
    Herman Huttemeier, Plaintiff and Respondent, v. Benjamin Albro, Defendant and Appellant.
    
    J. B. was the owner of several contiguous lots, fronting on a public street, running to the corner formed thereby with an intersecting street, and, also, of the contiguous lots in the rear, fronting on the cross street; and for 40 years prior to his death, he had used an alley-way, running from such cross street, along the rear of the first-named lots, as a means of access and egress from and to the rear of such lots, upon the rear of one of which was a small house, let from time to time, to various tenants, who used the alley-way.
    After the death of J. B. the premises continued to be so used for several years, and one of the lots was leased, by the heirs, for five years, and was described in the lease, as hounded northerly, in the rear, by an alley for the use of this lot in common with the lot adjoining This lease, by assignment, came to the plaintiff. Afterwards, during the term of the lease, partition was voluntarily made by such heirs, and in conveying the said lot to the one to whom it was allotted, it was described in the deed, as “ running to the southerly side of the alleyway, and thence southeasterly, along the said alley-way, 21 feet 10 inches,” and it was conveyed, “together with all and singular the appurtenances,” etc. The lot was thereafter, before the expiration of the lease, conveyed in the same termg by such grantee, to the plaintiff, the tenant in possession.
    After the expiration of the lease, the defendant, a grantee of other of the heirs, closed the alley by an erection on the line of the cross street.
    Held, in an action to compel the removal of the obstruction, and for damages,
    1. Ho easement was created, during the life of J. B., which would pass to the grantee of one of the lots by mere force of the word “ appurtenances” in the deed from the heirs-at-law, so as to give such grantee a right to use the alleyway. Ho one can be said to have an easement in his own land, and no right of way could exist, as such, so long as the title to the alley and the contiguous lots, was vested in fee in the same person.
    2. The conveyance made on the partition of the lots, describing one of them as running to the alley, and running along the alley, in connection with the actual use of such alley at that time, and for many years before, as a way of ingress and egress from and to such lot, are sufficient to show an intent to create the easement, and to confer the right of way on the grantee, who thereby acquires an easement in the alley, which, in turn, passes to his grantee.
    8. Where a lot is conveyed which has a front bounding on a public street, the grantee does not take “ a right of way by necessity,” through an alley lying at the rear of the lot, although there be on such rear a dwelling house, and the grantor has, for forty years, used the alley as a way of ingress and egress for his tenants in such house.
    (Before Duer, Ch J., and Woodruff, J.)
    Heard, Oct. 23d, 1857;
    
    decided, March 6th, 1858.
    This action is brought to compel the defendant to remove from an alley-way running along the rear of the plaintiff’s lot, No. 108 Division street, a- shed and other obstructions, erected by the defendant, at its outlet to Eldridge street, and to pay to the plaintiff damages for obstructing his use of such alley, as a passage for ingress and egress from and to the plaintiff’s lot.
    The defendant denied that the plaintiff had any right to use the alley, and set up title in himself in the alley in fee.
    The action was once tried in this court, and judgment was rendered for the plaintiff, but on appeal to the Court of Appeals, the facts proved were not deemed sufficient to establish a title to the alley or to the use thereof in the plaintiff, and a new trial was ordered.
    The case then came on for trial before Mr. Justice Bosworth without a jury. The facts proved appear by a condensed statement of his finding upon the evidence.
    The location of the plaintiff’s lot and of the alley, and also of the other lots bounding on the alley, is shown on a diagram as follows:—
    
      
      
    
    
      First. The lot known as No. 108 Division street, in the plaintiff’s complaint mentioned, together with lots 106, 110 and the alley-way, and also No. 8 Eldridge street, were owned by John Beekman for some forty years prior to and down to the time of his death, which occurred in December, 1844.
    He died intestate, and left him surviving, Mary Elizabeth, his widow, and six children, viz.: Catharine B. Fish, widow; Mary, wife of Wm. A. De Peyster; Jane, wife of Jacob H. Borrowe; Lydia, wife of Joseph Foulke; Wm. F. Beekman and John 0. Beekman, his only heirs-at-law.
    
