
    Nathaniel Whitman and Others, Appellants, v. The City of New York, Respondent.
    
      Determination of a claim to real property—one having the legal title, although not in possession, may compel it —form of the judgment — a limitation in the judgment that the land was subject to the regulations of the United States, which was ■ not a party to the action, stricken out—deed ly the city of New York of land under the waters of the Narlem river, construed to except Exterior street and not to reserve any easement of access ovér the land conveyed.
    
    A person, having the legal title to real property which is unoccupied, may maintain an action, under section 1688 of the Code of Civil Procedure, to compel the determination of a claim to' such property, although he is not in the actual ■ possession thereof, . • •
    
      A conveyance by the city of New York of land, mostly under the waters of the Harlem river, between East Ninetieth street and East Ninety-first street, and extending from the original high-water mark to the bulkhead line established by chapter 763 of the Laws of 1857, contained the following clause: “ 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 was a map, upon which a strip seventy feet in width, extending across the entire front of the premises conveyed, was . designated as Exterior street.
    In an action brought by the grantee’s successors in interest against the city of New York, under section 1638 of the Code of Civil Procedure, to determine what rights, if any, the city had in the premises conveyed, it was Held, that the clause contained in the deed operated to reserve from the terms of the grant the title to the land lying within the boundaries of Exterior street as laid out on the map, and that it was, therefore, immaterial whether or not such street had been legally laid out;
    That, under the terms of the conveyance there was no implied reservation of an easement in favor of the grantor over the premises described in the deed for a reasonable distance- north of the line of East Ninetieth street and south of the line of Bast Ninety-first street respectively, so far as was necessary to afford access by water to the end of the bulkheads constructed by the city in front of the streets mentioned;
    That, the United States government not being a party to the action, the judgment entered therein should not provide that the plaintiffs’ right to improve all the land described in the deed, with the exception of the seventy-foot strip excepted therefrom, was subject to the reasonable and proper regulations of Congress;
    That the judgment entered in the action should, in conformity with section 1645 • of the Code of Civil Procedure, provide that the city be forever barred from all claim to any estate in the property mentioned in the deed, other than that lying within the bounds of Exterior street, or to any interest or easement therein or lien or incumbrance thereon.
    Yah Brunt, P. J., dissented.
    Appeal by the plaintiffs, Nathaniel Whitman and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of January, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging, among other things, that the defendant is the owner of certain real property in the city of New York.
    
      
      Charles E. Hughes, for the appellants. .
    
      T. Connoly,. for the respondent.- .
   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-' ■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 use 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 yet, 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-department 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.

Van Brunt, P. J.:

I dissent. I think the judgment should be-affirmed.

Judgment modified as directed in' opinion,: and- as- modified .affirmed,-without costs.. -  