
    John H. Howe, Resp’t, v. Juliette Bell et al., as Executors, etc., App’lts. Juliette Bell et al., as Executors, etc., App’lts, v. John H. Howe, Resp’t.
    
      (Court of Appeals,
    
    
      Filed October 9, 1894.)
    
    Easement—Creation.
    A grantee of a lot has no interest' in a right of way, subsequently ere ated by his grantor out of an adjoining lot and made appurtenant to the latter, but not to the former, lot.
    Appeal from a judgment of the fifth department of the general term of the supreme court, affirming judgment for plaintiff in the first, and for defendants in the second, action.
    
      John Van Voorhis, for app’lts; Nathaniel Foote, for resp’t.
   Bartlett, J.

The executors and widow of Alfred Bell, deceased, are the appellants in two actions which were argued together in this court. The object of these litigations is to determine the title to an alley 15 feet in width and about 160 feet in depth, lying between the residence of the late Alfred Bell and the residence of Joseph H. Howe, in the city of Bochester. In September, 1889, Bell brought an action against Howe to restrain defendant from trespassing on the disputed land. In July, 1890, Howe sued Bell in'ejectment to recover the premises in question. Both cases were referred and tried together, and resulted in a judgment dismissing the complaint in Bell against Howe, and a judgment for the plaintiff in Howe against Bell. Appeals were taken, and the general term affirmed both judgments. Pending these appeals, Alfred Bell died, and his executors and widow were duly substituted in each action as parties.