      Second. In, the rear of said lot, No. 108 Division street, there was an alley-way, three feet .wide, extending from lot No. 110 Division street to Eldridge street, bounded on one side by lots numbered 110, 108, and 106 Division street, and on the other side by lot No. 8- Eldridge street. This alley-way was used by the tenants and occupants of 110 and 108. Division street and No. 8 Eldridge street, during the time said John Beekman owned said lots, and also after his death, until, in May, 1848, when it was closed by the defendant.
    While this alley-way was so used, there was a small wood tenement house on the rear of lot No. 108 Division street, the property of the tenant, the only access to and egress from which was through said alley-way, from and into Eldridge street.
    
      Third. By an indenture of lease, dated the 30th of April, 1845, executed by all the heirs of said John Beekman, deceased, as parties of the first part, and Ann Hunniford, widow, as party of the second part, the said parties of the first part demised to the said party of the second part, the said lot No. 108 Division street, for five years, from the first day of May next after its date. The said lease described the demised premises as bounded southerly, in the front, by Division street; northerly, in the rear, by an alley of three feet in width (for the use of- this lot in common with the other lot adjoining); easterly, on one side by lot No. 110; and westerly, on the other side, by lot No. 106 ; containing in breadth in front, on Division street, as the bevel runs, twenty-four feet seven inches; in the rear, along the alley aforesaid, twenty-one feet ten inches; and in length, on the easterly side, sixty-one feet; and on the westerly side seventy-five feet eight inches, be the same more or less, and contained the usual habendum, “ To have and to hold the said demised premises with the appurtenances,” etc.
    
      Fourth. The said Ann Hunniford, on the 13th of January, 1847, by an instrument in writing, signed by her and sealed with her seal, assigned the said lease and her interest by virtue thereof in the said demised premises to the plaintiff.
    
      Fifth. By a deed dated January 9th, 1847, and acknowledged the 11th and recorded the 14th of said January, the said widow of John Beekman, and all of his said heirs except Lydia Eoulke, conveyed to the said Lydia said lot 108 Division street, granting the premises conveyed in the following words of description :—
    “All that certain piece, parcel, or lot of ground situate and being in the Tenth Ward of the City of New York, on the northerly side of Division street, known as street number (108) one hundred and eight Division street, distant twenty-four feet and seven inches easterly from the easterly corner of Division and Eldridge streets, and running thence north-easterly in a straight line seventy-five feet and four inches to the southerly side of an alley-way three feet wide; thence south-easterly along the said alley-way twenty-one feet and ten inches; thence southwesterly in a straight line sixty-four feet and two inches to the said side of Division street; and thence westerly along the same twenty-four feet and seven inches, to the point or place of beginning. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.”
    
      Sixth. By a deed also dated January 9th, 1847, and acknowledged the 11th, and recorded the 14th of said January, the said widow of John Beekman, and all of his said heirs except the said Jane H. Borrowe, conveyed to the said Jane H. Borrowe said lot Eo. 106 Division street, bounding and describing it thus:—
    “ Beginning at the said easterly corner of Eldridge and Division streets, and running thence easterly along Division street twenty-four feet and seven inches; thence northeasterly, and parallel with the east side of Eldridge street seventy-five feet and four inches to the easterly side of an alley-way three feet wide; thence north-westerly along the same twenty-one feet and ten inches to the said side of Eldridge street, and thence south-westerly along the same eighty-six feet and six inches to the said easterly corner of Eldridge and Division streets, the place of beginning. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise Appertaining.”
    
