
    S. Hamblen Holden, Respondent, v. Theresa Crolly, Appellant, Impleaded with Charles H. Hall and Others, Defendants.
    Second Department,
    November 15, 1912.
    Beal property — action to determine claim to real property — evidence — equitable rules applied.
    Action under section 1638 of the Code of Civil Procedure to determine a claim to real property. Evidence examined, and Jield, that a judgment in favor of the plaintiff should be affirmed.
    Evidence tending to show the mutual understanding and conduct of parties as to the actual location of boundary lines at the túne of the delivery of a deed is admissible where it merely explains the language of the deed which is not in itself self-explanatory.
    Equitable rules may be applied in such an action in order to reach a proper determination of the controversy.
    Appeal by the defendant, Theresa Crolly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of January, 1912, upon the decision of' the court rendered after a trial at the Westchester Special Term.
    
      C. W. Ticknor [Joseph E. Merriam with him on the brief], for the appellant.
    
      Jonathan Holden, for the respondent.
   Carr, J.:

This is an appeal from a judgment in favor of the plaintiff, entered at Special Term in Westchester county in an action brought under section 1638 of the Code of Civil Procedure, to determine a claim to real property situate in the village of Pleasantville in said county. The defendant Theresa Crolly, who is the only appellant, and the plaintiff have derived whatever rights they may possess mutually in the land in question from an ultimate common source of title. In February, 1868, Ira Wheeler acquired, by deed, title to a tract of land fronting upon-a highway, known formerly as Railroad avenue but now as Bedford road. The west boundary of this tract was the “east side of the New York and Harlem Railroad,” or “ the Rail Road fence,” and the east boundary was at one time the land of Henry Hobby, and later that of Mary Stephens. In 1888 Ira Wheeler conveyed a portion of this tract to the defendant Theresa Crolly by deed with a description as follows: “Beginning at a point on the southerly side of the road leading from Pleasantville to Sing Sing and now .known as Rail Road Avenue, one hundred and twenty-two (122) feet easterly from the easterly line of the New York and Harlem Railroad, thence running easterly along said Road or Avenue, fifty-five (55) feet, thence southerly at right angles with’ said road or avenue one hundred & fifty (150) feet, thence westerly parallel with said road or avenue fifty-five feet, thence northerly at right angles with said road or avenue one hundred and fifty feet to the place of beginning. Together with a right of way thirty feet wide extending from Railroad Avenue southerly to a new street called Clinton Street and the easterly line of such right' of way is to he the westerly line of the lot hereby conveyed such right of way to be a free open and unobstructed right of way to the party of the second part and tó any and all persons for the purposes of ingress and egress and passing to and fro from said Railroad Avenue to the said new street known as Clinton Street or to or from any intermediate point on such right of way. ” This deed was recorded in April, 1888, and was the first conveyance out of Wheeler of any portion of the original tract. It was found by the trial court on the request of the defendant Crolly that, on the execution and delivery of the foregoing deed, the said defendant entered into possession of the land described therein and continued in possession for more than twenty years prior to the beginning of this action. This finding is based upon indisputable evidence, Mrs. Crolly having built a department store on the land in 1888 and having occupied it ever since the construction of the building. In July, 1890, Wheeler conveyed another portion of his original tract to Jennie I. Lane, who in turn conveyed to her husband, Winfield Lane. The deed to Mrs. Lane contained a description, as follows: “Beginning at a point on the southerly side of the road léading, from Pleasant-ville to Sing Sing and known as Railroad Avenue, adjoining the land of Theresa Crolly; thence running easterly along said road fifty eight feet to the land of Mary Stephens; thence southerly along the land of said Stephens one hundred and ninety two feet to the land of Geo. H. Wheeler; thence westerly along said Wheeler land seventy five feet to a right of way; thence northerly along said right of way twenty eight feet to the land of Theresa Crolly; thence easterly along said Crollys land fifty five feet; thence northerly along said Crollys land one hundred and fifty feet to the place of beginning, all distances above mentioned to he more or less.” Mr. Lane is not a party to this action, hut was examined as a witness at the trial and made no claim in hostility to the plaintiff. The description in the deed of Wheeler to Mrs. Lane necessarily implied a reference, as ah integral consideration, to the deed from Wheeler to Mrs. Crolly, for the westerly line of the Lane lot was necessarily the easterly line of the Crolly lot. While the deed to Lane called for a lot fronting on the highway fifty-eight feet, yet, as the deed declared, “ all distances above mentioned to be more or less,” it is clear that all the land of Wheeler fronting on the highway east of the easterly line of Crolly’s lot was conveyed to Lane by that part of the description which carried the Lane lot from the easterly Crolly line easterly “ to the land of Mary Stephens,” whether the actual distance along the highway was more or less than fifty-eight feet, and the learned trial court has so found at the request of the defendant Crolly. After the deed to Lane Wheeler died, and his successors in interest conveyed the remainder of this original tract located west of the thirty-foot right of way, and the plaintiff' in this action has acquired title to a portion of said remainder by a deed which fixed her easterly boundary on the west line of “Wheeler Avenue.” It is conceded that “ Wheeler Avenue ” referred to in plaintiff’s deed is the thirty-foot right of way referred to in the deed of Wheeler to Crolly, where it was declared that “ the easterly line of such right of way is to be the westerly line ” of the Crolly lot. In the deed from Wheeler to Crolly, as before stated, the westerly line of the Crolly lot was located “ one hundred and twenty two (122) feet easterly from the easterly line of the New York and Harlem Railroad.” Ordinarily this would seem a sufficiently definite location easily determinable by the location of the easterly line of the railroad. However, it is the essence of the plaintiff’s contention in this controversy that the words “easterly line of the New York and Harlem Railroad,” as used in the deed from Wheeler to Crolly, were intended mutually to mean a point in the center of a stone wall which ran along the crest of a bank near and parallel to the railroad tracks, which wall Wheeler, the grantor, had understood to be on the “easterly line” of the railroad in question, when he used said language in his deed to Crolly.

