and proof upon the trial that plaintiffs have the legal title is a sufficient allegation and proof of possession to enable them to maintain an action to remove a cloud upon their title. The authorities cited by the defendant to the effect that one must be-in actual possession in order to maintain the action are not applicable. Upon examination it is believed that the decisions in those cases were all made prior to 1891, when section 1638 of the Code of Civil Procedure was amended. (See Laws of 1891, chap. 210.)
This brings us to the consideration of the merits of the appeal; and the real question presented is, whether the title to the land which lies within the boundaries of Exterior' street as designated upon the map referred to .passed by the deed of conveyance to Brown, or whether it was excepted by the city.- The question is not difficult of solution, inasmuch as the legal effect of a clause in a deed of conveyance similar to this was determined in Consolidated Ice Co. v. Mayor (166 N. Y. 92). In that case the clause in the deed read: “ Saving and reserving out of the hereby granted premises so much thereof as may form any part of any street or streets,avenue or avenues that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned or which are now in use as such,” and it was held that this clause was sufficient to reserve from the terms of the grant the title to land lying within the boundaries of a street which had been “ assigned ” and “ designated ” as such, even though it had not been laid out “according to law.” Chief Judge Parker, who delivered the opinion, said : “By this'saving clause the city did not undertake to reserve to itself something out of the granted premises Which had no existence before, * * * but instead to except from'the premises conveyed a.portion thereof which it proposed' to [472]*472use for a specified purpose. It was land under water that it proposed-to except otit of'the lands conveyed, and the representatives-of the • city being apparently in doubt as to whether a street had been regularly laid out or not, safeguarded the exception by saving- "and reserving from the premises granted ‘ so much thereof as may-form any part of any street or streets, avenue or avenues that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned of which are now in use as such.’ If the saving clause had been limited to* streets-laid out through the premises, then it would be -necessary to; inquire whether there was a legal street in existence at the time of" the grant; but when the grantor excepted from the lands conveyed so much of the premises as have been £ assigned, designated or laid out *• * * for the uses and purposes of public streets,’.the. exception covered the premises known as Exterior street for it had at least been £ assigned-’ and £ designated ’ as a street if it had not been ■ ‘ laid out ’ as such £ according- to law.’ The lands embraced • within the lines of Exterior street were not, therefore, conveyed to-the plaintiff’s predecessor in title by the grant of 1870.” ..
.. Here, the map attached to and made a part of the deed to Brown established that, the city had assigned and designated Exterior street,- and, therefore, it is of no importance to determine whether or not such, street had then been legally laid out, as the land embraced within the lines of that street. was not conveyed to the plaintiffs’' predecessor in title. The trial court so held, and we think correctly
The discussion might well end here, were it not for the- fact that,, the' trial court, as appears from the decision, not only passed upon the "question already considered, but also held that under the-covenant of the deed by which the title to the land within Exterior-street was excepted there was also “:an implied reservation of an easement in favor of the grantor, its successors and assigns over said premises described in the deed to Brown for a reasonable distance-north of-the line of Ninetieth Street and south of the line of Ninety-first Street, respectively, so far as necessary for access by water to-the end of said bulkhead when constructed in front of said streets, respectively, and along said exterior line of said street mentioned in. said covenant.” There is no such provision in the judgment; and [473]*473yet, notwithstanding that fact, inasmuch as the trial court assumed to pass upon the question, we think it is proper we should indicate-that we do not agree in the conclusion reached in this respect. It-might well be doubted, under the decision of the Consolidated Ice Co.
