
    James W. Holloway, App’lt, v. Charles F. Southmayd et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 10, 1893.)
    
    Deed—Description—Easement—Discontinuance of highway.
    Even if a deed bounding the premises on a road or highway does not convey the fee of the soil of the road to the grantee, the grantor, by so bounding it and by including the easements and appurtenances thereto belonging, impliedly warrants to the grantee that so much of the road should perpetually exist as au open way as bordered upon the premises granted and, in legal effect, grants such usual and more or less necessary easements as would be comprehended in the free flow of light and air over and in the free use of the open way as such, which will survive the extinguishment of the public easement in the highway by act of law; and m an action of ejectment after discontinuance of the highway, the grantor is not entitled to judgment for the unqualified possession of the land, but only to judgment for the possession subject perpetually to the grantees’ right to the enjoyment of their easement.
    (Earl, Finch aud O’Brien, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, reversing judgment iii favor of plaintiff in an action of- ejectment.
    
      James A. Deering, for app’lt; Wm. G. Choate, for resp’ts.
    
      
       Affirming 45 St. Rep., 895.
    
   Gray, J.

The land, possession of which is claimed, comprises what was formerly the westerly half of the Bloomingdale road, between Ninety-fifth and Ninety-sixth streets in the city of New York. Originally it bounded a parcel of land which was conveyed by Charles Apthorp and others to David M. Clarkson, by deed, with full covenants, dated October 15, 1799, by this description of the premises, viz.:

All that certain tract or parcel of land situate at Bloomingdale in the seventh ward of said city of New York, and butted and bounded as follows, to wit: Beginning on the north side of the Bloomingdale road at the corner of the lane leading down to Mr. Striker, and running along the same (the lane leading to Striker); north fifty-eight (58) degrees west ten (10) chains sixty (60) links, and thence by various courses to the Bloomingdale road; thence along the said road north twenty-eight (28) degrees thirty (30) minutes, thirty nine (39) chains and seventy-five (75) links to the place of beginning, containing ten (10) acres ‘ according to a map thereto annexed.’ ”

The grantors included in their grant all the easements, privileges, advantages and appurtenances belonging or in anywise appertaining to the land. The Bloomingdale road was opened as a public highway in 1707, by the public authorities, over the land of Theunis Ides. On March 8, 1868, the commissioners of the Central Park, acting under the authority of an act of the legislature, passed April 24, 1867, filed a map re-laying out a district comprehended within Fifty-ninth and One Hundred and Fifty-fifth streets, the Eighth avenue and the Hudson river. Upon this map Bloomingdale road north of Eighty-sixth street was not retained, and its legal closing as a highway dates from the filing of that map.

By mesne conveyances the tract of land, of which the premises in question formed a portion, came into the possession and ownership of Charles Ward Apthorp, who died intestate in 1797. His heirs made various conveyances of the lands; one of which was to Clarkson. The plaintiff is a descendant .of James Apthorp, one of the children of Charles W. Apthorp, and it is his claim that, by inheritance, he is entitled to and seized in fee of an undivided one-twenty-eighth part of the land formerly within the lines of the Bloomingdale road and lying in front of the premises conveyed to Clarkson. That claim rests upon the ground that that conveyance did not take in the road, and, therefore, when, by its legal closing in 1868, it was relieved of the public easement, it reverted “ in full and unqualified domain” to the heirs of Charles W. Apthorp.

It is argued for the defendants, who have become vested with their rights and titles in the premises through mesne conveyances by successive grantees of the land since the grant to Clarkson by Apthorp’s heirs, that that grant included the Bloomingdale road to its center line; or, if that was not its effect, that, by virtue of the provisions of the act of 1867 for the closing of that road, the defendants acquired the fee of the road to its center; or, if the fee in the soil of the adjoining portion of the road never passed from the original grantors, that their grantee, his heirs and assigns, became vested with private easements in the road for light, air and access, to the purposes of which the ownership of the plaintiff should be declared perpetually subject.

