
    Lucy B. Mitchell, Appellant, v. David L. Einstein and Caroline Einstein, his Wife, Respondents.
    
      Bloomingdale road, New Torh city &emdash; the release by owners of abutting land in 1795 of land therefor conveyed the fee and not an easement &emdash; it covered the old road as well as the extension&emdash; an easement was acquired under the act of 1703 and a fee under the act of 1787 &emdash;power of the Legislature to vest the title thereto in the abutting owners&emdash;presumption that it was narrowed as directed by law&emdash;reversion of abandoned part to abutting owners &emdash; description by lot numbers on a sale in partition &emdash; it conveys to the center of a road on which the lots abut&emdash;the fee of the road may be excluded and remain in the grantor&emdash; a right of re-entry passes only to the heirs of the original grantor&emdash;a purchaser at a partition sale is not estopped to acquire a paramount title.
    
    Where, in an action brought to partition certain premises, a map is filed in which the premises are subdivided into lots abutting upon a road, and the convey-ances at the sale describe the premises conveyed by lot numbers and as bounded easterly by the road, the purchasers at the sale become vested with the fee to the center of the road, if the person whose property was partitioned owned the fee of such road.
    If a purchaser at the partition sale subsequently conveys the lots purchased by him by a conveyance which specifically bounds the premises by the westerly line of the road, the title to the fee to the center of the road will not pass to the grantee but will remain in the grantor.
    It will be presumed that the duty imposed by the colonial act of 1751, of nar-rowing Bloomingdale road in the city of New York from its original width of four rods to two rods was duly performed, and that the abandoned two rods reverted to the abutting owners freed from the public easement.
    
      Semble, that while, under the colonial act of 1703, under which Bloomingdale road was originally laid out, the city could acquire only an easement in the land embraced in the road, it could, under chapter' 61 of the Laws of 1787, acquire the fee of the road.
    Under the release executed in 1795 to the mayor, aldermen and commonalty of New York by James Striker and others, the owners of land abutting on Bloomingdale road, for the purpose of enabling said road to be widened to the width of four rods, which release provided as follows: “ each of them doth for himself, his heirs and assigns, hereby grant, release and forever quit claim unto the said Mayor, Aldermen and Commonalty of the City of New York and their successors, all that the parcel of their respective lands or so much thereof as may be neces-sary for the said road of the breadth of four rods as aforesaid to have and. to hold the said parcel of the said respective lands or so much thereof as may be necessary for the said public road as aforesaid with the appurtenances unto the said Mayor, Aldermen and Commonalty of the City of New York and their successors to and for the sole and only use of a public road forever,” the city of New York acquired the fee of the land covered by the release.
    Even if the conveyance should be construed as a grant upon condition by which the city’s title would be forfeited upon a discontinuance of the road, the right of re-entry could only be exercised by the heirs of the grantor and could not be-exercised by a mesne grantee of the abutting premises.
    Such conveyance is not void for indefiniteness, and was manifestly intended to grant the lands desired for the highway both as to the old part and as to the extension.
    It is competent for the Legislature, on discontinuing a public street or highway, to transfer the public rights and title to the abutting owner in satisfaction or mitigation of his damages, and such is the legal effect of chapter 697 of the Laws of 1867 providing for the discontinuance of a portion of Bloomingdale road in the city of New York.
    The Legislature, however, may not, in such a case, vest in the abutting owners any greater title than that vested in the public.
    A grantee of the purchaser at a partition sale of premises abutting upon a highway is not estopped from subsequently acquiring the fee to the roadbed from one holding paramount title to such fee who was not a party to the partition action, even if the premises were partitioned on the erroneous assumption that the parties thereto did have title to such fee.
    Appeal by the plaintiff, Lucy B. Mitchell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of April, 1904, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.
    
      David B. Ogden, for the appellant.
    
      George W. Seligman, for the respondents.
    
