
    Patrick J. O’Beirne and Mary A. O’Beirne, Appellants, v. Sarah Gildersleeve and Joseph Hegeman, Respondents.
    Second Department,
    January 25, 1907.
    Beal property — use of roadside of private way in which adjoining owners have joint easement — trespass.
    When a private way divides the lands of adjoining owners each owning the fee to the center and having an easement on the other portion, giving an open and unobstructed thoroughfare over the way, each owner may use his part of the fee in any way not inconsistent with an open and unobstructed passage by the other. Hence, when one owner sets out a hedge on his part of the fee, which, does not interfere with the right of way of the adjoining owner, the latter is liable for trespass, in entering upon his neighbor’s fee and destroying the hedge.
    The mere fact that a right of way is of a given width at a time when the easement is reserved does not entitle a'person reserving the easement to the right to pass over every part of the way unless necessary to the enjoyment of the right of way reserved. The rule in all such cases is that the right of way reserved is only such as is reasonably necessary and convenient for the purpose for which it was created.
    Appeal by the plaintiffs, Patrick J. O’Beirne and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of thé clerk of the county of Nassau on the 6th day of January, 1906, upon the decision of the court rendered after a trial at the Nassau Trial Term, a jury having been waived.
    
      Patrick J. O' Beirne, for the appellants.
    
      William O. Miles, for the respondents,
   Woodward, J.:

The plain tiffs bring this action to recover damages for several trespasses and injury to premises owned by them and in their possession at Bayville, Nassau county, and the complaint asks for an injunction perpetually restraining the defendants from entering upon the premises of the plaintiffs; that the plaintiffs be declared the owners, of the fee of the westerly half of a private road or lane adjacent to their premises; that said lane or road be declared a private lane or road, and that the defendants and each of them be forbidden and enjoined from inviting or extending permission to strangers and other persons not having rights. under deeds, to use said private lane or road; that the defendant Sarah Gildersleeve be directed and required to level, harden and grade said private road, and for such other or further relief as to the court may seem just. On the ■trial the complaint was dismissed, the plaintiffs appealing to this court.

There is no controversy, so far as this record shows, in reference to the facts material to the issues. Hiram Hegeman, father of the defendant Sarah Gildersleeve, originally owned a tract of land situated on both sides of a road or lane known as Hegeman avenue, including the roadway, in Bayville, town of Oyster Bay, Nassau county. Hegeman avenue extended northerly from Bayville avenue, the principal thoroughfare o.f the place, to the high-water mark of Long Island Sound, and at the time of the bringing of this action the defendant Sarah Gildersleeve was the owner of the fee of the premises on the easterly side of Hegeman avenue, holding under a devise from her deceased father. In September and October, 1900, by two separate deeds, the defendant Sarah Gilder-sleeve conveyed to the-plaintiffs two parcels on the westerly side of Hegeman avenue, and by mesne conveyances, the plaintiffs purchased two other plots on the same side of the way, making a tract-of about four acres. The deeds of the defendant Sarah Gilder-sleeve conveyed the fee of the .westerly half of the said Hegeman avenue to the center thereof, and it is not disputed that the plaintiffs are the owners of the fee of the roadway in front of their entire premises, the deeds - all having been made with reference to this roadway. The deed of October 12, 1900, conveying premises to the plaintiffs provides as follows: “ Said Hegeman Avenue as now laid OUt from the main highway through Bayville to the Sound, to be forever kept open and unobstructed as a street, way or thoroughfare, for the use and benefit of all parties' thereto, their heirs and assigns.” “ And the' said party of the first part (Sarah Gilder sleeve)' stipulates and agrees to level, grade and harden the said Hegéman Avenue from Bayville Avenue on the south to the shore of Long Island Sound on the north on or before the 1st day of April, 1901.”.

' There is no evidence in this cáse .that. liegeman avenue was a' public highway it appears' to have' been merely a roadway on paper at the tiipe the deeds were given, grown up to weeds and briers, and the covenant of the defendant Sarah Gildersleeve “to level, grade.and harden, the said Liegeman avenue from Bayville Avenue On the south to- the shore of Long Island Sound,” was a covenant to put the said roadway in proper .condition for .the use of. the parties to the agreement, not for the benefit of the public. The parties mutually agreed, the plaintiffs in ,so far as their own premises were concerned, the defendant Sarah Gildersleeve as to all the others, that “ said Heg'eman' Avenue as now laid out from the main highway through Bayville to the Sound, to be forever kept open and unobstructed as a street, way or. thoroughfare, for the use and benefit of all parties hereto,” etc. That is, the Owners of the fee to this way agreed mutually tóx keep the same open “ as a street, way or thoroughfare,” limited to the “ use and benefit of all parties hereto.” As against all the rest' of tile world this street or way might be closed at any time, and as, it might be closed as against all the rest of the World, so any one of the parties to the agreement had a right to .exclude this street or way from the use of any One not a party to the agreement, or not serving some' purpose of such parties. . It was a private way, in which each owner of a fee had an easement in the street, way or thoroughfare between Bayville avenue aiid Long Island Sound; that is, each owner of a fee had a right to an .“ open and unobstructed ” street,, way or thoroughfare, but this was not a covenant on the part either of the grantor or the grantee that the “ street, way or thoroughfare ” should be absolutely unobstructed, in the sense that it' -should not contain a tree or shrub or hitching post or horse-block or any of the things which might be necessary for the full “ use and benefit of all parties hereto.” Indeed, this •.view of the agreement is shown by the fact that one of the defendants did set out shade trees in front of the plaintiff’s premises at about the time the grant was made. The fair and rational construction of this covenant, in view of the purposes which the parties had in mind in reaching the agreement, which was that the plaintiffs desired the premises as a summer home, was that the way should be kept open to its full width, subject to such uses on the part of the owners of the fee as should not' interfere with the rights of others similarly situated to an open and unobstructed right of way in passing from their premises to Bayville avenue or Long Island Sound. ¡No one on the easterly side of Hegeman avenue had any right or interest in the use made of the westerly side of said avenue, so long as it did not interfere with an “ open and unobstructed ” passage to the points above mentioned, and the plaintiffs would have no right to interfere with any use of the easterly side of the avenue which did not sensibly affect their free and unobstructed passage along said avenue in reaching either of said points.