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McLaughlin, J.-:
■ On the 7th of April, 1869, the mayor, aldermen and commonalty of the city of New York conveyéd to one John L. Brown certain real estate in such city, mostly under water, between Ninetieth and Ninety-first streets, and the sanie has since, by mesne conveyances, been acquired by the plaintiffs. The defendant haying asserted a. claim thereto, or to some portion thereof, this action was brought under sections 1638 to 1650, inclusive, of the Code of' Civil Procedure to determine the title. The land conveyed is adjacent to' and bounded on the east by the East river, and the portion to which; defendant has asserted a claim of title .is bounded northerly by the southerly line of East Ninety-first street as extended to "the bulkhead line as established by chapter 763 of the Laws of 1857; easterly by the said bulkhead line ; southerly by the northerly side of East. Ninetieth street as extended to said bulkhead line, and westerly by a line drawn parallel with, and- distant seventy feet westerly from said bulkhead line. Its claim of title is based upon the following clause which appears in its deed, of conveyance'to Brown“ Saving and reserving out of the hereby granted premises so much thereof as may form part of any street or streets, avenue Or avenues, road or roads, bridge or bridges, that may now or hereafter be assigned, designated or laid out through said premises'according to law for the uses and purposes of public streets, avenues and . highways as- hereinafter mentioned or which are now in use as such.” Annexed to and made a part of the deed is- a map upon which appears a street, seventy feet in width, which extends across the whole width of the lot on the easterly portion thereof and is designated thereon as Exterior street. The trial court held, under the clause of the deed above quoted and the map taken- in connection therewith,.that the defendant excepted from the land, conveyed to Brown the title -to- such portion as lies within the boundaries of-Exterior street,, and gave judgment accordingly, from which plaintiffs, .have appealed..
Upon; the argument of the appeal the respondent challenged the; right of the appellants to maintain the action at all, inasmuch as .it-' [471]*471■did not appeal’ that at the time it was commenced the plaintiffs were in actual possession of the premises referred to. It is-not necessary, to maintain an action of this character under section 1638 ■of the Code of Civil Procedure, that the plaintiffs at the time of its' commencement should be in actual possession. If they have the legal title this is sufficient. (Gage v. Kaufman, 133 U. S. 471.) Possession is presumed to follow the legal title, and where the land is unoccupied, an allegation in the complaint and proof upon the trial that plaintiffs have the legal title is a sufficient allegation and proof of possession to enable them to maintain an action to remove a cloud upon their title. The authorities cited by the defendant to the effect that one must be-in actual possession in order to maintain the action are not applicable. Upon examination it is believed that the decisions in those cases were all made prior to 1891, when section 1638 of the Code of Civil Procedure was amended. (See Laws of 1891, chap. 210.)
This brings us to the consideration of the merits of the appeal; and the real question presented is, whether the title to the land which lies within the boundaries of Exterior' street as designated upon the map referred to .passed by the deed of conveyance to Brown, or whether it was excepted by the city.- The question is not difficult of solution, inasmuch as the legal effect of a clause in a deed of conveyance similar to this was determined in Consolidated Ice Co. v. Mayor (166 N. Y. 92). In that case the clause in the deed read: “ Saving and reserving out of the hereby granted premises so much thereof as may form any part of any street or streets,avenue or avenues that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned or which are now in use as such,” and it was held that this clause was sufficient to reserve from the terms of the grant the title to land lying within the boundaries of a street which had been “ assigned ” and “ designated ” as such, even though it had not been laid out “according to law.” Chief Judge Parker, who delivered the opinion, said : “By this'saving clause the city did not undertake to reserve to itself something out of the granted premises Which had no existence before, * * * but instead to except from'the premises conveyed a.portion thereof which it proposed' to [472]*472use for a specified purpose. It was land under water that it proposed-to except otit of'the lands conveyed, and the representatives-of the • city being apparently in doubt as to whether a street had been regularly laid out or not, safeguarded the exception by saving- "and reserving from the premises granted ‘ so much thereof as may-form any part of any street or streets, avenue or avenues that may now or hereafter be assigned, designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned of which are now in use as such.’ If the saving clause had been limited to* streets-laid out through the premises, then it would be -necessary to; inquire whether there was a legal street in existence at the time of" the grant; but when the grantor excepted from the lands conveyed so much of the premises as have been £ assigned, designated or laid out *• * * for the uses and purposes of public streets,’.the. exception covered the premises known as Exterior street for it had at least been £ assigned-’ and £ designated ’ as a street if it had not been ■ ‘ laid out ’ as such £ according- to law.’ The lands embraced • within the lines of Exterior street were not, therefore, conveyed to-the plaintiff’s predecessor in title by the grant of 1870.” ..