      Seventh. By a deed also dated the 9th of January, 1847,'ac-knowledged the 11th, and recorded the 14th of said January, the said widow of John BeekmAn, deceased, and all the said heirs, except Mary De Peyster, conveyed the lot Eo. 110 Division street, and also the lot Eo. 8 Eldridge street, to John 0. Beekman, trustee, the material parts of the description of lot Eo. 110, being:—
    “Beginning at a point on the said side of Division street, distant forty-nine feét and two inches easterly from the easterly corner of Eldridge and Division streets, and running thence northeasterly and parallel with the easterly side of Eldridge street, sixty-seven feet two inches; thence southeasterly and at'right angles with the last-mentioned line, twenty-one feet two inches; thence south-westerly and parallel with said side of Eldridge street, fifty-six feet to the said northerly side of Division street; and thence westerly along the same twenty-four feet seven inches, to the point or place of beginning. Together,” etc.
    “ And as to lot No. 8, beginning at a point on the said side of Eldridge street, distant eighty-nine feet six.inches northeasterly from the easterly corner of Division and Eldridge streets, and running thence southeasterly on a line at right angles, or nearly so, with the said side of Eldridge street, sixty-five feet six inches; thence northeasterly and parallel, or nearly so, with the said side of Eldridge street twenty feet; thence northwesterly and at right angles, or nearly so, with the last-mentioned line sixty-five feet six inches, to the said side of Eldridge street; and thence southwesterly along the same twenty feet one inch to point or place of beginning. Together, etc.”
    
      Mghth. The said Borrowe and wife, on the 22d of June, 1847, mortgaged to John 0. Cheeseman the lot No. 106 Division street, to secure the payment of the sum of $3500, by precisely the same words and description as are contained in the deed of the same lot from the widow and heirs of said John Beekman, deceased, to the said Jane H. Borrowe.
    
      Ninth. The said Jacob H. Borrowe and his said wife, by a deed, dated the 25th of February, 1848, and acknowledged and recorded on the first of March, 1848, conveyed to the defendant Benjamin Albro, subject to the said mortgage, the lot No. 106 Division street, the material parts of the description being:— “ Beginning at the said easterly corner of Eldridge and Division streets, and running thence easterly along Division street twenty-four feet and seven .inches, thence northeasterly and parallel with the east side of Eldridge street seventy-five feet and four inches to an alley-way three feet wide, thence northwesterly along the same twenty-one feet and ten inches to the said side of Eldridge street, and thence southwesterly along the same eighty-six feet and six inches to the said easterly corner of Eldridge and Di-' vision streets, the place of beginning, subject, nevertheless, to the above mortgage, etc.”
    
      Tenth. By a deed also dated the 25th of February, 1848, and acknowledged and recorded on the 1st of March, 1848, the said Borrowe and wife “remised, released and quit-claimed” to the defendant Albro, all their right, title and interest in the said alley-way, which is described in the instrument as follows:—
    