      
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   Laughlin, J.:

This is an action under section 1638 of the Code of Civil Procedure to determine claims to real property. The premises in question are that part of the former bed of the Bloomingdale road constituting the westerly half of the road between the southerly line of Ninety-seventh street and the center line of the block lying between Ninety-sixth and Ninety-seventh streets. On the 7th day of March, 1868, when the Bloomingdale road north of Eighty-sixth street was discontinued pursuant to the provisions of an act of the Legislature (Laws of 1867, chap. 697) by the filing of a map thereunder by the board of commissioners of Central Park, omitting the road therefrom (Fearing v. Irwin, 4 Daly, 385; affd., 55 N. Y. 486; Holloway v. Southmayd, 139 id. 399)) one Martin W. Kellogg was concededly the owner in fee of the. premises on the westerly side of the Bloomingdale road abutting on that part of the roadbed now in question. The plaintiff contends that the fee to this part of Bloomingdale road at that time was in the city of New York and that by virtue of said act of 1867 its title vested in Kellogg, the abutting owner, through whom the plaintiff claims title. If Kellogg thus acquired title from the city the subsequent conveyances in the plaintiff’s chain of title are clearly sufficient to vest that title in him. The plaintiff’s claim that the city was vested with the fee to the road is based on a deed from James Striker and others to the city on the 24tli day of March, 1795. At the time of the execution of that conveyance James Striker was seized in fee simple absolute of the premises in question and of a large tract of land known as Striker’s Bay farm which embraced the premises on both sides of the Bloomingdale road, including the bed of the road, between Ninety-sixth and Ninety-seventh streets as now located, and extended to the North Hi ver. The contention of the defendant is that the conveyance from Striker to the city merely conveyed an easement for highway purposes and that the fee remained in the grantor and has been acquired by the defendant through a decree in partition made between the devisees of James Striker, son of Garrit, to whom title descended from his father and who died seized thereof in 1831, and mesne conveyances thereafter. The partition action was in the Supreme Court and a decree for a sale of the premises was made on the 25th day of April, 1856. The partition map showed the Bloomingdale road passing through the farm as it existed at the time the road was subsequently abandoned; and it showed the abutting property subdivided into lots fronting upon the Bloomingdale road and upon Ninety-sixth, Ninety-seventh, Ninety-eighth and Ninety-ninth streets, and on avenues running northerly and southerly. Part of the premises abutting on the west on the part of the Bloomingdale road in question were purchased on the sale in partition by one Cotte and the remainder by one Peck, who subsequently and on the 30tli day of March, 1859, conveyed to said Cotte, the conveyances all being by lot numbers and bounded easterly by the Bloomingdale Road.” Cotte thereby became vested with the fee to the center of the road, which would embrace the premises in question, provided the fee was not conveyed to the city by Striker. When Cotte subsequently conveyed these lots he specifically bounded them by the westerly line of the road, thus, retaining the fee if he owned it. (Augustine v. Britt, 15 Hun, 395; affd., 80 N. Y. 647, where the question was decided on these identical facts.) The subsequent conveyances by which title to these lots became vested in Kellogg, the owner thereof when the road upon which the lots abutted was discontinued in 1868, followed the same description. On the 19th day of March, 1878, Cotte "executed a conveyance of that part of the roadbed in question to one Bell, who subsequently conveyed the same to one Augustine, Who in turn, prior to the commencement of this action, conveyed the same to the defendant. Before conveying .to the defendant Augustine contracted to convey to another and sued for specific performance. The release to the city does not appear to have been presented for adjudication, but the opinion proceeds on the theory that the city acquired an easement, and it was held that when Cotte originally conveyed he retained the fee, which it was decided he acquired under the referee’s deed in partition and the deed from Peck, and that he subsequently conveyed good title to Bell. (Augustine v. Britt, supra.) It is clear, therefore, that the defendant has become vested with the title to the premises in question if the deed by Striker to the city only conveyed an easement, for, of course, it was only competent for the Legislature to vest in the abutting owners any title owned by the public. (Fearing v. Irwin, supra; Deering v. Riley, 38 App. Div. 164, 171; Mott v. Eno, 97 id. 580, 602.) The decision of the appeal, therefore, depends upon the construction of the deed from Striker to the city. If it conveyed an easement only, the title now is in the defendant, and the judgment.should be .affirmed. But if it conveyed a fee, then the title is in the plaintiff, and the judgment must be reversed.

