
    MARY A. KING v. THE TRUSTEES OF ST. PATRICK’S CATHEDRAL, Impleaded, &c.
    
      Decided June 16, 1884.
    
      Conveyancing—implied covenants—description bounding land by closed highway —right to award of damages for closing highway.
    
    A. conveyed to B. certain premises by warranty deed containing the usual covenants, and describing the premises as bounded by the side of a certain road, which had been theretofore closed as a public highway by act of law, the deed granting all the right, title and interest if any of A. in so much of the said road as was adjacent to the premises conveyed. Thereafter an award of damage for the closing of said road as a public highway, was made.
    
      Held, that said award belonged to A.
    That B. is presumed to have receive his deed with "knowledge of the closing of said road and to have paid for the property its value with the road closed.
    That as there was no express covenant giving B. an easement in and right of way over said road, none can be implied.
    That the mere mention of the road in describing the property conveyed, was not such a statement of its actual existence as a road, as to make the grantor liable for damages.
    That the injury was done when the road was declared closed and became a personal right to damage belonging to the owner of the fee at that time, and not to the owner of the fee when the award was made.
    That the words “tenements, hereditaments, and appurtenances” in the deed, did not convey the grantor’s right to these damages.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    
      Questions submitted to the court upon an agreed state of facts, under section 1279 of the Code of Civil Procedure.
    On April 25, 1871, Edward King and William Henry-King were the owners in fee of certain lots of land situate on the Bloomingdale road, between Ninety-sixth and Ninety-seventh streets, in the city of New York. On that day this property was conveyed by them by deed, containtaining the usual covenants, to Richard Brennan. Bloomingdale road was closed in March, 1868, under the provisions of chapter 697 of Laws of 1867 ; and at the time of the closing, such property was owned by said Edward King and William Henry King. The award for the damage caused by closing Bloomingdale road was made in December, 1880. The amount awarded for damage to the lots- so conveyed to Brennan was $7,865. The plaintiffs have succeeded to rights of Edward and William Henry King, and the defendants above mentioned, have succeeded to the rights of Richard Brennan.
    The lots in the deed to Brennan are bounded in front by the easterly side of the Bloomingdale road. The deed also conveyed to said Brennan all the right, title and interest of the grantors, “ if any, in and to so much of the land laid down on said map as Tenth avenue and Ninety-sixth and Ninety-seventh streets, and Bloomingdale road, as is adjacent to the land and premises,” conveyed to said Brennan.
    The matters in controversy were submitted in the following questions:
    1. Are the plaintiffs, Mary Augusta King, as executrix and trustee under the last will' and testament of Edward King, deceased, and David King, Jr., as committee of the estate of William H. King, a lunatic, entitled to said award? 2. If Mary Augusta King as executrix, &c., and David King, Jr., as committee, &c., are not entitled to said award, are the defendants, The Trustees of .St. Patrick’s Cathedral, entitled to said award? -3. Does the deed from Edward King and wife to Richard Brennan, dated April 25, 1871, contain or have any covenant or representation upon, or by reason of which, the plaintiff, Mary Augusta King, as executrix under said last will of Edward King, is now liable in damages to the trustees of St. Patrick’s Cathedral, for or by reason of the previous closing of said Bloomingdale road as aforesaid ? 4. Does the deed from Edward King, as committee, &c., to Richard Brennan, dated April 25, 1871, contain or have any covenant or representation upon, or by reason of which the plaintiff, David "King, Jr., as committee of the estate of William H. King, is now liable in damages to said trustees of St. Patrick’s Cathedral, for or by reason of the previous closing of said Bloomingdale road, as aforesaid ?
    
      James A. Peering, for plaintiff.
    I. The road was closed March 8, 1868, when the map of the Central Park Commissioners was filed omitting it (chap. 697, Laws 1867, § 3 ; Fearing v. Irwin, 4 Daly, 385). The damage or injury by the closing was then done (at the closing), and became a personal right to damages, for which the act provided a remedy. By the very terms of the act the road was then closed as a public road, and the damages provided for, are for the injury done by such closing (Pentz v. Mayor, 24 Wend. 668; Hatch v. Mayor, 43 Super. Ct. 426). The right to the damages in such cases, although not ascertained or allowed, will not pass by the deeds executed subsequently to the closing (Schuylkill Nav. Co v. Decker, 2 Watts Penn. 343 ; McFadden v. Johnson, 72 Penn. 335 ; Arthurs v. Penn. R. R., 27 Leg. Int. 237; Tenbrook v. Jakke, 77 Penn. 392).
    II. The claim must be based upon some specific covenant. There can be no claim upon any implied covenant (R. S. 2d ed, 689; Canaday v. Stiger, 3 J. & S. 423). There is no specific covenant or statement as to the .existence of said road as a public road in the deed. The reference to the road is in the general description only, and is used for the purpose of description and as one of the boundaries. This does not amount to a covenant or representation. It does not .attempt to or in terms convey an easement (Wheeler v. Clarke, 58 N. Y. 267; Howe v. Alger, 4 Allen [Mass.] 206 ; Hennessy v. O. C. & N. R. R. Co., 101 Mass. 540).
    The act made the filing of the map constructive notice of the action of the Central Park Commissioners (Wheeler v. Clarke, 58 N. Y. 267). Parties are presumed to contract in reference to the condition of the property as it is at the time of sale (Summers v. Bloonan, 47 N. Y. 3; Lampman v. Milks, 21 Id. 505).
    Nor did the words of description amount to the grant of an easement to Brennan which the grantors could not "convey, and for failure of title to which they are liable under any covenant in the deed. Since the Revised Statutes no right of way or easement is created by mere description of a lot bounding it on a street. There must be an express covenant or grant. All of the early cases wherein it has been held that by bounding upon a street" the grantee of a lot took an easement or right of way over'such street, were put upon the common law rule that such description constituted an implied covenant that there was such street or right (Kent’s Comm. 432).
    III. If the Revised Statutes have not. abolished the doctrine of dedication by abolishing implied covenants, then the description used in the deeds to Brennan at most constitute the grant of an easement in the parcel referred to as to a road, as between the grantors and grantee only. Where a grantor in his deed conveys, fronting on a street which the public authority has not laid out or accepted, the grantee at most can only claim a private easement or right of way. Such dedication is not public, and no right to the use thereof by the general public is given (Cox v. James, 45 N. Y. 557; Bissell v. N. Y. C. R. R., 23 Id. 61; Perrin v. N. Y. C. R. R., 36 Id. 120).
    This private right created in 1871 was not affected in any .manner by the previous closing of the road by the Central Park Commissioners as a public road or highway of the city.
    
