
    Catherine A. Hennessy, App'lt, v. Archibald R. Murdock, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1893.)
    
    
      1. Easements—Lane—Abandonment.
    S. in 1835 owned the entire square, and divided it into building lots and filed a map on which there was a public lane, one rod in width, running through the block. S. first conveyed defendant’s lot with right of way of the lane, and thereafter plaintiff’s lot bounded by said lane. Held, that plaintiff’s deed operated as a conveyance to her of half the lane adjacent to her lot, with the right of passage in common with defendant in the whole lane, and defendant had no right to enter upon it except for passage, and his erection of a fence tnereon was a trespass for which the plaintiff was entitled to recover, unless plaintiff’s title had been extinguished by an. adverse holding, and the nonsuit of plaintiff on the ground that she had. failed to prove title to the locus in quo was error.
    2. Same—Abandonment.
    There is no inflexible rule of law which requires the owner of an easement, such as a lane or alley, to walk or drive over the passageway in order to save his title from extinguishment.
    Appeal from judgment of the supreme court, general term, fifth department, denying motion for new trial on exceptions-taken at circuit.
    
      John D. Teller, for app’lt;
    
      L. A. Pierce, for resp’t.
    
      
       Reversing 43 St. Rep., 748.
    
   Maynard, J.

We think the plaintiff and defendant each has title to the fee of the land to the center of the lane in controversy, subject to an easement or common right of passage in the whole lane. Both titles have their source in James T. Smith, who in 1885, owned the entire square, bounded on four sides by public streets, which was then unimproved. He employed one Clark, a surveyor, to subdivide the plot into lots, numbered from one to twenty-nine inclusive, and to make a map of the plot, as thus subdivided, which, he filed in the county clerk’s office. Upon this map there was a public lane or alley laid out, one rod in width, extending from Washington to Jefferson street through nearly the centre of the plot, and upon which all the lots abutted.

Smith first conveyed the defendant’s lot No. fifteen, describing it as surveyed and marked on the map, making the southern boundary a line running from Washington street westerly one hundred and thirty and two-thirds feet on an alley, and concluding with the following paragraph: “Together with the right of way of the alley aforesaid, which is forever to be kept open for the use and benefit of the lots to which it is adjacent; said alley being one rod in width and extending from Washington to Jefferson streets, as laid down on the map before mentioned." The next year Smith conveyed No. sixteen, part of which is now owned by the plaintiff, in which reference is made to the lot as numbered and marked upon the map on file in the county clerk’s office, and the northerly line is described as running from Washington street, “ thence two hundred and three feet and one-third, of a foot along an alley, etc.” In ajl the intermediate conveyances of both parties reference is made to this map in describing and locating the premises conveyed. In the defendant’s deeds the lane or alley is always mentioned; in one in the exact words of the first conveyance by Smith; and in others as bounded on the south side by a one rod lane or alley, according to the map on file, or by a public lane.

Both parties being in privity of title with Smith are estopped by the recitals and descriptions in the conveyances from him, so far as they relate to the estate conveyed, and under the repeated decisions of this court it must be held that the plaintiff’s deeds operate as a conveyance to her of the fee of the southerly half of the lane adjacent to her lot, with the right of passage in common with the defendant in the whole lane. Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. Same, 36 id., 120; In re Ladue, 118 id., 220; 28 St. Rep., 821; Haberman v. Baker, 128 N. Y., 259; 40 St. Rep., 104; City of Buffalo v. Pratt, 131 N. Y., 298; 43 St. Rep., 278. The correctness of this conclusion is not disputed, except upon a single ground The title to the whole of lot sixteen vested in one William. Hosmer in 1865. The lot was then vacant, and in 1881 he conveyed the part now owned by plaintiff to Maria L. Irish, describing it as a part of lot Ho. sixteen on a map made by James T. Smith, and filed in the clerk’s office of Cayuga county, April 24, 1835, with a specific boundary, beginning at the northeast corner of Ho. sixteen, on the west line of Washington street, and running from thence westerly along the north line of the lot two chains. The north line is the line along the lane, and it is insisted that this description did not include the fee of one-half the lane, but that the title thereto remained in Hosmer, and that as the plaintiff must rely upon the strength of her own title, she must fail in this action. But we cannot distinguish this case from the Bissell case and other kindred authorities upon this point. It was there held that as between grantor and grantee the conveyance of a lot bounded upon a street in a city carries the land to the centre of the street, and that there is no distinction in this respect between the streets of a city and country highways, and that the rule applies although the conveyance contains no reference to the street by name, but the lot is described by the number according to an allotment and survey made by the original proprietor, upon whose map this lot is represented as abutting upon a street, and the depth of the lot is stated by figures which would not include any part of the street. This construction has so long prevailed that it has become a rule of property, and it is founded upon the presumed intent of the parties to the conveyance. It is not reasonable to infer that the grantor intended to reserve the title to the fee of the narrow strip lying between the physical boundaries of the lot conveyed and the centre of the street, or that the grantee understood that any such reservation had been made. The use of the fee of the bed of the street is so inseparably connected with the ordinary use of the adjacent lot that a severance of the two will not be deemed to have been effected unless the presumption that the grantor intended to pass title to the centre of the street is rebutted by other parts of the deed and by the condition and relation of the parties to the lands conveyed and other lands in the vicinity. Mott v. Mott, 68 N. Y., 246.

