
    Samuel J. Haight et al., Resp’ts, v. Littlefield et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 29, 1895.)
    
    Right of way—Boundary en deeds.
    Where a grantor, who owns land on all sides of a strip of land dedicated to him in his deeds, and in maps referred to in the deeds, as a street, though . not accepted as such by the public, conveys a Ipt abutting on the strip with reference to the strip as a boundary, the grantee secures an easement in the strip, and is entitled to have enjoined any obstruction thereof by his grantor, though, at the time of the conveyance, such grantor was using with the grantee's knowledge, the strip in a manner inconsistent with the existence of the right of way.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which modified, and affirmed, as modified, a judgment in favor of plaintiffs entered upon the report of a referee.
    
      Worthington Frothingham, for app’lts; Isaac Lawson, for resp’ts.
    
      
       Affirming 54 St. Rep. 783.
    
   O'Brien, J.

The purpose of this action was to protect, through the judgment and decree of a court of equity, a right of way which the plaintiffs claim as appurtentant to their land, and to prevent its unlawful obstruction by the defendants. The facts which lie at the basis of the controversy have been alleged in the complaint, and found by the referee in great detail and with minute regard to every conveyance in the chain of title of both parties. The questions involved in this appeal can be sufficiently presented by a brief reference to some of the main or general facts alleged and found.

On the 28d of November, 1868, the defendant Dennis G-. Little-field became the owner, by grant from the executors of Stephen Van Rensselaer, of a parcel of land in the city of Albany which was bounded on the south by the north line of a street to be at least fifty feet wide. In the body of the conveyance was a map of the parcel, showing the boundary lines and the street on the south side. On August 1, 1870, the same grantors conveyed to the same grantee two other parcels of land, both of which were bounded on a street fifty feet wide. One of the parcels was bounded on the south by the north line of this street, and the other on the north by the south line of the street. This conveyance also con-' tained a map which was referred to in the descriptions, and which showed the boundary lines of the parcels granted, and betweenothe two parcels a street fifty feet wide was plainly delineated. The defendant Littlefield, under these grants, became the owner of all the lands on both sides of the street referred to, as it was a ml de sac about three hundred and fifty feet in length extending from North Pearl street to the railroad which closed it at one end. This way had never been accepted by the public authorities as a public street, and was not used as such, but simply as a means of ingress and egress to and from the lands along its boundaries. In the deed last referred to, however, there was a clause inserted to the effect that both parties to the grant dedicated this strip of land forever to the public as a public street, contemplating its extension in the future beyond the railroad where it then terminated. All the defendants have some title or interest in the land described in the deeds referred to, which right has been derived solely through mesne conveyances from Littlefield, in which the lands were bounded and described substantially in the same language as in the conveyances to him. In all of them the existence of the street was recognized, and in none of them was it expressly restricted or any language used indicating an intent to extinguish it in whole or in part.

On June 15, 1885, Littlefield also conveyed to the plaintiffs a parcel of this land on the south side of the street, which is now-used by them for manufacturing purposes. It was bounded on the south line of this street, which in the conveyance is called Pleasant street, and further described as a portion of the premises conveyed to Littlefield by the deed of August 1, 1870, by the executors of Yan Rensselaer. This conveyance and the others referred to with the maps bounding the premises upon a street secured to the plaintiffs an easement or right of way in the strip of land so delineated, described and recognized. Whether it was then a public street or not, this easement or right of way was attached as an appurtenance to the land conveyed, and part of the thing granted, and thereupon the plaintiffs acquired the right to insist at all times that the way be kept open and unobstructed for the benefit of their premises, and as a means of access to and from the same. It is a property right the destruction or ivasion of which constitutes a ground of relief in equity. Irrespective of the rights of the public street, the owners of lots bounded upon a street have, under the circumstances disclosed, a right of way as between themselves and their grantor. People v. Underhill, 144 N. Y. 316; 63 St. Rep. 610; Hennessy v. Murdock, 137 N. Y. 317; 50 St. Rep. 717; Lord v. Atkins, 138 N. Y. 184; Cunningham v. Fitzgerald, 138 N. Y. 138; 51 St. Rep. 840. The referee has found that subsequent to the grant to the plaintiffs the defendants obstructed the street or way by the digging of -a ditch across it, and by inclosing some portion or it with fences for their own exclusive use. This was an invasion of the plaintiff’s rights which equity could properly interpose to prevent or to remedy. Some of the findings of the referee,- made at the request of the defendants’ counsel indicate that some of the fences, by means of which the defendants had inclosed some portion of the street and appropriated it to their own use, were in existence and upon the premises at the time of the plaintiffs’ grant, and to their knowledge.

The mere fact that the defendants had obstructed the street to some extent before conveying to the plaintiffs, and that the plaintiffs, at the time of this grant, knew of the existence of such obtructions, or could have known, we do not regard as material. The plaintiffs’ rights depend upon the construction of their deed, and if ■ that instrument secured to them an unobstructed right of way they are not estopped from insisting upon such right by reason of the fact that the defendants were, at the time of the conveyance, using some part of the premises in a manner even inconsistent with the existence of the right of way now claimed. It must be remembered that the defendants then owned the land on both sides of the street and could have extinguished the easement entirely unless there had been a dedication of it to the public, a question not now important to solve. In this condition of things the defendants conveyed to the plaintiffs, recognizing the street as the boundary and without any restrictions or qualifications in the grant upon the manner or extent of its use by the grantees. It is not claimed by way of defense that the deed does not in every respect express the intention of the parties or that there was any intention on the part of grantors or grantees to limit its effect by reason of physical appearances which the defendants had created before the conveyance in the use of the premises. If the case presented such an issue the presence of the fences on the ground at the time of the conveyance to the plaintiffs might possibly be material, as the question would then be whether the deed did not convey more than was intended. Taylor v. Hopper, 62 N. Y. 649. But, in view of the fact that the defendants had, prior to the grant to the plaintiffs, used, possessed and owned the whole of the premises, including the street, there was nothing in the appearance of things upon the premises at all inconsistent with the terms of the deed granting a right of way over the street, as described in the several conveyances. The plaintiffs have, therefore, under these circumstances, the right to insist that their right in the street shall be governed by the deed and not by the actual physical appearances when it was made. It is the defendants’ grant, and no equitable ground is presented for limiting its scope or construction by reason of the fact that the defendants had at the time put some part of the obstruction complained of in the street, so long as they have not acquired the right to continue it by user or adverse possession. One who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has to the land. He may insist upon its use whenever occasion requires, and it is ordinarily no answer to his claim to urge that his rights under the deed are more extensive than he had any reason to expect from the situation existing at the time it was made. The right conveyed can be defeated only by showing that it has been waived or lost in some of the ways recognized by law. Welsh v. Taylor, 134 N. Y. 450; 47 St. Rep. 653. That has not been done in this case. There is evidence to sustain all the findings of the referee, and these findings warrant the judgment given.

We think there was no error in the disposition of the case in the courts below, and that the judgment should be affirmed with costs.

All concur.

Judgment affirmed.  