Whatever the individual opinions we might entertain (and they may well differ) respecting the effect of the language in the conveyance to Clarkson to convey to him the fee of the soil to the center line of the Bloomingdale road, we prefer to place our decision upon the broad ground that Clarkson became vested with rights to private easements in the highway, which would perpetually exist as against the grantors and those deriving title from them; although the public easement in the road should become extinguished by its discontinuance as a public highway. There is great difficulty in reconciling the decisions in this state upon the question of when a description in a deed, which bounds the premises upon a highway, or street, shall be deemed to take in the fee to the center line of the roadbed in front of the premises. There is no doubt about the rule being settled that there is a legal presumption against the grantor’s intending to reserve to himself the title to the soil of the highway, and that such presumption is only overcome by language in the conveyance clearly indicating such an intention on his part; but the application of the rule is made uncertain through the varying opinions of courts as to the inference which we shall draw as to intention from the words in which the grant is couched.

Sufficient evidence of that uncertainty of application will be found from reading the opinions since the early case of Jackson v. Hathaway, 15 Johns., 447, down to a very recent date.

In the very elaborate briefs which are submitted the cases have been diligently investigated and collated on both sides, and by reference to them it can be seen that there has been more or less divergence in views with respect to how boundary lines are to be drawn, with respect to monuments in the highway and in streams; as, also, with respect to what shall be deemed descriptive monuments.

In the absence of language which will plainly express the intention of a grantor to exclude from the operation of his grant the soil of the adjacent highway, it is just that doubts should be resolved in favor of his grantee ; but in the application of the principle there may be some danger to the stability of property rules.

In a case apparently governed by precedents slight departures from the descriptive language used in the earlier cases might be seized hold of to prevent what seems an unjust result. In the present case, for instance, there were found grounds for distinguishing the description in the grant from that used in White's Bank v. Nichols, 64 N. Y., 65, and Kings Co. Fire Ins. Co. v. Stevens, 87 id., 287, and in some later cases, and they are pointed out in the briefs of counsel and in the opinions delivered by Mr. Justice Ingraham at the general term in this case, and in that of the same plaintiff against Delano.

The distinction may be justified by the conviction that such a claim as the plaintiff makes is unmeritorious; but there is considerable doubt in our minds whether the case is not within the precedents just cited. However that may be, we think that the question can be effectually set at rest; the appearance of shaking the stability of decisions can be avoided and a property rule established, not only just, but which is logically deducible from legal principles, by holding that, in this and like cases, while the grantor may have retained the fee of the soil in the highway, he has but a naked, or barren title, and that, in the event of the discontinuance of the public highway by act of law, the grantee, and his successors in interest, nevertheless, will still be entitled to the perpetual enjoyment of certain easements, which were impliedly granted, in relation to the open way lying in front of the lands granted, and referred to as their boundary. This view is in accord with authority and with reason. That private easements may be appurtenant to the property abutting upon a public highway must be conceded. These easements of the abutting landowner are in addition to such as he possesses as one of the public, to whose use the property has been subjected. They are independent of the public easement and, whether arising through express or implied grant, are as indestructible, in their nature, by the acts of the public authorities, or of the grantor of the premises, as is the estate which is the subject of the grant.