Bloomingdale road was originally laid out as a highway four rods in width, pursuant to the provisions of a Colonial act adopted in 1703 (1 Col. Laws of N. Y. [Comp. Stat. Rev. Com.] 532, chap. 131), by commissioners for the city and county of New York and was designated as running from a u house at the end of New York Lane ” through the lands of Tennis Edis to a point in the vicinity of the present One Hundred and Sixteenth street, as appears by a return made by the commissioners bearing date the 16th day of June, 1707, and entered on the minutes of the General Quarter Sessions of the Peace on the 1st day of November, 1726. It is conceded that at that time said Edis owned the premises in question. By a. Colonial act of 1751 (3 Col. Laws of N. Y. [Comp. Stat. Bev. Com.] 844, chap. 910) it is recited that Bloomingdale road had been laid out of the width of four rods between said points pursuant to the act of 1703, and facts are recited tending to show that the road should "be narrowed, and the justices of the peace for the city and county of New York at a certain General Quarter Sessions were authorized to appoint a highway surveyor for said highway and “ he is hereby Bequired to view and Survey the Said Boad or Highway and lay out the Same of the Breadth of Two Bods as the Same now Buns.” It has been held that it will be presumed that this duty was performed and that the two rods in width abandoned reverted to the abutting owners, freed of the public easement. (Blackman v. Riley, 138 N. Y. 318.) In 1787, by chapter 61, the Legislature created the mayor, aldermen and commonalty of the city of New York, in common council convened, and their successors, highway commissioners and authorized them, among other things, to widen and alter public roads and highways already laid out in said city and county, and to lay out and make others, provided the owners would consent for reasonable compensation; also to treat and agree with owners for lands to be taken and the compensation therefor, and to cause a jury to be summoned in the Mayor’s Court to inquire of and assess the damages and recompense for the respective interests and estates ” of owners refusing to treat and agree with the city, and provided that such proceedings and the payment of the damages and recompense or the tender and refusal thereof should be binding on the owners and their successors in interest claiming any interest or title in or to the same land,” and that upon payment or tender and refusal of the compensation to be made this would be full authority to the commissioners to “ cause the said land to be converted to and used for the purposes aforesaid.” By chapter 88 of the laws of the same year the Legislature authorized the common council to make ordinances, rules and orders for regulating and altering the “ streets, wharfs and slips,” to appoint surveyors, to treat with owners for lands needed in laying out “ streets, wharfs or slips,” to cause a jury to be súmmoned in the Mayor’s Court to inquire of and assess the “ damages and recompense ” for lands needed when the owners thereof refused to treat in the manner aforesaid, “according to their several interests arid estates-therein,” and provided that upon payment or tender and refusal of the damages and recompense thus assessed the proceedings should be conclusive against the owners and their successors in interest “claiming any estate or interest of, in or to the same ground,” and that thereupon the common council- might “ cause the same ground to be converted to and used for the purposes aforesaid.”

