
    Dwight Johnson and others, App’lts, v. The Shelter Island Grove and Camp Meeting Association, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February, 1888.)
    
    Easements—Dedication—Requisite acts—Descripition of property BOUNDED BY A ROAD—EFFECT OF EASEMENT LIMITED TO THE ROAD WITH WHICH THE PROPERTY CONVEYED HAS IMMEDIATE CONNECTION.
    To constitute a dedication of land, there must be clear, unequivocal and decisive acts of the owner manifesting a positive and unmistakable intention to make a permanent abandonment of his property to the specific purpose intended. The conveyance of a lot with reference to a map designating a strip of land as a street upon which the lot is located gives the grantee a right of way over the street to his lot as against the grantor and person claiming under him. But the appurtenent right does not extend to streets and parts with which the property conveyed has no immediate connection. Case of Wyman, 11 Wend., 486, criticised.
    
      J. M. & A. H. Van Cott, for app’lts; William B. Hill, for resp’ts.
   Dykman, J.

It is the object of this action to obtain a judgment which shall restrain the defendant from using a certain space of ground belonging to the association called the Ramble for the erection of a hotel, and which shall also declare such space to be public ground and dedicated to the use of the plaintiffs and others.

The basal «facts in the case are these: The defendant is an incorporated association created by special law, and endowed with power and authority to purchase and hold real property, and sell and convey the same, and to make all necessary and desirable improvements thereon.

The association was organized under its charter in the year 1872, and purchased several hundred acres of land located on Shelter Island, in the county of Suffolk, for the purpose of devoting the same to the objects and purposes of the association.

The island was environed by sea water and conspicuously elevated. It was diversified with summits and slopes-and vales, and the entire configuration of the land was well adapted to the subservience of the aims and objects of the corporation. It furnished a great variety of desirable locations, and a plan of improvement was adopted by the corporation, with a view to the development and utilization of the beauties and facilities of the entire property.

Streets, and avenues, and parks, and places, were surveyed and projected, and closed with euphonious appellations and designations, and lots were laid off upon the streets .and avenues, but not upon the parks or on the rambles, so far as we can see or learn from the record, and a map was made upon which they were all delineated. Copies of this map were exhibited to purchasers, and distributed at public sales, and many lots were sold. One form of a deed was adopted and used to convey all the lots. It conveys the lots by their numbers as they are designated on the map, and specifies their frontage upon the streets or- avenues on which they are located, and contains many conditions-which are immaterial in this case.

The. plaintiffs each own one or more of the lots so laid out and designated on the maps, but neither of the lots are located on the ramble.

The defendant now proposes to construct a hotel on the ramble, and the plaintiffs seek to restrain such erection because the land has been dedicated and devoted by the defendant, by grant, and by equitable estoppel, as an appurtenant easement for the use of the plaintiffs and other purchasers from the defendant.

To constitute a dedication of land there must be clear, unequivocal and decisive acts of the owner manifesting a positive and unmistakable intention to make a permanent abandonment of his property to the specific purpose intended.

Dedication itself is an easement in land, but these plaintiffs do not contend for the effect of a full dedication to the public They claim the dedication to them and others of the space called the ramble, by right of their purchases, and this involves another view.

The conveyance of a lot, with reference tq a map designating a strip of land as a street upon which the lot is located, or the conveyance of a lot with .a boundary upon a .street, gives the grantee a right of way over the street to his lot, as against the grantor and persons claiming under him. Such right of way is annexed as an easement to the lot located upon the street, but it does not operate as a dedication of the street to the public until there has been an acceptance of the same, but the grantee has a right to the use of the street, open at both ends, to the full extent of its dimensions, as soon as the conveyance is made. Such right attaches as an appurtenant to the land. The reference to the map designating the lot as located on a street as laid thereon, amounts to a declaration that the space is a servitude or right of way from the property conveyed to a public thoroughfare.

As between the grantor and the grantee, they become public streets to all intents and purposes, but the public is charged with no duty in relation thereto.

But the appurtenant right does not extend to streets and parks with which the property conveyed has no immediate •connection. A different view was expressed in the opinion of the chief justice in the case of Wyman (11 Wend., 487), but the case required the decision of no such question, and called for no such remark. The doctrine never received adoption into the jurisprudence of the state, and it is opposed, tq well settled principles of law, and it was repudiated by the supreme court in our district in the case of Badeau v. Mead, 14 Barb., 332.

