
    In the Matter of the Application of The Mayor, Aldermen and Commonalty of the City of New York, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to the Lands, Tenements and Hereditaments Required for the Purpose of Opening East One Hundred and Forty-second Street (Although Not Yet Named by Proper Authority) from Powers Avenue to the Southern Boulevard, etc., in the Twenty-third Ward of the City of New York. The City of New York, Appellant; Estate of Samuel E. Lyon, Deceased, and Harold Ward Dana, Respondents.
    
      Deed of a lot abutting on a street laid out on a map — when it does not convey the fee of the street — a declaration of the grantor as to the right of the grantee to use the street — it operates by way of estoppel—scope thereof — rights of the grantee and of the grantor to compensation where the street is opened.
    
    August 27, 1880, Samuel E. Lyon, being then the owner of a tract of land now in the city of New York, filed a map thereof upon which certain streets were delineated, two of which were designated respectively as Mary street and Robbins avenue. The map contained the following indorsement signed by Lyon:
    “ The Streets and Avenues designated on this map are shown thereon for convenience in description only, and not with intent to dedicate the same to public use.”
    October 12, 1880, Lyon conveyed to one Heintze blocks Nos. 1, 2, 3 and 4 as shown on the map. Each block was described separately in the deed and the starting point in each case was a designated corner of the intersecting streets which bounded the block and the description ran in each case along the side of the bounding street. At the end of the description was the following statement: “Streets and avenues shown on said map and mentioned herein being shown thereon and referred to herein for convenience in description only, and not with intent to convey the same or dedicate the same to public use.”
    February 3, 1882, Lyon, at the request of the attorney for a party who contemplated making a loan to Heintze, to be secured by a mortgage upon the premises, executed a declaration in which he stated that the language used in the deed to Heintze in relation to the streets and avenues shown on the map “was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, heirs, executors, administrators or assigns, for the purpose of access and egress to and from any one of said building lots designated on said map or mentioned in said deed. But the said John George Heintze, his grantees, heirs, executors, administrators or assigns, were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues.”
    
      Thereafter Heintze conveyed to third parties some of the lots which he had purchased from Lyon, none of which, however, fronted upon Mary Street. Subsequently Heintze reconveyed to Lyon blocks 2, 3 and 4 and certain designated lots in block 1. The lots so designated included the whole of the frontage on Mary street. The descriptions of blocks 2, 3 and 4 were the same as those contained in the deed from Lyon to Heintze, and at the end of the description was the same clause in relation to the streets or avenues as was contained in the deed to Heintze.
    
      Held, that in the conveyance to Heintze Lyon had reserved the title to the fee of the streets and avenues appearing on the map, and that it was doubtful if Heintze, prior to the execution by Lyon of the declaration of intention in respect to the streets and avenues delineated on the map, obtained or could convey to his grantees any right or easement whatever in the streets or avenues appearing on the map;
    That while the declaration did not constitute a conveyance or a grant, it did, by way of estoppel, inure to the benefit of all those who relied upon it;
    That such estoppel did not operate to confer on Heintze’s grantees easements in all the streets delineated "upon the map, but only conferred on them a right of way by necessity over the street upon which their lots abutted so far as to enable them to reach the next open street;
    That in a proceeding instituted by the city of Hew York to acquire the title to open Mary street, it was proper to award Lyon the full value of the land included therein, for the reasons that the grantees of the lots conveyed by Heintze acquired no easements in that street; that their rights, if any, would not be diminished by the opening of the street, and that whatever interest they had in the lands included in the street was not one for which they were entitled to be compensated.
    Van Brunt, P. J., and Laughmn, J., dissented.
    Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1902, confirming the report of the commissioners of estimate and assessment appointed in the above-entitled proceeding.
    On or about the 27th day of August, 1880, Samuel E. Lyon, being then the owner of a tract of land, including the premises in question, filed a map thereof, showing the same intersected by streets crossing each other at right angles, and thereon designated, amongst others, by the names of Mary street and Robbins avenue. East -One Hundred and Forty-second street, to open which this proceeding is taken, coincides with the lines of Mary street as laid out on this map. Upon this map was indorsed the following inscription in the handwriting of Mr. Lyon:
    