In affirming the judgments below, we might well rest satisfied with the opinion of the learned general term, but, in view of the elaborate briefs and arguments of counsel, we will briefly consider the controlling points in this controversy. Alfred Bell sought to establish a paper title to the disputed strip of land, and, failing in that, he insisted that he and his grantors had been in adverse possession for more than twenty years. The finding of the referee that Bell and his grantors did not occupy the dis■puted strip adversely for more than twenty years is sustained by the evidence, and is binding upon this court. It follows, therefore, that unless Bell established a paper title the judgments below must be affirmed. The material facts are as follows, viz.: In May, 1853, one William E. Arnold became the owner of a tract of land in the city of Rochester, subsequently designated by him as the “Arnold Tract,” which included the land in controversy and the premises of the two litigants. This tract was bounded on the west by Meigs street, on the north by East avenue, and on the east by Goodman street. Bell’s premises are located at the southwest corner of East avenue and Goodman street, and Howe’s premises front on Goodman street, and adjoin Bell’s land on the south. The disputed land lies between these two properties... On or about the 28th of July, 1853, Arnold caused to be made and filed in the Monroe county clerk’s office a map of his tract, above referred to, showing his subdivision thereof into lots, and the location and dimensions of each lot. This map is in evidence, and shows Bell’s premises as lot No 4 and Howe’s premises as lot No. 20. This map is dated July 28, 1853, and must have been filed before August 1, 1853, as Arnold conveyed on the latter day lot No. 4 on said map to George G. Buell, and referred to the map as on file. The south line of lot No. 4 was described as the north line of lot No. 20. The map shows lot No. 20 to be 90 feet front on Goodman street, which includes therein the disputed strip, for, if Bell’s claim were allowed, lot No. 20 would be only 75 feet on Goodman street. It is, therefore, absolutely certain that Arnold’s deed to Buell of lot No. 4 conveyed no portion of the disputed strip. On the 28th of 'September, 1853, Arnold made and filed a second map, upon which he indicated the alley in question across lot No. 20, on the northerly side thereof, from Goodman street to its rear, and 15 feet in width, and also an alley across the rear of lot No. 20, and of other lots fronting on Goodman street, and connecting with the alley on the north side of lot No. 20. On the same day, Arnold recorded an instrument under his hand and seal, in which he declared, among other things, that the passageway indicated upon the map represented an alley for the use of the owners of certain lots specified, lot No. 20 being named; but lot No. 4 was omitted, as Arnold had already sold it to Buell. This deed of dedication is significant in three aspects: It shows that the laying out of the alley on the second map was a mere easement for the benefit of lots designated therein; that lot No. 4 was excluded from said benefits, as it was no longer owned by Arnold; and that the first map, filed in July, 1853, was the basis of the second map, and recognized the location and dimensions of the lots laid out thereon. In 1865 the title of Buell, by mesne conveyances, became vested in Sarah H. Van Epps, the immediate grantor of Bell, by the description that Arnold conveyed to Buell. In 1870 Sarah H. Van Epps and husband conveyed lot No. 4 to Alfred Bell by warranty deed, and on the same day they executed and delivered to Bell a quitclaim deed of the alley or strip in question. This constitutes the paper title of Alfred Bell. These record facts show conclusively that Alfred Bell had no legal title to the land in dispute, and that his quitclaim deed from Mrs. Yan Epps was mere waste paper. The fact that she did not include the alley in her warranty deed is most significant. The title of John H. Howe to lot No. 20 is fully established. It is clear that the legal effect of Arnold’s deed of dedication was to impose only an easement on lot No. 20, and did not reduce or change its original frontage of 90 feet on Goodman street. At the time Arnold laid out his tract in question, lot No. 20, with others, was subject to a mortgage subsequently foreclosed ; and on the 28th of December, 1859, the referee deeded lot No. 20, by reference to the second map, the legal effect being to convey this lot with 90. feet frontage on Goodman street. What effect this conveyance had on the easement sought to be created by Arnold it is not necessary to determine at this time, as the legal representatives of Bell and his widow have no interest in the matter. This foreclosure title, by several mesne conveyances, was vested in Howe April 16, 1889. In October, 1857, Arnold made a general assignment for the benefit of his creditors; and Howe, by mesne conveyances, became vested April 16, 1889, with any title Arnold may have had in lot No. 20 at the time of his general assignment. It is clear that Howe’s title through the foreclosure proceedings was perfect, and that the equity of redemption, if it passed to Arnold’s assignees, was cut off. The fundamental error in the argument urged to sustain the Bell title is in assuming and insisting that the second map (Exhibit 2), showing the alley already referred to, changed the line between lots No. 4 and No. 20, was in existence on August 1, 1853, and was referred to by Arnold in his deed of that date to Buell, conveying lot No. 4. An examination of the two maps in connection with Arnold’s dedication deed of September 28, 1853, demonstrates that the only map on file August 1, 1853, was Exhibit 13 in this case, which fixed the frontage of lot No. 20 on Goodman street as 90 feet. The fact that the second map, laying out the alley, puts the frontage of lot No. 20 at 75 feet and that of the alley at 15 feet is of no importance, as it was a mere mode employed to express the width of the strip over which the easement was created. The mortgage on lot No. 20 covered the entire frontage of 90 feet, and that title is vested by the foreclosure in Joseph fi. Howe.

Having established the existence of the maps in the order pointed out, the argument in support of Bell’s paper title falls to the ground. The evidence furnished by the maps and dedication deed of William E. Arnold was supplemented by the evidence of William E. Arnold’s son, Hobart G. Arnold, the former being dead at the time of the trial. This witness swore that the maps were made and filed in the order as above indicated. This evidence was objected to as incompetent, under § 829 of the Code of Civil Procedure, on the ground that the father of the witness was the common grantor of Bell and Howe. The facts already discussed establish that Bell took no title from Arnold of the land in dispute. The exceptions to the findings of the referee are disposed of by the views we have expressed, and the further' fact that the findings against adverse possession are sustained by the evidence. Many of the exceptions to the admission and rejection of evidence are rendered immaterial for the same reason. A large number of questions were asked Bell that called for his conclusions. The referee repeatedly ruled that witness was at liberty to state the facts. We find no reversible error in his examination. There are no other exceptions in the case requiring special mention. The judgment, should be affirmed, with costs.

All concur, except Andrews, C. J., not sitting.

Judgments affirmed.  