There is nothing inconsistent in the Hosmer deed with this presumption, but its provisions are in harmony with and support it There is an express reference to the Clark map for the purpose of ascertaining the boundaries of lot sixteen. An examination of that map discloses that the boundaries of the lot carry it to the centre of the lane, so far as it effects a conveyance of the fee, but that the title to a strip eight feet in width on the northerly side of the lot is burdened with an easement for the benefit of the other property holders abutting on the lane. The right to the exclusive possession of the remainder of the lot is conveyed, and to the possession of the strip subject to the easement. The specific description which makes the point of beginning, the northeast corner of the lot as shown upon the map, is the point where the southerly boundary of the lane intersects Washington street, and the line which- is described as running westerly along the north line of the lot, as it appears upon the map, is equivalent to a location of the line along the lane, and is quite as effective to include the fee of one-half of the lane as if it had in terms so stated. The reservation of the fee of the south half of the lane by Hosmer was not necessary for the purposes of access to the rear of lot sixteen, which was retained by him. The portion of the lot not conveyed by him also abutted on the lane, and he had a common right of passage over it with the other abutting owners, which would afford all the means of access necessary for the full enjoyment of the premises retained by him. The title to the lands embraced in the boundaries of the lane between lots fifteen apd sixteen is not affected by the acts of the lot. owners abutting on the lane to the westward in fencing in the lane so as to include one-half thereof within each adjoining lot. This is evidence that the lot owners understood that by virtue of their respective conveyances from Smith each acquired the title to the fee to the centre of the lane, but it cannot operate to divest Hosmer, or his grantee, of his title to the south half of the lane adjacent to lot sixteen. The intention to leave the lane as an existing passageway between these two lots might be inferred from the omission to fence it in so as to include one-half thereof in each lot, as the other lot owners had done. It was at least as consistent with such an intention as with the intention to close it and leave a narrow strip eight feet on the northerly side of plaintiff’s lot, still the property of Hosmer. That there was an existing lane between these two lots when Hosmer conveyed to Mrs. Irish, April 9,1881, is further evidenced by the deed under which defendant claims title, executed six months later, in which his lot is described as bounded “ on the south by a public lane.”

The plaintiff, therefore, established a legal title to the fee of the south half of the lane. The defendant had no right to enter upon it except for the purpose of passage, and his erection of a fence thereon was a trespass for which the plaintiff was entitled to recover in this action, unless the plaintiff’s title had been extinguished by an adverse holding, which is interposed as a defense. But this issue was not tried, as the plaintiff was nonsuited, when she rested her case, upon the ground that she had failed to prove any title to the locus in quo, or any constructive, or actual, possession or occupancy thereof or right thereto, at the time of the alleged trespass. Sufficient had been shown to cast upon the defendant the burden of a defense, and the granting of the nonsuit was error. The plaintiff also sought to recover because the defendant had unlawfully interfered with her use of the north half of the lane as a passageway, and she was nonsuited upon this branch of her case, upon the ground that if any easement at any time existed in the owner of lot sixteen, in or to the lane, it appeared from the evidence of her witnesses that such easement was abandoned long prior to the conveyance to Mrs. Irish, and being once abandoned, was extinguished forever.

From the evidence given by plaintiff’s witnesses, we do not think it can be correctly said that there' was, as matter of law, an abandonment by the owner of lot sixteen of his easement in, or right to use the lane as a passageway. The question of abandonment is, ordinarily, one of intent, and in this case we do not think such intent so clearly and conclusively appeared that the plaintiff was not entitled to have its existence passed upon by the jury. The defendant mainly relies upon the failure of the plaintiff to show that Hosmer made use of the lane during the sixteen years that he owned the entire lot, or from 1865 to 1881. But the plaintiff was not required to show user by her grantor. Her right to the easement was obtained by grant, and if the defendant relied upon an abandonment by her grantors to defeat the operation of her conveyance, it was matter that should have been pleaded and proven as a defense. But three witnesses were examined on the part of the plaintiff. Only one of them was acquainted with the premises during the time they were owned by Hosmer.

His failure, upon cross-examination, to recall any use which Hosmer made of the lane, can hardly be deemed sufficient in law to establish an abandonment. Hosmer did not even live on the lot, and it was practically vacant. It may well be that he had no occasion to use it. It is shown by one witness that while Hosmer owned it there was a barway with bars in the fence bordering on the lane, so that he might use it whenever it was convenient or desirable. We know of no inflexible rule of law which requires the owner of an easement of this kind to walk or drive over the passageway at stated intervals, in order to save his title from extinguishment. There was evidence that at one time a double gate had been maintained at the Washington street end of the lane, and that it had been removed in 1882. How long it had existed does not appear; but if for a sufficient time to establish a prescriptive right to its maintenance, it would not, of itself, work an ex-tinguishment of the easement, but only abridge its use to the extent of its interference therewith.

We have examined the authorities to which the respondent’s counsel refers, but they do not sustain the holding of the court below, but rather the reverse. They are all to the effect that where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such, which proof is wanting in this case as it is presented upon the record before us. Crain v. Fox, 16 Barb., 184; Corning v. Gould, 16 Wend., 545; Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611. The recent case of Woodruff v. Paddock, 130 N. Y., 618; 42 St. Rep., 650, merely holds, upon this point, that an easement may be lost by an adverse possession of twenty years; a proposition indisputably sound, and of which the defendant may have the benefit, if he can establish his defense of that character. The defendant did not purchase this lot relying upon an apparent abandonment of the easement by the owner of lot sixteen.

His deed recognizes the existence of the lane, and describes his lot as bounded upon it, and his right of property in the lane' is burdened with whatever easement may be lawfully imposed upon it.

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

All concur.  