      “ All the right, title, and interest of the said parties of the first part, of, in, and to a certain alley-way, described in a certain indenture, bearing date the ninth day of January, eighteen hundred and forty-seven, between Mary Elizabeth Hoad Beekman, of the said city, widow, of the first part, William F. Beekman and Catharine his wife of the second part, William A. De Peyster and Mary his wife of the third part, John C. Beekman. trustee of Mary De Peyster of the fourth part, John C. Beekman of the fifth part, Catharine B. Fish of the sixth part, Joseph Foulke, Jr., and Lydia his wife of the seventh part, and the said Jane Borrowe, wife of Jacob H. Borrowe, of the eighth part, and recorded in the office of the Register of the City and County of Hew York, in Liber 485 of Conveyances, page 274, January 14th, 1847, as 1 an alley-way three feet wide,’ and adjoining certain property on the easterly corner of Eldridge and Division streets, granted and conveyed by the said Jacob H. Borrowe and Jane his wife to the said Benjamin Albro, by deed bearing date herewith.”
    Said Foulke and wife, by a deed dated the 2d of March, 1848, and acknowledged and recorded on the 11th of said March, , conveyed to the plaintiff the said lot, Ho. 108 Division street, the premises thereby conveyed being described in such deed, in the same words as in the aforesaid conveyance thereof, to the said Lydia Foulke.
    In May, 1848, the defendant tore down the old building which stood on Ho. 106 Division street, and erected a new building thereon, and finished the same in the course of that season. He closed up the entrance to the alley-way, on Eldridge street, in May, 1848, and has kept the same closed since.
    Soon after the same was so closed, the occupants of the building on the rear of Ho. 108 Division street quit the same.
    While the defendant was rebuilding on the lot 106 Division street, the plaintiff made material alterations in the building in the rear of 108 Division street, and fitted it up for the manufacturing of candies, etc., and made an entrance to it from Division street.
    The uses for which he fitted and to which he applied the said rear building, made its use as valuable to him as the renting of it had previously been.
    The plaintiff made no complaint to the defendant at the time, on account of the closing of the alley-way, nor did he make any complaint of, or objection to such conduct, until at or about the time this action was commenced.
    The building on the rear of 108 Division street rented, prior to the closing of the alley-way, at the rate of about $125 per annum.
    By the closing of the alley-way the plaintiff was deprived of the use of this building, in the manner it had been previously used. He lost the use of it until he had altered it, and converted it to other uses.
    The damage sustained by the defendant-, if he is entitled to recover in this action, is seventy-five dollars, with interest thereon, from the commencement of this action, to this date, amounting, in all, to the sum of one hundred and six dollars and fifty-nine cents.
    On the foregoing facts, the Court found the following conclusions of law:—
    First.—The deed of the 9th of January, 1847, to Lydia Eoulke, from the other heirs and the widow of John Beekman, deceased, of lot Ho. 108 Division street, conveyed as an incident and appurtenance to the lot itself, a right to the use of the alley-way, as it had been, and was then used.
    Second.—The deed from Lydia Foulke and her husband to the plaintiff, of the same lot, conveyed to the plaintiff the same right.
    Third.—The plaintiff is entitled to a judgment against the de fendant for the said sum of one hundred and six dollars and fifty-nine cents, together with the costs of this action, and to a further judgment that the defendant remove from said alley-way all obstructions to the free use thereof, as it had been used prior to the 2d of March, 1848; and that he refrain from interfering or inter-meddling with the rights of the plaintiff to the free and unobstructed use thereof, in the manner and for the purposes for which it had been used prior to the time last aforesaid.
    The defendant duly excepted to the conclusions of law and the final decision.
    Judgment was entered for the plaintiff, in conformity with the decision ; and the defendant appealed to the General Term.
    
      
      Waldo Hutchins, for the defendant (appellant).
    I. The Judge erred in finding, as a conclusion of law, that the deed of the 9th of January, 1847, to Lydia Foulke, from the other heirs and the widow of John Beekman, deceased, of lot No. 108 Division street, conveyed as an incident and appurtenance to the lot itself a right to the use of the alley-way, as it had been and was then used. 1. No such right existed as a way 'of necessity. (Opinion of Selden and Johnson, Court of Appeals.) Neither did it exist by prescription founded on an adverse use of more than twenty years. 2. To warrant a presumption of the grant of an easement, the use of twenty years must have been continuous and adverse. (Colvin v. Burnett, 17 Wend. 564; Hart v. Vose, 19 Wend. 365.) 3. Neither did it exist by grant. (Opinion Judge Johnson, Court of Appeals.)
    II. The right could not have existed while the title to the lot and the alley-way was vested in the same person. (Coke Litt. 114, B.; Cooper v. Barber, 3 Taunt. R. 99 ; 2 Black, Comm. Ch. 11; Grant v. Chase, 17 Mass. 443 ; Opinions of Justices Selden- & Johnson, Court of Appeals; Jackson ex dem Yates v. Hathaway, 15 Johns. R. 447.)
    III. To entitle the plaintiff to a recovery he must show the creation of the easement upon some severance of, the ownership of the two tenements. (Opinion of Judge Selden.)
    TV". No existence of an easement in this case has been established. The deed to Mrs. Foujke describes the lot bounding it upon one -side “ along an alley-way,” while in the conveyances of lot No. 110 Division street and No. 8 Eldridge street, the tenants of all of which, together with those of No. 108, had had the use of the alley-way during the lifetime of John Beekman, the alleyway is not referred to.
    "V. General words,, such as “ appertaining,” “ belonging,” etc., are not sufficient to pass the right of way upon a severance of the tenements. (Whalley v. Thompson, 1 Bos. & P. 371; Kooystra v. Lucas, 5 B. & Ald. 830 ; Jackson v. Hathaway, 15 Johns. 447; Staple v. Hayden, 6 Mod. 1; Grant v. Chase, 17 Mass. 442.)
    