The case of White's Bank v. Nichols, 64 N. Y., 65, is instructive upon this proposition. That was in ejectment to recover a strip of land which, by construction of a street under the direction of the public authorities, remained between the new and original street lines. The defendant was the owner of the abutting property, and took possession up to the new street line, and the plaintiff, claiming as the owner of the soil of the street, sought to eject him. It was held that, by the original grant of the lot to defendant’s predecessor in the title, its boundary was confined to the exterior line of the street; but that he had the right to an easement, of which he could not be deprived, and which consisted in the right to have the space of ground left open forever as a street, and' to use the way for every purpose that may be usual and reasonable for the accommodation of the granted premises. The-plaintiff’s recovery, therefore, in the action, it will be seen, was & barren one; for, though it obtained a judgment that the fee was in it, the judgment subjected it to the defendant’s easement. In that case the original grant was of premises as shown upon a map of the block, made by the grantors, on which streets were-designated, and while that circumstance entered into the decision, of the question of defendant’s right to an easement, nevertheless it was laid down by Allen, J., as the general rule, that “ when land is granted bounded on a street or highway, there is an implied covenant that there is such a way, that so far as the grantor is concerned it shall be continued, and that the grantee, his heirs and assigns, shall have the benefit of it.” In Parker v. Framingham, 8 Metc., 260, which was cited by Judge Allen in support of his statement of the rule, Chief Justice Shaw, who delivered the-opinion, after stating the settled rule in the language quoted by Judge Allen, continued: “It seems reasonable, and quite within the principle of equity on which this rule is founded, to apply it to tne discontinuance of a highway, so that, if a man should grant land bounding expressly on the side of a highway, if the grantor own the soil under the highway, and the highway, by competent authority, should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantor’s right of wayr or render it substantially less beneficial. Whether this should be deemed to operate as an implied grant or as an implied warranty covenant, and estoppel, binding on the grantor and his heirs,, is immaterial. The right itself would be inferred from that great principle of construction, that every grant and covenant shall be so construed as to secure to the grantee the benefits intended to be conferred by the grant, and that the grantor shall do nothing to defeat or essentially impair his grant”

The question involved in that case related to a claim for damages upon laying out a town way over land formerly embraced within the limits of a turnpike, which had been discontinued; but the statement of the general rule was relevant to the discussion, to show that an easement was secured to the petitioners, as against the grantor and his assigns, over the soil of the turnpike after it was discontinued.

Professor Washburn, in his work on Basements (*170), says, “ upon the authority of Parker v. Framingham, supra, where one sells land bounded upon the highway, and the same is discontinued by act of law, although the same reverts to the owner of the fee of the soil, the grantor, as such, in such a case, would have no right to deprive his grantee of the right to use the discontinued road for the purpose of a way.”

The Bloomingdale road, it must be remembered, was laid out by the authorities as a public highway oyer a tract of land owned by Ides, the predecessor in title of the Apthorps. The effect was to burden their land with an easement of way in favor of the public. As the title to the land in the road remained in them, We think that to bound a parcel of land upon the highway, under conveyances which included all the appurtenant easements and advantages, was to grant' easements in the land embraced in the way in favor of their grantees, to the extent that they might be beneficial to thé estate conveyed. Although the fee of the soil remained in the grantors, it was incumbered with an easement of their own creation. Washburn on Basements (4th ed.), 266. In the text book cited, the proposition is rested upon the authority of the case of the Opening of Eleventh Avenue, 81 N. Y., 436.

The fact in that case was that the owner of the tract made conveyances of portions, bounding them upon intended streets not yet laid out by legal authority, but treating them as located if the map of the public authorities had been extended. The decision of the referee was upheld, as being supported by the authorities, that these conveyances, although not amounting to a dedication of the lands embraced in the supposed streets to the use of the public, or constituting them public highways, created an easement in favor of the grantees of the lots abutting thereon, which, as between them and their grantor, and those deriving title under him, entitled them to have the lands described in the conveyances as streets and avenues left open as such for the benefit of their lots.

Is there any satisfactory reason for making a distinction against, an application of this rule to a case where the conveyance bounds the premises upon an existing public highway, which has been laid out over the lands of the grantor, or of his predecessor in title, and the fee in the soil of which remained in him with reversionary rights ? The argument against it is that to refer to a public highway as a boundary is merely descriptive; but it seems-a sufficient answer to that to say that to bound the grant by the way, the fee of the soil of which is in the grantor, is to warrant its presence and its continuance not as a highway, but as an open way for access or enjoyment, so far as the grantor is concerned, in the absence of words reserving and denying all rights in the-highway.

