
    William Lord, App'lt, v. Albert H. Atkins et al., Resp'ts.
    
    
      (Court of Appeals,
    
    
      Filed April 25, 1893.)
    
    Highways—Dedication.
    In 1849 one K. conveyed fifty-seven acres of land to a college, the trustees of whicl^ divided the tract into village lots, bounded upon streets and avenues. Upon a map which they caused to be made, in 1858, of the northern part of the tract, East avenue was laid out three rods wide, running north and south. The easterly boundary was delineated for the full length of the street, but the westerly appeared only by a line for part of the way. The college project was abandoned, and the title to the village lots in question, in front of which defendants attempted to grade for a street, came to plaintiff through several mesne conveyances from the trustees of the college, in all of which East avenue is referred to, or the lots described as on the east side of, or on the avenue. Held, that these facts and circumstances justified the finding of the trial court that the locus in quo had become a public street or highway by dedication as to these parties, though the duties and burdens of maintaining it are not imposed upon the public until accepted in some way.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendants.
    
      Wm. J. Mantanye, for app'lt; A. P. Smith, for resp'ts.
    
      
       Affirming 48 St. Rep., 968.
    
   O'Brien, J.

The complaint charged the defendants with a trespass upon the plaintiff’s lands by entering upon them without authority, with teams, and plowing the same and injuring the plaintiff’s crops. The defendants justified their acts by alleging that the locus in quo was a public highway. The place had never been worked as a public highway before, but all the acts done or performed by the defendants upon the land in question were, confessedly, such as they could rightfully do upon the assumption that the locus in quo was in fact a public street or highway. The plaintiff claimed to own the land in fee free from any easement in favor of the defendants or the public for a street, highway or otherwise. The issues between the parties were mostly, if not wholly, upon questions of fact, and the courts below have found with the defendants. It is not claimed that the street was ever laid out by any public authority, but only that it was dedicated to the use of the public as a street or highway by the original owners of the land, and from whom both the plaintiff’s and defendants’ title is derived. The strip of land upon which the alleged wrongful entry was made was originally part of a parcel of fifty seven acres winch was conveyed to New York Central College by Gilmore Kinney in the year 1849. This deed recalls an interesting chapter in the political history of that day, recent enough to be within the memory of men still in active life. The college was projected by Gerrit Smith and others with a view to aid in the crusade that they had entered upon against the institution of slavery.'

It was intended, as we may assume, to be not only an instrument for the propagation of the principles of its founders, but a _ home where the fugitive from the South might be educated. The buildings were erected on this fifty-seven acres, and the projectors, with that hope and confidence which colored all their views of the future, anticipated that a considerable village would soon grow up and cluster around them. The trustees divided the tract into village lots, bounded upon streets and avenues. In 1858, they caused a map to be made of the northern portion of the tract, upon which these village lots and the streets and avenues were shown, and a written explanation was annexed to such map giving the location of the streets and avenues and the dimensions, location and number of the several village lots thereon. From this written statement it appears that East avenue was a street three rods in width running north and south. The eastern boundary is delineated on the map for the full length of the street, but the westerly boundary appears only by a line on the map three rods west of the easterly boundary, but extending south only about two-thirds of the length of the avenue, as claimed by the defendants. The land on the east is all divided and plotted into village lots, and numbered upon the map from one to eleven, the last named being the most southerly lot. Though the westerly street line is not delineated on the map in front of the lots on the south, from seven to eleven inclusive, yet these lots, with the others, are all described by numbers in the written statement attached to the map as bounded on East avenue. The locus in quo is in front of these seven lots on the west, and if the westerly line upon the map referred to was extended south the same distance as the easterly line, then it would be within the boundaries of the street, and the defendants had the right to grade and prepare the land there for use as a street. The court below has found that there was a dedication of the land in question to the use of the public as a street

The plaintiff is the owner of four acres in front and west of the seven village lots, and he claims that his title in fee extends to the west line of the lots as they appear on the map, which would exclude the street claimed, whereas the defendants claim that plaintiff’s easterly boundary and their westerly boundary are separated by a street three rods in width. The college is the common source of title, and it evidently intended to dedicate the strip of land in question to the purposes of a public street by the written statement attached to the map, describing the lots as on East avenue, though the westerly street line was not exhibited on the map for the whole distance north and south. In 1858 it became apparent that the college was not to be a success, and the trustees conveyed the whole tract to Gferrit Smith, excepting, however, . eight of the village lots “ lying on and east of East avenue,” which lots are described in the exception by numbers. This deed, therefore, recognized the existence of a street at the point in question.

In 1872 Smith conveyed the whole tract to McGraw, subject, however, to the reservations expressed in his deed from the trustees, and in 1884 McGraw conveyed about eight acres, including the college buildings, to the union free school. This grant extended to the east side of East avenue, and includes the street, but recognizes its existence as such. The same year the trustees of the school conveyed about four acres to the plaintiff. This grant extended to the east line of East avenue, and included the street, or the land which the defendants claim was subject to an easement for a street. The plaintiff, therefore, took his title with a distinct recognition in his deed of the existence of a street on the east side of it. It is of but little consequence that the deed assumed to convey the soil included in the street boundaries. The grantor could convey it subject to the easement, and that is the effect of the conveyance.

The important thing in the deed is that it recognized the existence of East avenue in front and west of the lands of the defendants. So the title of the defendants to the village lots, in front of which they attempted to grade for a street, came to them through several mesne conveyances from the trustees of the college, in all of which East avenue is referred to, or the lots are described as on the east side of, or on the avenue. These facts and circumstances justified the finding of the trial court that the locus in quo had become a public street or highway by dedication as to these parties, though the duties and burdens of maintaining it are not imposed upon the public until accepted in some way.

It is well settled that when the owner of land lays it out into distinct lots, with intersecting streets or avenues, and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. When, in such a case, a lot is sold bounded by a street, the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right. Story case, 90 N.Y., 145; The Trustees, etc., v. Cowen, 4 Paige, 510; Wyman v. The Mayor, 11 Wend., 487; Bissell v. N. Y. C. & H. R. R. R. Co. 23 N.Y., 61; White's Bank, etc., v. Nichols, 64 id., 65; Taylor v. Hopper, 62 id., 649; Huttemeier v. Albro, 18 id., 48.

The main contention of the plaintiff seems to be that after and about the time that Smith took the conveyance of the property from the college, he also foreclosed a prior purchase money mortgage, and took title under that, thus extinguishing all easements for street purposes originating after the college became possessed of the property. There is no finding to sustain this claim, though it does appear in the evidence that Smith did foreclose a mortgage, under the statute, given by the college for a portion of the purchase money, and purchased the land upon the sale. It is not important to inquire as to the purpose or effect of this proceeding, for, more than ten years afterwards, when Smith conveyed to Mc-Grraw, he limited the grant to such estate as had been conveyed to him in the deed from the college. He did not assume to convey any other or greater right, and it is under this conveyance that the plaintiff claims. In purchasing under the statutory foreclosure he could have recognized the division of the property, subsequent to the mortgage, into village lots intersected by streets and bounded thereon. Indeed, he was in equity bound to take notice of the new situation and recognize rights which had arisen in the meantime. That he did so.is shown by the fact that he subsequently conveyed the whole property subject to every easement or right that could have been enforced against the college, his grantor. Some exceptions taken at the trial are discussed upon the brief of the learned counsel for the plaintiff. We have examined them, and as they do not appear to present any legal error that could have prejudiced him, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  