      H M. Ruggles, for the plaintiff (respondent).
    
      I. If the heirs of John. Beekman had conveyed the plaintiff’s lot, with its appurtenances, to a third person, the right to the continued use of the alley would have passed to the grantee. (Staple v. Heyden, 6 Mod. R. 1, 4; United States v. Appleton, 1 Sumnor, 492; Huttemeier v. Albro, Court of Appeals.)
    II. The deed from the other heirs and the widow of JohnBeek man to Mrs. Fonlke, had the same effect; and the conveyance from her and her husband to the plaintiff, gives him the same right, and entitles him to the unobstructed use of the alley.
    III. The judgment should be affirmed.
    
      
       Affirmed in the Court of Appeals, October, 1858. 18 N. T. R. 48.
    
   By the Court. Woodruff, J.

It is possible that the views expressed in the opinion given by Mr. Justice Selden, when this ease was before the Court of Appeals, and which are especially applicable to the case as now before us, might have been withheld, and yet the same judgment of reversal have been pronounced. In this sense a portion of his opinion may be deemed obiter.

But that opinion was written with a view to the new trial which was ordered, and was evidently intended as a guide to this court in the further conduct of the cause. And bearing this in mind, we ought, perhaps, to presume that the observations he made had the sanction of the other members of the court, although not specifically adverted to by Mr.. Justice Johnson in his opinion.

If, therefore, we did not concur in those observations, we should hesitate very much before coming to a conclusion, based upon opinions opposed to that which may properly be regarded as our guide to a new trial, and judgment.

But upon the whole case we concur with Mr. Justice Selden in the result at which that portion of the opinion to which we refer would have led him, had the case, as now developed, been before that .court.

We observe, however, preliminarily, that the Court of Appeals must be deemed to have decided, that the plaintiff herein has no right of way, by necessity, over or through the alley, the obstruction of which he complains of. So far as that question is involved, the case has not been altered in any material particular. Nor has he a right of way founded in prescription, nor on an adverse user. Nor could the right of way exist as an easement while the title to the alley, and the title to the several contiguous lots, was vested in the same person. No one can be said to have an easement in his own land. And where an easement has existed, it ceases when the title to the easement and the title to the land are united in the same person.

If, therefore, the easement exists, and is vested in the plaintiff, as the owner of one of the lots adjacent to the alley, it must have been created in some manner, subsequent to the death of John Beekman, who died seized of the whole of the premises in fee. But in determining whether or not the acts of John Beekman and his heirs were such that the conveyances by the heirs would operate, as between themselves and in favor of subsequent grantees, to create the easement and pass a right of way as an appurtenant to the several lots bounded thereon, the fact is of great importance, that the alley had been used as a way of ingress and egress to and from the several lots, for more than forty years prior to the death of John Beekman, in 1844, and continued to be so used until, and after the division of the property among his heirs, and thereafter, until the defendant, in 1848, made the obstruction which is the cause of the present action. And upon the rear of the lot now of the present plaintiff there was, during all this period, a dwelling house, the property of the tenant, the only access to and egress from which was through said alley-way from and into the public street, (Eldridge street) and the alley was used for such access and egress by the tenants and occupants of such house.

The opinion of Mr. Justice Selden, in the Court of Appeals, is explicit in regard to the effect and operation of such facts as these, followed by conveyances apt in form to transfer the right to a continuance of such a use.