By the Declaration of Independence the right, title and interest of the British crown in the .public streets and highways vested in the People of the State. This was confirmed by the treaty of peace; and the Legislature in 1793 transferred it to the mayor, aldermen and commonalty of the city of New York. (Laws of 1793, chap. 42.) In that year it appears that the matter of widening Bloomingdale road, where it then existed, and extending it northerly from its terminus, considerably northerly of the premises in question, to the Post road on Harlem Heights was agitated, and on the 14th day of May, 1793, the common council on the report of its committee on Bloomingdale road adopted the following resolution : “ Ordered that said road from its commencement at Horn’s house to Nicholas De Peyster’s barn, be immediately opened to its proper and legal width of four rods, and thence to the Post road at Mr. Watkins of the same width if the proprietors will give the land; ” and two aldermen were appointed a committee “ to attend the opening of the said road and to confer with the proprietors of the land on the subject.” It does not appear what, if anything, was done pursuant to this authority, but on the 25th day of August, 1794, the road committee were ordered to report on the propriety of making the extension and to interview the proprietors as to their willingness “ to give the land for the purpose.” On the 7th day of April, 1795, the minutes' of the common council show the following: '

“A release of James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Samuel Bradhurst to this corporation of so much of their respective lands as is required to continue the Bloomingdale Boad through the same of the breadth of four rods was read and ordered to be proved, deposited in the Clerk’s Office and recorded.”

This is the conveyance requiring construction, and the material parts of it are as follows:

To all to whom, these presents shall come:
“ Whereas, the Mayor, Aldermen and Commonalty of the City of New York have lately laid out, regulated and continued the public1 highway or road commonly called the Bloomingdale Boad of the breadth of four rods through the lands of James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Samuel Bradhurst,
Now therefore know ye that in order to show the willingness and consent of the said persons respectively above named that parcel of their respective lands or so much thereof as may be necessary for the said road of the breadth of four rods should be taken and held by the said Mayor, Aldermen and Commonalty of the City of New York for the purpose of a public road as aforesaid.
“And for and in consideration of the sum of five shillings to the said persons respectively above named paid by the said Mayor, Aldermen and Commonalty of the City of New York, they the said persons above named, to wit, the said James Striker, John Jones, Nicholas De Peyster, James W. De Peyster, John P. Waldron, Andrew McGown, Samuel Kelly and Sami. Bradhurst, Have and each of them doth for himself, his heirs and assigns, hereby grant, release and forever quit claim unto the said Mayor, Aldermen and Commonalty of the City of New York and their successors, all that the parcel of their respective lands or so much thereof as may be necessary for the said road of the breadth of four rods as aforesaid to have and to hold the said parcel- of the said respective lands or so much thereof as may be necessary for the said public road as aforesaid, with the appurtenances unto the said Mayor, Aldermen and Commonalty of the City of New York and their successors to and for the sole and only use of a public road forever.”

It was shown that prior to September 15, 1795, the extension of the road was consented to by the proprietors of all the lands affected, with the exception of two, and that with these two exceptions the proprietors were willing to release the necessary lands to the. corporation, and that on that day the sheriff returned two precepts, reciting that they had been issued under “An act for the better regulating the public roads in the city and county of New York ” (Laws of 1787, chap. 61), to the Mayor’s Court; that jurors were sworn and withdrew to view the premises and two days later awarded damages to individual owners owing lands through which the road was extended which were subsequently paid. This is the only conveyance and these are the only proceedings shown with reference to the widening or extension of the road, but there is evidence satisfactorily showing that the road was widened prior to 1825 to the width of four rods and so remained until it was discontinued.

The act of 1703 under which the road was originally laid out made no provision for compensation and it has been frequently held that only an easement was acquired by the public. (Bartow v. Draper, 5 Duer, 130; Van Amringe v. Barnett, 8 Bosw. 357; Mott v. Eno, 97 App. Div. 580.) In all the litigation over this road the point as to whether by eminent domain proceedings taken pursuant to the provisions of said chapter 61 of the Laws of 1787 the city could have acquired a fee and the interest acquired by this grant have not been authoritatively adjudicated by an appellate court. In Deering v. Reilly (167 N. Y. 184), which related to that part of the street over the lands of one of the parties in whose favor the jury made an assessment for the extension, it had been stipulated that only an easement had been acquired, and the learned judge writing the opinion made the observation that this was the effect of the proceeding, but he has recently questioned the correctness of this observation and expressed the opinion that under the statute the city at that time could have acquired the fee, and in this view the majority of the court concurred. (Mott v. Eno, 181 N. Y. 346.)