      
      “ The Streets and Avenues designated on this map are shown thereon for convenience in description only, and not with intent to dedicate the same to public use.
    “ Dated, M. Y., Aug. 21th, 1880.”
    After the filing of this map, Mr. Lyon conveyed to one Heintze a portion of the premises shown upon the said map. This deed was dated October 12, 1880, and recorded on the same day in the register’s office in the city and county of Mew York. The property conveyed by said deed was described therein as blocks 1, 2, 3 and 4 on the map filed as above mentioned. These blocks are shown on the map. Each block is in this deed described separately. The point of commencement in each case is a designated corner of the intersecting streets which bound the lot, and the description runs in each case along the side of the bounding street. At the end of the description follows the statement: “ Streets and avenues shown on said map and mentioned herein being shown thereon and referred to herein for convenience in description only, and not with intent to convey the same or dedicate the same to public use.”
    After this deed, and bn the 3d of February, 1882, Mr. Lyon executed a declaration in which, after referring to the deed to Heintze above mentioned, he declares that the language thereof, which is quoted above in relation to the streets and avenues shown on the said map, “ was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, heirs, executors, administrators or assigns, for the purpose of access and egress to and from any one of said building lots designated on said map or mentioned in said deed. But the said John George Heintze, his grantees, heirs, executors, administrators or assigns, were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues. I make this declaration at the request of Yernon & Hill, attorneys for Amelia T. Whitson, who is about to loan money to said John George Heintze to be secured by bond and mortgage upon the two lots and buildings on the northeast corner of said Division Avenue and Robbins Avenue.”
    After the execution of this instrument by Lyon, Mr. Heintze conveyed some of the lots which he had bought from Lyon to various persons. Mone of the said lots, however, face upon Mary street, which is coincident with One Hundred and Forty-second ¡street, as has been before mentioned. And on the 24th day of August, 1883, Heintze reconveyed to Lyon block 2, block 3, block 4, ■and certain designated lots in block 1. The lots so designated and -conveyed included the whole of the front on Mary street, between •Concord and Robbins avenues, with a depth of 100 feet on Concord ¡avenue, and about 150 feet on Robbins avenue. This deed uses the same descriptions as to blocks 2, 3 and 4 which were contained in the deed from Lyon to Heintze, and at the end of the description is the same clause in relation to the streets or avenues being referred to for convenience and not with intent to dedicate.
    The commissioners in this proceeding awarded to Mr. Lyon’s estate the full value, as estimated by them, of the land taken for the opening of the street.
    
      John P. Dunn, for the appellant.
    
      David B. Ogden, for the respondent Estate of Lyon.
    
      Edward M. Scudder, for the respondent Harold Ward Dana.
   O’Brien, J.:

The single question presented upon this appeal is whether the land in the bed of what was formerly known as Mary street, now known as East One Hundred and Forty-second street, was burdened with private easements in favor of the grantees of Heintze who purchased lots on adjoining streets which were shown on the Lyon map. The contention of the city is, that all of the grantees of Heintze are entitled to easements over all the lots included within the streets bounding the block in which their lots are situated, as well as over all the streets shown on the Lyon map, to their full extent.

It is to be noticed that there is here no question as to the public dedication of these streets; and it is also conceded that in the conveyance made by Lyon to Heintze the latter obtained four blocks of building lots bounded by the streets and avenues shown on the map mentioned in the deed, without any title to the fee of such streets and avenues. This was followed by a • declaration, made at the request of certain attorneys for the mortgagee who was to loan money to Heintze secured by a bond and mortgage on some of the property, wherein it is stated that the language in the Heintze deed with respect to the streets referred to them for convenience in description only, and not with intent to convey the same or dedicate the same to public use; ” and “ was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, * * * for the purpose of access and egress to and from any one of said building lots designated on said map * * *. But the said John George Heintze, his grantees, * * * were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues.”