In De Peyster v. Mali, 92 N.Y., 267, the existence of such an independent private easement of the abutting landowner was distinctly recognized. It is said to be impliedly granted, because necessary for the enjoyment of that which is expressly granted, and upon the principle that where one grants to another, he thereby grants him the means of enjoying it, whether expressed or not. In that principle easements of access and of light and air find their support. 2 Washb. Real Prop., 25, 27.

The easement which the public acquires in the land, upon the-laying out of the highway, is limited to those uses for which highways have ordinarily been understood to be intended; but the abutting landowner, besides his right as one of the public, may acquire a right to private easements, even if he never owned the fee of the soil in the highway. If a use of the street, or highway, for public, or quasi public, purposes, has been authorized, which is extraordinary in its nature, and interferes with a free access, or the free flow of light and air to the abutting owner’s premises,pro tanto, he is deemed to have suffered in the enjoyment of property rights. As to him such a use is illegal and. will be Restrained, until the right to the particular use is acquired by making compensation through agreement, or through condemnation proceedings, under the law of eminent domain. This is the doctrine of the elevated railroad cases, and their litigation well illustrates what rights are possessed by the abutting lot-owner on the public street to the enjoyment of those advantages which the open way in front of his premises confers upon his property. If, by act of law, the public right, or easement in the highway has ceased, there is no reason for saying that, as against the grantor of the ■abutting land, any right to the continuance of private easements has been lost to the grantee. At least, the principal argument for the other view is that the possible discontinuance of the highway was a contingency which the parties must, or should, have considered. But is that quite just? Had the grantee not the right to assume that, with the fee of the highway in the grantor, in ■conveying lands with boundaries given upon the highway, together with all the appurtenances, easements, advantages and privileges, he intended to and did, impliedly, if not in express terms, warrant to his grantee, as far as he was concerned, the continuance of the open space in front of the land for all the beneficial purposes which it could subserve, even if the public easement should cease ? When it is said that the land of a highway which has been discontinued reverts to primary conditions of ownership, obviously, it is to be understood that such owner-ship is not thereby relieved of burdens created by the original ■owner.

At the time of the sale of the land to Clarkson, the open way, "by which the grantor bounded it, existed as the visible incident to the enjoyment of the land; upon what principle may the grant- or, or his successors in interest, when the public highway is discontinued by the action of the public authorities, step in and claim that a right to the exclusive possession and dominion of the land embraced in the highway had reverted ? The appurtenances in such a grant, which relate to the highway and its uses, are not limited to those which appertain to the general public. That would hardly be contended for. Why then, the way having ceased to be a public one, should a reversion of ownership, by operation of law, be deemed to free it from a private easement appurtenant to the abutting land ? In the sale of a parcel of land, which is described as bordering upon a highway, we may presume that its existence entered as a factor into the consideration for the purchase, as offering certain advantages; such as would include a free flow of light and air over it, as well as in the freedom ■of access. Though such private easements have been said to result from implied covenants, in legal effect the covenant operates as a grant, which warrants, as against the grantor, his heirs and assigns, their perpetual enjoyment by the grantee and his successors in interest. The highway, as such, may be discontinued, but so far as the grantor and his successors in interest are concerned, they shall not derogate from the original grant and, by resuming possession of the soil, prevent the enjoyment by the abutter of his private easement.

As is suggested by the counsel for the respondents, as to the .grantee, it is only upon the cessation of the public right in the road that the practical enjoyment of the private easement as such begins. If the fee in the land upon which the highway exists has remained in the grantor, its usefulness, if any, to him must be confined to subsoil properties and uses, which do not interfere with the full enjoyment of the private easements over the land.