In 1845 the land now in question formed a part of a farm owned by one Henry Hobby. In that year Hobby made a deed to the railroad company of a strip of land through Ms farm 70 feet wide and 2,587 feet long, runmng through the farm “as now laid out and located through the said farm as part of the route for the extension of the New York and Harlem Railroad between White Plains and Somers, in the Oounty Westchester bounded northerly by land of Henry Romer southerly by land of John Poster easterly by a line running parallel with the centre line of said Railroad as now staked out through said farm and distant easterly therefrom thirty feet and westerly by a line running parallel with said centre line & distant westerly therefrom forty feet.” This deed likewise contained a covenant that the grantors, their heirs and assigns, should “ at all times make and forever maintain good and sufficient fences on both sides of the strip or piece of land hereinbefore described. ” At what time Hobby, in pursuance of said covenant, made fences on the sides of the strip conveyed to the railroad company does not appear,, but that some fence was made on the easterly line, presumably by him, between 1845 and 1853, is evident from the fact that in the latter year Hobby made a deed to one Mabee of a part of his farm fronting on the highway and east of and adjoining the railroad land, and by said deed described the property they conveyed as bounded “to” and ‘‘along the Railroad fence.” In fact the description in this deed expressly made “ the Railroad fence ” the westerly boundary of the land thereby conveyed, for the description therein identifies the “Railroad fence” and the east line of the land of the railroad as being coincident. This description is in language as follows: “All that certain piece or parcel of land lying and being in the Town of Mount Pleasant, Oounty and State aforesaid, Bounded as follows: Beginning at the northwest corner of said piece, adjoining the land of the Harlem Rail Road, running thence easterly one hundred and eighty feet or to the centre of the second and third row of Doureny apple trees along the highway leading from Sing Sing to Pleasantville, thence southerly in centre of said rows of trees one hundred and eighty four feet to the stone wall, thence westerly one hundred and fifty and a half feet along the stone wall to the Railroad fence, thence northerly along the Railroad fence one hundred fifty and a half feet to the place of beginning.” (Italics ours.)