It appears from the evidence that the defendant Sarah Gilder-sleeve failed to perform her agreement in reference to leveling, grading and hardening the way between the points mentioned, and that the plaintiffs in 1903, after several requests that the defendant act, took it upon themselves to put the way in repair in front of their own premises at an expense of $130, extending the improvement only to the premises of which they were the'owners of the fee. They prepared a driveway some twelve or fifteen feet wide, sowed grass seed along the side of such roadway, set out a privet hedge between a line of shade trees set out by one of the defendants and the roadway thus prepared, leaving an open and unobstructed driveway from twelve to fifteen feet wide upon their own premises, independently of the open way on the easterly half of the way. These improvements were known to the defendants, the defendant Hegeman writing a letter to the plaintiffs and claiming that the hedge, which stood two or three feet outside of the line of maple trees which Hegeman had himself set. out, was an obstruction, in violation of the covenant in the deed, although he was not a party to the transaction and did not own any property along the way. He was warned not to interfere with the improvements made by the plaintiffs upon their own premises.

• "Thus matters remained' until June 20j .19-04, when the defendants appear to have been seized with an uncontrollable desire to perform' their covenant- to level, grade, and harden said Hegeman avenue. They entered upon plaintiffs’ premises, tore up the privet hedge and threw it into the roadway ; they plowed tip the surface of the easterly -side of -the way, where the defendants- had no dwelling house or other improvement, and scraped the loose- dirt over upon the plaintiffs’ premises, partially -destroying the grade and making the surface soft and irregular; they obstructed the entire roadway with piles of brush, weeds, etc., making it impassable for driving or walking, and plowed a deep furrow through the plaintiffs’ lawn, and generally conducted themselves in a manner, which was inconsistent with good neighborhood, and at a time when it is conceded there was no one living along the said avenue with the exception of the plaintiffs. .

The learned court-before whom the case was tried wrote a memorandum as follows: “ Privet hedge was on highway, therefore, previsions of deed that, ‘ Hegeman Avenue as now laid out from the main highway, etc., be forever kept open and unobstructed as a street, way or thoroughfare for the use of all the parties, hereto, their heirs and assigns,’ made privet .hedge an obstruction and defendants had a right to levels grade and harden -that part of road.”

We are unable to agree with this view of the case. As we have already suggested, the reservation of an easement in the single deed of the defendant Sarah Gildersleeve of an open and unobstructed street, way or thoroughfare did not reserve an absolutely unobstructedway; it reserved a way for the “ use and benefit ” of the parties; an open and. unobstructed street, way or thoroughfare for such use and benefit. The use and benefit was to be mutual; the plaintiffs owned the fee, it wag granted to them, and the grant of the fee was a farce-if it did not convey the rights which belong to the owner of the fee, limited only by the easement reserved, and we-have found no ease in this State in which it has been held that an easement such as- is here under consideration had the effect of absolutely excluding the owners of the fee from any use of the same, where such use did not interfere with the use to which it was dedicated. The grantor reserved out of the grant of the fee the right to the avenue as then laid out to “ be forever kept open and unobstructed,” not as to its entire surface, but “ as a street, way or thoroughfare, for the use and benefit of all parties hereto,” and this condition was complied with when an unobstructed way, sufficient for every use or benefit of the parties, was preserved' and maintained. The rule is well settled that an exception or reservation in a deed is to be taken most favorably to the grantee (Blackman v. Striker, 142 N. Y. 555, 560), and the mere fact that a way is of a given width at .the time the easement is reserved, does not entitle the per- . son reserving the easement to the right to pass over every part of such way, unless that is necessary to the enjoyment of the right of passage reserved. The rule in all such cases is that the right of way reserved is only such as is reasonably necessary and convenient for the purpose for which it was- created. (Grafton v. Moir, 130 N. Y. 465, 471, and. authorities there cited.) In the case now before the court the evidence shows conclusively that the way. was open and unobstructed between the ■ main highway and Long Island Sound, and there is no evidence whatever that the hedge planted by the- plaintiffs interfered in the slightest degree with any use or benefit which the defendants might have in the way. On the contrary, the evidence shows that the defendants were not occupying premises on such way, and as they had a clear and unobstructed passage of twelve to fifteen feet in going to or coming from the beach, they certainly had no grounds for complaint.

Furthermore, if it be conceded that the defendants had a right to “ level, grade and harden that part of road,” as suggested by the learned court below, the undisputed evidence is that the only effect of the*work done by the defendants was to spoil thg grade and to cover the way with loose dirt, and to obstruct the passage with piles of brush, weeds, etc., and the entire evidence irresistibly leads to the conclusion that the.defendants were not acting in good faith, but-were seeking to harass and annoy the plaintiffs.

The judgment appealed from should be reversed, and a new trial granted, costs to abide the event.

■ Hirschberg, P. J., Jenks, High and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event,  