It is the better rule to hold that, to exclude a grantee from the perpetual beneficial use of the open way in front of the premises granted to him, the language of the deed should clearly express such an intention. Mr. Justice Story, in United States v. Appleton, 1 Sumner, 492-502, observed that “in truth every grant of a thing naturally and necessarily imports a grant of it as it actually exists, unless the contrary is provided for.”

It was said by Strong, J. in Huttemeier v. Albro, 18 N. Y., 48, that whether a right of way, or- other easement, is embraced in .a deed, is always a question of construction of the deed, having reference to its terms and the practical incidents belonging to the grantor of the land at the.time of the conveyance. In that case, in the deed of a-lot, a boundary was “ south-easterly along said alleyway,” and that reference to the alley was considered as a circumstance indicative of an intention that the way should continue and that the easement was conveyed to the grantee as an ■appurtenance.

Some cases are referred to by the counsel for the appellant as "being opposed to the view expressed. In Wheeler v. Clark, 58 N. Y., 267, the question involved was, whether a clause contained in a certain deed .of lots, upon a map of the grantor’s lands, which subjected the land forming the streets in front of the lots to the use of all the owners of the lots upon the map, and of the public generally, as public streets, could be construed as perpetually reserving a private right of way over the land of the highway, and the decision was that no private right of way was created which plaintiff, as the owner of one lot, could enforce as against the defendant, who was the owner of other lots, and whose title (like that of the other lotowners), upon the discontinuance of the public highway, under his grant, carried him to the centre of the highway.

The question now before us is quite other than in Wheeler v. Clark, or in Kings Co. Ins. Co. v. Stevens, 101 N. Y., 411. In the latter case the defendant, under implied covenant, claimed to .have a right of way over a road which had been closed by the -public authorities, and plaintiff’s action was to restrain her from ■entering upon the strip of land in front of its premises. The question did not relate to the rights of the abutter in the road in front -of her premises; but to a distant way. Finch, J., observed, in his opinion, that “ the closing of the street in controversy is in "front of the plaintiff's premises and not of her’s (the defendant’s) .and does not take from her light, air or convenience of access.”

In King v. The Mayor, 102 N. Y., 175, the dispute was with, respect to the right to an award of damages for closing Bloomingdale road as a public highway. After the road was legally closed, by the filing of the map in 1868, but before the making of the award of damages, the owners of the land fronting upon the road conveyed to Brennan, by a description which bounded the grant, by the Bloomingdale road and which included the right, etc., of the grantors in that road and in other streets as were adjacent to the premises described. The decision was to the effect that the representatives of the Kings, who were the grantors, and not Brennan, were entitled to the award ; upon the ground that the right to the damages vested at the time of the filing of the map, which legally closed the Bloomingdale road, and that the deed to-Brennan had not transferred to him the personal claim to the damages. The remarks of Judge Finch, cited by appellant’s counsel, must be read in view of the proposition decided. He held that. Brennan was bound to know, when the grant was made to him, that the public highway no longer existed and that he must be-presumed to have bought in view of that fact. With such knowledge, chargeable to Brennan, he could not be heard to claim that, by bounding the grant upon the highway, his grantors had conveyed any easement in the highway. And see Utter v. Richmond, 112 N. Y., 610 ; 21 St. Rep., 818.

These cases, which the appellant’s counsel have cited from the-reports in this court, are the only ones we need discuss. In Fearing v. Irwin, 55 N. Y., 490, also cited, the question was as to-when the Bloomingdale road was closed, and the decision related to the constitutionality of the legislative acts and their effect. In other respects, it rested upon a formal admission of record. It is-not in point here. The very early case of Jackson v. Hathaway, 15 Johns., 447, cannot be regarded as an authority upon the question now under discussion; for the reason that we are not sufficiently informed as to the terms of the conveyance of the land. Nor should we consider ourselves bound by that case, which concerned the ownership of the fee in the highway as affected by a conveyance of adjoining land, in the decision of this case. As a precedent in the consideration of the question of when the fee of the land in the road passes to a-grantee of premises upon it, under the-terms of a description, we are not disposed to dispute its authority; but, we think, it should not be extended.