      The award in question was made for the damage done by-closing the road asa public road of the city.
    Neither Brennan or his grantees could maintain an action to have the road kept open as a public road (Underwood v. Stuyvesant, 19 Johns. 181).
    
      Charles E. Miller, for defendants.
    I. It was the intent of the conveyances to transfer the right to damages thereafter to be ascertained and paid: (a) The ordinary effect of the description bounded by the easterly side of the Bloomingdale road would be to convey an easement and right of way over the road (In re Mayor, 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Cox v. James, 45 Id. 557). But as the road was closed by law no such easement or right could be granted, and we must give effect to the description, by holding that it transferred the equivalent, to wit, the right to the then unascertained damages. (&) The right to damages was appurtenant to the land conveyed, and was transferred by the use of the words, “ tenements, hereditaments and appurtenances.” The continuous right to use the street was clearly appurtenant to the g¡ ant of the land. If such right did not pass, then its substitute, to . wit, the right to the damages was granted.
    II. The covenant of warranty in the deed from Edward King to Brennan was broken by the fact that Bloomingdale road had been closed.
    III. That injury resulted from the closing of the road is res adjudícala, by the award.
    IV. The fund representing the damage to the premises by reason of the non-existence of the road being in court will be administered by it in equity according to the equitable rights of the parties (Underwood v. Stuyvesant, 19 Johns. 181). The easement in a street bounding the premises is of value and cannot be taken without compensation to the owner of such easement, even though other accesses remain to the premises (Re Mayor, 1 Wend. 262 ; Matter of Lewis street, 2 Id. 472; Livingston v. Mayor, 8 Id. 85).
    As between plaintiffs and defendants the Bloomingdale road was and is a street. If by reason of superior right to either, the city can claim that it is closed upon payment of damages, such damages are payable inter partes to those who are the’only parties injured by its closing, and who have the only interest in desiring that it should remain open (Bissell v. N. Y. Cent. R. R. Co., 23 N. Y. 61 ; Matter 11th Avenue, 81 Id. 436; see also Cox v. James, 45 ld. 557; Wiggins v. McCleary, 49 Id. 346 ; Taylor v. Hopper, 62 ld. 649).
    V. Plaintiffs having conveyed the lots, describing them as bounded by a road, are estopped to deny that such a road existed, or that the grantor might use the same, and such estoppel is as effectual as a warranty (3 Washburn Real Estate, 467). And the right to use the road in case of such an estoppel implies and embraces the right to everything ■ issuing out of such use, to wit: payment for deprivation of such right (Parker v. Smith, 17 Mass. 413; Emerson v. Wiley, 10 Pick. 310; O’Linda v. Lothrop, 21 Id. 292 ; Tuft v. Charlestown, 2 Gray, 271; Thomas v. Poole, 7 Id. 83 ; Farnsworth v. Taylor, 9 ld. 162; Rodgers v. Parker, 9 Id. 445 ; Stetson v. Dow, 16 Id. 372 ; Gaw v. Hughes, 111 Mass. 296).
    VI. So far as appears neither party knew of the closing of the l’oad at the time of the conveyances. It was not closed by direct operation of law but by acts of commissioners, dehors, by filing maps, etc. (ch. 697, Laws 1867, § 3). Bad faith in describing the lots as bounded by the Bloomingdale road will not be imputed, but, on the contrary, it will be implied that each of the parties supposed that the Bloomingdale road existed at this point.
    Equity will apply the maxim nemo debet locupletari ex alterius incommodo (Story Eq. Jur. § 1234; Broom's Maxims, 124; Dig. Cor. Juris. Civilis, lib. 50, tit. 17, 1 200).
   By the Court.—Truax, J.

At the time of the conveyance by Brennan, Bloomingdale road was closed as a public highway by authority of law. He is presumed to have received his deed with knowledge of this fact, and to have paid for the property conveyed to him its value with the road closed. There is no covenant expressed in the deeds to him—and one cannot be implied—that would give him an easement in and right of way over said road, and it cannot be said that the mere mention of the road in describing the property conveyed, was a statement of its actual existence as a road, upon which the grantors are liable for damages.

The third and fourth questions are answered in the negative.

The injury was done at the time Bloomingdale road was declared closed, and then became a personal right to damages. This right belonged to the then owner of the fee, and not to the owner when the award was made. The use of the words ‘‘tenements, hereditaments and appurtenances,” in the conveyances to Brennan did not pass to him the right to these damages (Hatch v. Mayor, 43 Super. Ct. 436).

The first question is answered in the affirmative, the second is answered in the negative.

Judgment is awarded to the plaintiff, for the sum of $7,865, with interest from April 8, 1881, as stipulated.

Sedgwick, Ch. J., and O’Gorman, J., concurred.  