This deed likewise contained a covenant that the grantee (Mabee) was “to make the east fence and to maintain this and the railroad fence.” In 1854 Mabee acquired by deed from Hobby an additional piece of land fronting on the highway, and immediately east of the land conveyed to him in 1853. Both of these pieces were conveyed subsequently to one Hyatt in 1868, who in the same year conveyed them to Ira Wheeler. In the deeds from Mabee to Hyatt and from Hyatt to Wheeler the words “Bail Boad fence” are used to describe one of the boundaries of the land granted therein, just as they were .used in the deed from Hobby to Mabee. It is agreed, as it must be, that Wheeler acquired through Hyatt that which Mabee had acquired from Hobby, and the express recitals in the various deeds in question establish this to be the fact beyond possible controversy. It appears that for a great number of years á stone wall ran along the crest of the bank east of and nearly adjoining the railroad tracks, and that no other fence had ever existed between the railroad and the land adjoining it easterly. From this fact it is argued that it is a fair inference that the stone wall and the “Bail Boad fence” referred to in the deeds hereinbefore specified were in fact identical. There is no evidence in this record which in any way rebuts such inference. This being so, then the stone wall in question was the westerly boundary of the lands conveyed by Hobby to Mabee and which were afterwards acquired through mesne conveyances by Wheeler. The latter held the property so acquired for twenty years before making any conveyances, and during all of this time it was his understanding that this stone wall marked not only the westerly boundary of his property but the easterly line of the railroad as well. For many years the railroad company was in apparent possession of parts of the land lying westerly of this wall. As this land fronted on the highway in 1888, it was inclosed by another stone wall running along the southerly line of the highway then known as Bailroad avenue and now known as Bedford road. The northerly line of the highway was intersected opposite Wheeler’s property by a street known as Wheeler avenue. Through his son, acting as his agent, he set about to sell some portion of this land. It was bis idea to open a public right of way southerly through his land to a ne,w street known as Clinton street and which should he thirty feet in width and opposite to and a continuation of Wheeler avenue as already existing, as it intersected the northerly side of Eailroad avenue. His son caused a break to be made in the stone wall which ran along Eailroad avenue and staked out the proposed right of way. Thereupon a contract in writing was made between Wheeler and Charles Crolly, the husband of the defendant appellant, whereby Wheeler undertook to convey a piece of land therein described as follows: “ Beginning at a point on Eailroad Avenue at the east side of a projected street which it is hereby agreed shall be a continuation of and opposite Wheeler Avenue, and thirty feet or more in width; thence running eastwardly along Eailroad Avenue fifty five feet; thence southerly one hundred and fifty feet; thence westwardly fifty five feet to the line of above mentioned street; thence northwardly along the line of said street one hundred and fifty feet to the place of beginning, all the angles of above to be ninety degrees.”

No other contract was made between Crolly and Wheeler, and the latter was directed subsequently to make out the deed to Mrs. Crolly as grantee. Wheeler’s son staked out the lot sold by iron stakes. He furnished the data to Mrs. Orolly’s attorney for the drawing of the deed which was subsequently executed and delivered.