The commissioners, in considering the effect of this declaration, fell into an error of fact in assuming that Lyon, when he conveyed to Heintze, had not retained the fee in the streets ; and upon this assumption they concluded that Lyon could in no way affect the title to Heii tze or his grantees by any declaration made after parting with the title. Though their reasons may have been based upon an erroneous assumption, it remains to be determined whether their conclusion was right; and this necessarily depends upon the effect and construction of the Lyon declaration.

Prior to the execution of that paper it is doubtful if Heintze obtained or could convey to his grantees any right or easement whatever in the streets or avenues appearing upon the map. Lyon, having reserved the title to the streets, could unquestionably thereafter by grant to Heintze and his grantees have conferred upon them and each of them an unrestricted right or easement over some or all of the streets appearing upon the map. He did not, however, undertake to convey by grant any rights to Heintze or his grantees; but at the request of the attorneys representing the one who was to loan money to Heintze the declaration was made; and while it does not reach the' dignity of a conveyance or grant, it would by way of estoppel inure to the benefit of all those who relied upon it. It remains, however, to determine the extent of the rights acquired by virtue of such estoppel, and as to whether, in addition to the undoubted right which the grantees from Heintze obtained to the free and uninterrupted use of the streets in front of the lots bought by them, they obtained an equal right in all other streets and avenues appearing upon the map.

Considering the language of the declaration, an argument could undoubtedly be built up- in favor of the view that the easements which the lot owner acquired were not to be restricted to the streets upon which his lot abutted, but" that he was entitled as well to passage over all the other streets shown on the Lyon map. But notwithstanding such general language, we think there are two controlling reasons in favor of construing this declaration into one which gave to the lot owners a right of necessity over the street upon which their lots abutted, so far as to enable them to reach the next open street, but that they acquired no easements over other streets designated on the Lyon map.

One of these two, and the principal one, to which we have already adverted, is the fact that there was no grant to Heintze or those who succeeded him; but that the declaration worked in favor of the lot owners and against Lyon, an estoppel to an extent commensurate with the use and enjoyment of their property, which included the right of ingress and egress over the streets in front thereof and so far as the next open street. As was said in Hier v. N. Y., W. S. & B. R. Co. (40 Hun, 314; affd., 109 N. Y. 659), wherein a similar question was presented having reference to facts somewhat analogous to those here appearing: “ But we are of the opinion that the plaintiff acquired no interest in Olive street beyond the general public (except a way by necessity) by reason of the description contained in his deed and reference to Green’s map. The conveyance does not purport to give any right • in or to the street or along its course. (Wheelers v. Clark, 58 N. Y. 267, 271, 272.) Nor would an easement pass as an appurtenant, unless it were directly necessary to the enjoyment of the estate granted. A mere convenience is not enough to create a right or easement.”

The second reason which wé think controlling, is that any rights which the lot owners may have acquired by the estoppel are in no way to be diminished because, as the result of the proceedings, it is proposed to take the land appearing on the map for public streets over which the lot owners will have free access, and besides, none of them is here asserting any rights to any portion of the award which is to be made for the land taken for the streets. And if we assume that they are represented by the city, the latter on their behalf could only ask for a deduction from the full value of the land taken, such amount as would be proper to pay for easements which the abutting owners may have in and over the land taken. In our view, however, a right of way of necessity, based upon an estoppel, is not an interest or right in land which would entitle the one having it to be compensated. It is a “ mere convenience,” and “ not enough to create a right or easement.”

We think, therefore, that the report of the commissioners was right and that the order confirming it should be affirmed, with costs.

Ingraham and McLaughlin, JJ., concurred; Van Beunt, P. J., and Laughlin, J., dissented.

Order affirmed, with costs.  