He says:—“ The owner of several tenements may, of course, make such a disposition of their respective properties as he pleases. He may take, from either, any one of its qualities, or any use of which it is susceptible, and annex it to another; so that such quality or use shall become part and parcel of the latter, thus rendering the one tenement, pro tanto, subservient to the other; and there is no doubt, that where an owner has chosen thus to make an artificial distribution of the natural properties of" two tenements, making use of the one as subservient to the other —if, while this use and his ownership of both • tenements continues, he sell and convey the dominant tenement, with its appurtenances, there being, at the time, open and visible marks of such use, an easement, corresponding to the use, will be created, and will pass by the deed as an appurtenance. In this case, there was abundant proof of the use of the alley, in connection with the plaintiff’s lot, for many years, with the consent of the owner of both tenements, and an apparent continuance of this use, up to the time of the conveyance by Foulke and wife to the plaintiff, accompanied by the necessary outward and visible marks of such use. But it does not appear that Foulke and wife were the owners of the alley when they executed the deed. The ownership by them of both tenements, was, of course, essential to the

creation of the easement as an appurtenance, at that time.....

It may, however, have been created upon some previous severance of the ownership of the two tenements, as upon the partition of the premises between the heirs of John Beekman, in which ease it would have passed, by the deed of Foulke and wife, as appurtenant to the lot.......As against Foulke and wife, the

plaintiff has shown, I think, a clear right to the use of the alley; but, as against the other heirs of Beekman, or their grantees, he has shown none at all. If either the title to the alley itself, or a right to its use, in connection with lot 108, was conveyed to Foulke and wife by the partition deed, then such right passed as an appurtenance by the deed to the plaintiff.”

The application of these views to the case, as exhibited on the second trial, is quite obvious. The, title to the alley and the several contiguous lots, was in the heirs of John Beekman; their deed to Mrs. Foulke is now produced, and is in the very words of the deed afterwards executed by Foulke and wife to the plaintiff. The latter deed, in connection with the previous user, and the continued outward and visible marks of such use, is, in the opinion quoted, deemed sufficient to have vested in the plaintiff the right of way, had Foulke and wife then owned both the alley and the premises described.

By the same rule, the conveyance by the heirs, who did own both, must, in connection with the same extrinsic facts, be deemed to vest in Mrs. Foulke the right to the use of the alley, as an appurtenant to the premises granted; and the same, therefore, passed to the plaintiff, by the conveyance of the latter to him.

We are not inclined to rest this view of the effect of the deed to Eoulke and wife, upon the mere force of the word “ appurtenances,” in that deed. The right of way did not exist, as an easement, so long as the title to the lot (108) and the alley were both vested in the heirs of Beekman; and if the alley was not mentioned or referred to in the deed, in any manner other than by the word “appurtenances,” we should deem it at least doubtful whether the Court of Appeals intended to hold, that the previous .use of the alley had so detached it from the other lots, or attached it to the plaintiff’s lot, that it would pass by the mere force of that term. (1 Bos. & Pul. 371; 5 Barn. & Aid. 830; 1 Taunt. 206.)

But the conveyance to Eoulke and wife, describes the premises as'running “along the said alley-way.”

In Herring v. Fisher, (1 Sand. S. C. R. 344,) such terms were held to be sufficient to convey the fee to the centre of the road; and it was also held, that even if the point whence the boundary run along the road, was described as “ at the side of the road,” (as, in the case before us, the precise line is described as running to the easterly side of the alley,) the same construction would prevail. And see Badeau v. Mead, & Holmes, (14 Barb. 328;) and also, Sizer, et ux, v. Devereux, (16 Barb. 160,) and cases cited in these cases, respectively. (Smiles v. Hastings, 24 Barb. 44.)

It is sufficient for the purposes of this case, that, by the deed from the heirs of Beekman, Eoulke and wife obtained the right to use the alley, as such.

The judgment should be affirmed.  