The implication of a grant of an easement in a street to the purchaser of a lot located upon it, proceeds on a construction of the grant itself, which is held to constitute an appropriation of the spaces designated as streets appurtenant to the land conveyed, but not to any other land. If there be no reference in the deed to a street, there can be no easement in it. Badeau v. Mead, 14 Barb.

The case of Newman v. Nellis (97 N. Y., 285), seems to be decisive of this point. That was an action to compel the removal of obstructions placed by the defendant upon land over which the plaintiff claimed a right of way. The defendant Nellis, sold and conveyed a lot of land to Michael Newman, and by him it was conveyed to one Parkhurst, who conveyed the same to the plaintiff. The deed described the premises by metes and bounds, but made no reference to any street or to any map.

Judge Andrews - in delivering the opinion of the court says: “The case is not within the doctrine that where the owner of a tract of land lays it out into lots or streets, and afterwards conveys lots bounding them on the streets so laid out, or by reference in the deed to a map on which the streets are designated, he impliedly grants an easement in the streets to the purchaser.”

During the negotiations between the defendant and Michael Newman, for the sale of the lot, the defendant represented to Newman that the lot was a corner lot, situated on the corner of two streets or highways, and promised him that he would open the latter for the use of Michael and his family, and the public. Michael was induced to make the purchase of the lot, at a large price, by such representations and promises, and had erected a dwelling house thereon. The defendant had sold lots to other persons upon similar promises and assurances.

Upon this subject, Judge Andrews further said: “It may be conceded that the promise of the defendant made to Michael Newman to open the street, standing alone, would, if unexecuted, be incapable of enforcement.- The plaintiff would encounter several difficulties. In the first place, she would be met by the objection that the deed was the final consummation of the bargain, and merged all prior negotiations and stipulations.

If this could be answered by the claim that the promise to open the street was a distinct collateral undertaking, and was not, therefore, within the rule excluding paroi evidence to vary a written instrument (as to which we express no opinion), the further objection affecting the legal validity of the promise would remain, that it related to an incorporeal right in real estate, and, not being in writing, was void by the statute of frauds.”

This opinion brings before us well settled principles of law, and is in harmony with the adjudicated cases and elemental writings.

The road or way was subsequently opened, and such opening was held to enure to the benefit of the lot owners, and to conclude the grantor and to estop him from its obstruction.

Under the doctrine taught by this case, some reference in the deed of conveyance to a street, which shall evince an intention to appropriate .the same as appurtenant to the land conveyed, is essential to the acquisition of an easement by the grantee.

It seems to result from this examination that the plaintiffs took no rights, except such as resulted from and were secured by their deeds of conveyance, as easement annexed to their property, and it follows necessarily that they took no interest in other streets, parks or places, because they are unnecessary for the beneficial enjoyment. of their property. All claims for easements must be founded upon grants or upon prescription, which supposes a grant.

An appurtenant right cannot extend to separate and distinct premises without a specification of the same as a distinct subject. Badeau v. Mead (supra). The facts upon which that case went to the court were very similar to those presented in this case. The sale was made at auction by a map, and the plaintiff in that action insisted upon the same legal result, as the plaintiffs here, and the court said by the opinion after reciting such facts—“It is apparent from this statement that the plaintiff’s whole reliance for relief must be upon his deed and the map to which it refers. -» -x- * Opinions may have been, and I think were expressed by some of the members of the court, for the correction of errors, that a purchaser of a city lot had an interest in all the streets described in' the map of a large tract owned by the vender, to which a reference was made in his deed, but that point was not necessarily involved, and any opinion upon it opposed as it is by well settled principles cannot be considered as a controlling authority.

The symbolical indication upon the maps to denote a public place are quite too uncertain and indistinct to constitute the foundation of a legal right, and even if they were as distinct and certain as the plaintiffs claim, they would furnish no aid to them, because they must, as we have seen, derive all their rights from their conveyances and they contain no reference to the Ramble.

Our conclusion is therefore that the judgment should be affirmed with costs.

There is also an appeal from an order granting to the defendant an additional allowance of $500, and we,think the order is erroneous. An additional allowance must be based upon the value of the subject-matter involved in the action, and in this action tho,t subject-matter was a mere, legal intangible right. The title to the property was not brought in question, and all the plaintiffs claimed was a right to have it maintained in a state of nature for their ■use as a ramble or open space. It involved only a legal right, whether the defendant should control its own property to which the title was undisputed, or whether the plaintiffs had acquired an easement therein.

There being no basis for the support of the claim for an additional allowance, the order should be reversed with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.  