.. Here, the map attached to and made a part of the deed to Brown established that, the city had assigned and designated Exterior street,- and, therefore, it is of no importance to determine whether or not such, street had then been legally laid out, as the land embraced within the lines of that street. was not conveyed to the plaintiffs’' predecessor in title. The trial court so held, and we think correctly
The discussion might well end here, were it not for the- fact that,, the' trial court, as appears from the decision, not only passed upon the "question already considered, but also held that under the-covenant of the deed by which the title to the land within Exterior-street was excepted there was also “:an implied reservation of an easement in favor of the grantor, its successors and assigns over said premises described in the deed to Brown for a reasonable distance-north of-the line of Ninetieth Street and south of the line of Ninety-first Street, respectively, so far as necessary for access by water to-the end of said bulkhead when constructed in front of said streets, respectively, and along said exterior line of said street mentioned in. said covenant.” There is no such provision in the judgment; and [473]*473yet, notwithstanding that fact, inasmuch as the trial court assumed to pass upon the question, we think it is proper we should indicate-that we do not agree in the conclusion reached in this respect. It-might well be doubted, under the decision of the Consolidated Ice Co. case, already referred to, whether the question as to such easeméntscould be determined in this action; but, assuming that it could, it seems to us clear that no such easement was reserved by the city. The grant to Brown, it will be observed, is absolute in form and. includes all of the property situate between the original high-watermark and the harbor commissioners’ line, as established by chapter-763 of the Laws of 1857. It gave to the grantee all the right which the city had to collect “wharfage, cranage, advantages or emoluments growing or accruing by or from that part of the exterior line-of the said City lying on the easterly side of the hereby granted premises, fronting on the Harlem River, with full power to collect- and receive the same for his and their own use and benefit forever. Excepting such wharfage, cranage, advantages and emoluments to-grow or accrue from the end of the bulkhead in front of Ninetieth, and Ninety-first Streets, which shall be and are hereby reserved for the said parties of the first part, their successors and assigns, with full power to collect and receive the same for their own proper use and benefit forever.” From this and other language -used in the deed, it is clear that both parties contemplated that there should be built, extending along the river, in front of the premises conveyed, a bulkhead or pier to the exterior line. It is equally clear that all right to-receive wharfage or cranage was given to the plaintiffs’ predecessor in title; that nothing was reserved by the city in this respect. All. that the city reserved was the right to collect wharfage, cranage,, etc., from the end of the bulkhead in front of Ninetieth and Ninety-first streets, and to hold that it had an easement over the premises granted to the plaintiffs, to the end of such piers, is, as it seems to us, not only repugnant to, but, in a certain sense, destructive of the grant itself.
The judgment rendered was to the effect that the plaintiffs were entitled to improve their own property; that is, all the land described in the grant to said Brown, with the exception of the seventy-foot strip assigned and designated as Exterior street, subject-to the reasonable and proper regulation of Congress and of the-[474]*474department of docks and ferries of the defendant. This correctly determined the rights of the parties, but we do not see the-propriety of the clause making the improvements “ subject to the reasonable1 and proper regulation. of Congress.” . The .United States government was not- a party to the litigation and of course-is not bound by the judgment rendered. Whether the plaintiffs in improving their property-must dó so subject to regulations by Congress is a question which is not before us and which we do not consider: However, we think this clause was improperly inserted in- the1 judgment and should be stricken out.
We are. also of the opinion that the judgment should have com formed to the provisions of section 1645 of- the Code, of Civil Procedure-by providing that the defendant be forever barred from all claim to any estate in the property described in the complaint — other than that lying within the bounds' of Exterior street — or' to1 any interest or easement therein or lien or" incumbrance thereon., The action was brought for the purpose of quieting and settling and ■determining once for all what rights, if any, the defendant had; and the judgment rendered having determined such rights, the plaintiffs' were entitled to have the judgment conform-to the provision of- the-Code cited. - -
The judgment appealed from, therefore, should be: modified- as-indicated in this opinion, and as thus modified affirmed, - without--.costs to either party.
O’Brien, Ingraham and Hatch, JJ7, concurred; Van Brunt, P.-J., dissented.