The appellant further contends that these special easements, if acquired by the abutting owner, were lawfully extinguished and condemned, as the result of the proceedings had under the act of 1867, providing for the closing of the Bloomingdale road. In that he is mistaken. The purpose and the effect of that act, it is plain from its language, were to discontinue the road as a public highway and, in so doing, to extinguish the public easement The legislature was not concerned with private easements and rights in the land covered by the public highway. Its action left these private interests as they were; the public had no interest in their destruction. The award of damages was to compensate property owners who could prove they had been injured by the discontinuanee of a public highway. It is obvious that the presence of a public highway in front of one’s premises, by reason of the many public and general advantages it offers, confers a distinct value upon them and that its proposed discontinuance may result in a •diminished value to the owner. The situs of a parcel of land •enters into the estimate of its value. If upon a public and prominent thoroughfare, it .has a value which it would not possess if the thoroughfare were closed or changed. How great the loss in value is, or if any is in fact sustained, may turn upon a consideration of the circumstances surrounding the proposed alteration; but the legislature, in providing for awards of damages, looks at the general fact of a change being made which may affect injuriously landowners, and authorizes compensation in such cases.

The result of our consideration of this plaintiff’s demand for the possession of the premises described, of the basis for such a claim and of -the intention to be deduced from the original deed of Apthorp’s heirs, from its terms and the circumstances of its making, is, that we hold that though the fee of the soil of the road may not have been transferred to the grantee by the conveyance and may have remained in the grantors and those deriving title from them, yet, in bounding the granted premises upon the Bloomingdale road and by including the easements and appurtenances thereto belonging, the grantors impliedly warranted to the grantee that so much of the road should perpetually exist as an open way as bordered upon the premises granted, and, in legal effect, granted such usual and more or less necessary easements as would be comprehended in the free flow of light and air over and in the free use of the open way as such, pro tanto, and' which survived the ■extinguishment of the public easement in the highway by act of law. To those easements the fee in the land embraced in the highway remained perpetually subject. That the ownership of the fee may be barren of profit has nothing to do with the question. In the original sale the owner received, presumably, a value proportioned to the fact that the land sold was upon the Bloomingdale road, which gave to it access and other advantages. To permit the successors in interest of the original grantor, in the face of the grant, to resume dominion over and to have the beneficial use of the land in the old highway would be unjust, as well as without sufficient warrant in the law.

It follows from the views we entertain upon the questions discussed that, while the plaintiff was entitled to maintain the action and to have judgment adjudging him entitled to recover, the fee of the land in dispute, it was error to award judgment for the unqualified possession of the land. He was not entitled to such a judgment against the defendants, but only to a judgment for the possession, subject perpetually to the defendants’ right to the enjoyment of their easement in and over the land.

For the reasons stated, the order appealed from should be affirmed and, under the stipulation of the appellant, judgment absolute should be ordered against him, with costs.

Maynard, J.

I am in favor of affirmance in the Southmayd case, and in Delano No. 1, because the defendant is the owner of the fee of the land to the center of the Bloomingdale road, upon which his premise's are bounded. Unless there is something in the description of the property conveyed, or its location or relation to other property of the grantor, indicative of a contrary intent, a grant of land bounded upon a public street or highway of which the grantor has the fee must be deemed to convey the fee to the center of the street or highway.

The same rule of construction should be applied where the boundary is along the street or highway and the intersecting lines are described as running to the street or highway. But if it must be conceded that the grant does not convey the fee of the street, I concur in the opinion of Gray, J.

Orders affirmed and judgment accordingly.

Andrews, Oh. J., and Peckham, J., concur with Gray, J.; Earl, Finch and O’Brien, JJ., dissent.  