
    James W. Holloway, Resp’t, v. Franklin H. Delano et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    1 Deed—Description—When does not convey to center op highway.
    Where the description in a deed commences at a point on the side of a street or road and runs along the side of such street or road, the land in such street or road is excluded and the same is not conveyed.
    3. Same—Ejectment—Easement.
    The grantee of land under a deed which bounds it upon a street, the fee of which is in the grantor, acquires a private easement of light, air and access in the street which is independent of the public right; and the grantor or his heirs cannot maintain ejectment as to abutting portions of the street after the same has been closed as a public highway.
    Appeal from judgment entered on verdict of the jury.
    
      W. G. Ghoate, for app’lts ;■ James A. Deering, for resp’t.
   Ingraham, J.

This action is ejectment to recover possession of a strip of land formerly a part of Bloomingdale road between 92nd and 93rd streets in the city of New York.

The question to be determined depends upon the construction to be given to two deeds, one from Charles Apthorp and others to William Jauncey, and others dated August 6, 1799, and one from Charles Apthorp and others to Oliver Vanderbilt, dated February 28, 1800.

In the case of Holloway v. Delano (Action No. 1) decided herewith, we construed the deed of Apthorp to Jauncey as conveying the fee of the east half of the Bloomingdale road, and the plaintiff has therefore failed to show a title to the east half of the property to recover which the action is brought

The deed of Charles Apthorp to Vanderbilt, however, does not convey to the grantees the west half of such road, and the plaintiff, as heir at law of Charles Apthorp, is the owner of the fee of the west half of said Bloomingdale road between 92 nd and 93rd streets.

The description in the Vanderbilt deed is: Beginning at a corner on the west side of the Bloomingdale road at the northerly side of a private road leading to Hudson river, and running thence along the west side of the Bloomingdale road, aforesaid, north 35 degrees east, 3 chains and 60 links, and thence by several courses to the place of beginning. This description plainly excludes the fee in front of the premises. It is materially different from the description contained in the other deeds that we have had occasion to consider in these actions.

I think, however, that the grantee named in the Vanderbilt deed acquired an easement in the west half of the street abutting on the premises conveyed by this conveyance.

In considering this question, the distinction between an easement granted by the deed in the road immediately abutting upon the property conveyed and in the portion of the road that does not so abut should be kept clearly in view.

In this case it is the right of the grantee of land bounded upon the highway where the grantor owns the fee of the highway in and to the portion of the highway that abuts upon his premises that is to be considered, and not his interest in the road that does not so abut.

It is undoubtedly settled in this state that the grantee of a piece of land abutting upon a public street or highway acquires no private interest in such street or highway beyond the portion thereof that directly abuts upon the land conveyed.

It was so held in Wheeler v. Clark, 58 N. Y., 270, where Church, Ch. J., delivering the opinion of the court, says :

“ The plaintiff claims, however, that he is entitled to a private right of way over that portion of the old road in front of the defendant’s premises and extending to the centre, and he predicates, this right upon two grounds, viz.: by prescription, or by grant or a reservation in the nature of a grant,” and it was held that the plaintiff could not obtain such a right by prescription, that there could not be the requisite user under an adverse claim of right against the owner, and that' all the grant conveyed to the grantee was that the owners of the lots and the public were to have the same rights, which were to use them as public streets, avenues; and roads, and that they were to be kept open accordingly, that is, as public streets, there being no intimation in the language of any right additional to that of the public or that any of the parties would possess any after the streets ceased to be used by the public, and the same rule was again applied in Kings Co. Fire Ins. Co. v. Stevens, 101 N. Y., 416.

The decision in these cases, however, does not apply to land in; the street or highway abutting upon the premises conveyed. Thus! in Kings Co. Ins. Co. v. Stevens, supra, which was an" action' brought to restrain the defendant from entering upon a strip of land to which plaintiff claimed title" under a claim of right of way over the locus in quo, it was held that the city could, with the aid of the legislature, close the street without specific compensa-' tian to the defendant and did. so effectually as against her so far' as the locus in quo was concerned, and in speaking of the claim that, the principle decided in Story v. The New York Elevated R. R., 90 N. Y., 122, preserved to the defendant as an abutting owner a property in the street of which he could not be deprived without compensation, the court said:

“We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff’s premises and not of hers, and does not take from her the light, air or convenience of access; no right appurtenant to her lot as abutting on the street has been infringed."

And in King v. The Mayor, 102 N. Y., 175, the question was as to the ownership of an award made to compensate the owners of property for damages sustained by the public closing of the street, and it was held that the plaintiff was entitled to the award, because when the street was closed and the damages sustained for which the award was made the plaintiffs were the owners of the premises, and therefore became entitled to the amount which might be awarded for the injury done, and that a subsequent conveyance of the premises did not convey the right to collect the award when made for the damages sustained by the closing of the street prior to the conveyance. But what the court said in that opinion is said in relation to the claim of the defendant, who was the subsequent grantee, that he and not the plaintiff was entitled to the award.