If, as has been held by the Court of Appeals in Mott v. Eno (supra), the city could have acquired the fee by condemnation pro-' ceedings, it cannot be doubted that it was authorized to accept a deed of the fee of lands for highway or street purposes. This deed in form clearly conveys a fee, and the grant is not limited by the habendum clause specifying the use to which the property is to be appropriated, for this is neither inconsistent with nor a limitation of the grant of the fee, but is merely a specification of the use customarily inserted in all grants in perpetuity. (Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 128; Kenney v. Wallace, 24 Hun, 478; Tifft v. City of Buffalo, 82 N. Y. 213; Vail v. Long Island R. R. Co., 106 id. 283 ; De Witt v. Elmira Transfer R. Co., 134 id. 495; Hughes v. Bingham, 135 id. 347; United States v. Case Library, 98 Fed. Rep. 512; affd., Avery v. United States, 104 id. 711.)

Even if the conveyance should be construed as a grant upon condition by which the title would be forfeited upon a discontinuance of the road, this would not avail the defendant for the right of the re-entry could only be exercised by the heirs of the grantor. (Nicoll v. N. Y. & Erie R. R. Co., supra; Upington v. Corrigan, 151 N. Y. 143.) If the Legislature could not transfer the city’s title that would doubtless prevent a recovery in this action because the plaintiff must establish his title. It was, however, clearly competent for the Legislature to transfer the public rights and title to the abutting owner on the discontinuance of the highway in satisfaction or mitigation of his damages and that is the legal effect of the statute of 1867. (Matter of Mayor, 157 N. Y. 409. See, also, Matter of Brook Avenue, 40 App. Div. 519; affd., 161 N. Y. 622; Fearing v. Irwin, supra.)

It is further claimed that the plaintiff, since as to the abutting premises his title is based on the partition, is estopped by the proceedings in the partition action from contending that the fee to the roadbed was not partitioned. I am of opinion that it is consistent with the record in the partition action that the public had merely an easement as that they had a fee, and I fail to see how a grantee of a purchaser of the abutting premises through a sale in partition was estopped from subsequently acquiring the fee to the roadbed from one holding paramount title thereto who was not a party to the partition action, even if the premises had been partitioned on the erroneous assumption that the parties thereto had title, for the city was at liberty to dispose of the title and plaintiff should be at liberty to acquire it. (See Masten v. Olcott, 101 N. Y. 152; Earle v. Earle, 173 id. 480; Hardenburgh v. Lakin, 47 id. 109; Boerum v. Schenck, 41 id. 182; King v. Townshend, 141 id. 358.)

It is further urged by the learned counsel for the respondents that the grant is void for indefiniteness, and there is no evidence that it embraced the premises in question.. Manifestly it was intended to grant the lands desired for the highway both as to the old part and as to the extension. [De Peyster v. Mali, 27 Hun, 439.) The highway was surveyed and established and opened and used to the width of four rods until abandoned in 1868, at which time the premises in question were concededly within its lines. They were owned by the grantor when he executed the conveyance. In the absence of evidence that the location of the road was changed it is a reasonable presumption that it remained the same in 1868 as in 1795. It does not appear that the grantor owned lands through which the road ran other than Striker’s Bay farm. Therefore, it was not void for indefiniteness, and it clearly embraced the premises in. question.

It follows, therefore, that the judgment should be reversed, with costs, and, since the findings of the material facts are sufficient and could not be changed upon a new trial, final judgment should be awarded in favor of the plaintiff, with costs.'

Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, with costs, and judgment ordered for plaintiff, with costs. 
      
      
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