Wheeler did not employ in this deed the same form of description as used in the contract. The deed made the beginning point of the description a point on the highway “one hundred and twenty two (122) feet easterly from the easterly line of the New York and Harlem Eailroad,” but it is apparent that the description in the deed and the contract, though different in words, were intended to express exactly the same thing, for by both instruments the easterly line of the projected, street or right of way and the westerly line of the lot granted were referred to as coincident. As before stated, Wheeler had staked out the east and west lines of the right of way and had taken down a part of a wall running along Eailroad avenue, which lay between the stakes. Wheeler had taken the old stone wall which ran north and south along the westerly portion of his property as “the easterly line ” of the railroad and made his measurement of the specified one hundred and twenty feet from a point in the center of the stone wall. When Mrs. Crolly went into possession she took down part of the other wall along Railroad avenue as it ran along easterly for fifty-five feet up to a stake which had been set by Wheeler. She caused a store building to be constructed thereon, the easterly side of which building being several feet westerly from the easterly stake set by Wheeler. The fact of the actual location of the building with reference to this stake is of great importance in this controversy as will appear later. In 1890 Wheeler conveyed to Lane all the remainder of his property fronting on Railroad avenue east of Crolly’s east line. In 1893 Lane started to build on his land and found an iron stake apparently marking his west and Crolly’s east line. This stake remained in the same place until a few weeks before this trial, when it was removed by Mrs. Crolly’s husband. Lane considered this stake as marking the boundary line between Crolly’s land and his own piece, and he built a stone retaining wall running southerly from Railroad avenue along said line.. The present controversy arises from the following circumstance: When Hobby conveyed the strip of land to the railroad in 1845 he made such conveyance with reference to the lines of the railroad as then “ laid out,” “ located ” and “ staked out ” through his farm. It appears without controversy in the case that the easterly line of the railroad as then laid out and located was not in fact coincident with the fine of the stone wall, which is assumed to have been the “Rail Road fence ” described in the various deeds, but was a fraction over eleven feet to the west of the line of said wall. If the stone wall or “Rail Road fence ” was to be disregarded as the proper base of the distances set forth in the deed of Wheeler to Crolly, then the lines of the right of way were fixed as much further westerly as the distance between this wall and the east line of the railroad land as actually located in 1845. To this extent Crolly’s west line would be moved westerly accordingly as it was intended to be coincident with the east line of the right of way. To the same extent the east line of the plaintiff’s property, which was bounded by the westerly side of the right of way, should be moved necessarily to the west, thus decreasing the extent of the width of the plaintiff’s lot some eight feet or more. The plaintiff brought this action to secure a determination that it was the intent of the parties to the Wheeler-Crolly deed to make the stone wall or “ Rail Road fence ” as the base of the measurement of the distances specified in said deed. Mrs. Crolly. contends that she had no knowledge that any other base was intended except that which should be expressed necessarily by the literal meaning of the words, “ the easterly line of the New York and Harlem Railroad.”

She does not pretend that when she took the deed she had any knowledge or information as to the exact location of the railroad line under the Hobby deed of 1845. It is evident, however, that when she took her deed- she took it with reference to monuments actually placed on the land by her grantor to mark out visibly the land about to be conveyed to her. If her present contention were to be upheld, it would appear that in 1888, when she built her building upon the land in question, she placed its easterly side some feet beyond her easterly line, thus committing a legal trespass at that time; if, on the contrary, she built with reference to the existing stakes, then the location of her building was wholly within her boundary lines as her grantor and she herself understood them. We think the learned trial court was right in taking the evidence offered by the plaintiff, which tended to show the mutual understanding and conduct of the parties as to the actual location of the boundary lines at the time the deed was delivered. This evidence did not contradict a written instrument, it merely explained language therein contained which was not in itself self-explicatory, and in this respect the case át bar is to be distinguished from Muldoon v. Deline (135 N. Y. 150), where the action was in ejectment and no equitable relief was sought. It is true that the present form of action is statutory and can be maintained only under the circumstances specified by the statute, but if the action can be maintained under the statute, as we think it can, then equitable rules may be applied to reach a proper determination, for the purpose of the statute was to enlarge and supplement the pre-existing equitable remedies.

The judgment should be affirmed, with costs.

Jenks, P. J., Thomas, Woodward and Rich, JJ.> concurred.

Judgment affirmed, with costs.  