The other cases cited by plaintiff have been examined, but do not expressly decide the question here presented, and do not require further comment

'That an owner of land does acquire ah interest in a street abutting on his property where the conveyance of such property to such owner bounds the property by the street, and where the grantor owned the fee of the. street even though the conveyance excludes the fee of the street, separate and distinct from the right of the public to use the street as a public road or highway is clear upon principle and is settled by authority, and such right arises from the implied covenant in the deed, when it conveys the property bounding it by the street, that there is a street and that so far as the property of the owner of the fee in the street is concerned such parts of the street as abut on the property conveyed shall remain open as a street for light, air and right of access to such abutting property.

This easement of course is subordinate to the right of .the public to use the road or highway, as such right the grantor had no power to convey or affect, but is a right that binds and controls the grantor’s interest in the street, whatever it may be, and gives to the grantee the right to insist'that the grantor or those claiming under him shall not so use his interest in the street as to interfere with this right or easement acquired by the implied covenant contained in the grant

This principle is most satisfactorily established by the supreme court of Massachusetts in the case of Parker v. Framingham, 8 Metcalf, 267.

The question was there expressly presented and such easement upheld by the court.

Chief Justice Shaw, delivering the opinion, says:

“ It seems reasonable and quite within the principles of equity, on which this rule is founded, to apply it to the discontinuance of the highway, so that if a man should grant land bounded expressly upon the side of the highway, if the grantor owned 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 grantee’s right of way 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 upon the grantor and his heirs, is immaterial.”

The opinion in this case would, in the absence of controlling authority to the contrary, be a sufficient authority to establish the defendants’ right to an interest in that portion of Bloomingdale road abutting upon their property, and I think a considera-

tian of the cases in this state shows that this principle has been expressly approved and followed.

In the case of White's Bank of Buffalo v. Nichols, Allen, J., 64 N. Y., 73, in delivering the opinion of the court, says: “ When land is granted bounding upon 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 and his heirs and assigns shall have the benefit of it,” citing as an authority the case of Parker v. Framingham, supra ; and the principles stated in Parker v. Framingham were applied by the court of appeals in the case of De Peyster v. Mali, 92 N. Y., 267. That was an action brought to recover the awards made by the commissioners for certain property taken for Riverside Park and Riverside drive, and the court stated the rights of the respective parties in and to the westerly half of Bloomingdale road, which had been taken for such public use, as follows:

“ The plaintiff owned in fee the land in the westerly half of Bloomingdale road, which land was subject to a perpetual easement for the public road and a private easement for the owners of abutting land ; and the Riverside Drive was-laid out in such road and took the place thereof and the land thereof was appropriated for the same.”

An examination of this case in the supreme court, 27 Hun, 442, shows that that private easement was acquired only by the grant of property bounding it on Bloomingdale road, thus expressly recognizing the right of the owner of the abutting property to a private easement in the road.

That case was decided by the court of appeals upon the principle that this private easement of the owner was not at all affected by the fact that the fee of Bloomingdale road had been acquired by the city in trust for a public street, but that the fee having been thus acquired by the city the abutting owner enjoyed the " same easement in the road that he had before enjoyed when the fee remained in the plaintiff. -

That these authorities recognize the principle that where land is conveyed bounded upon a public road or highway and the grantor owns the fee of the road, that such fee becomes at once subject to the easement which becomes appurtenant to the adjoining land, that the road, or the interest of the grantor in the road, shall be kept open as a public road so that the abutting owner shall have a right to use such fee for light, air and means of access to his abutting property, and that is independent ofithe right of the public to use the road as a public road or highway.

The rights of abutting owners have been very largely discussed by the courts of this state in the cases brought against the elevated R. R. Go. by property owners to recover for the appropriation by the elevated R. R. Go. of the streets of the city of New York.

In the case of Abendroth v. The Man. R. Co., 122 N. Y., 1; 33 St. Rep., 475, and Kane v. The N. Y. El. R. R. Co., 125 N.Y., 175; 34 St. Rep., 876, the question was presented as to what interest, if any, an abutting owner had in the streets of the city of New York, the fee of which was in the city, and where there was no covenant by grant, either express or implied, that the streets should be kept open as public streets, and the opinion in both of those cases recognized the right of an abutting owner, where he has received a conveyance bounded upon an existing-street where the grantor owns the fee of the street, to an easement that the street should he kept open as a public street, and that the right to its use for light, air and means of access became appurtenant to the abutting property.

Thus, in the Kane case, Andrews, J., says: “We do not perceive that these grants either weaken the plaintiff’s case or strengthen that of the defendant.

“ The defendant does not claim under the grantees and if the fee of the street is in private persons their title is nominal merely and as against them the plaintiff has clearly a prescriptive right, nor could such title prevent the acquisition by plaintiff and his predecessors of rights against the public in the nature of easements under the views heretofore stated.”

In the Story case, 90 H.Y., 145, the right of the plaintiff to recover was expressly placed upon the implied covenant in the deed from the city of Hew York to Story’s grantor which “ secured to the plaintiff the right and privilege of having the street forever kept open as such for that purpose. The dedication, the sale in reference to it, the conveyance of the lot with its appurtenances and the consideration paid were in themselves sufficient.”

The judgment in the case adjudges that the plaintiff recover of the defendants the possession of the property described in the complaint, and as it appears that plaintiff is not entitled to the possession of such property the judgment must be reversed.

There are other questions presented, but as for the reasons stated the judgment must be reversed it is not necessary now that they should be determined. Judgment reversed and new trial ordered, with costs to the appellant to abide the event Van Brunt, P. J., concurs.  