
    John R. Smith, Appellant, v. Rebecca Smith, Respondent.
    First Department,
    June 14, 1907.
    Real property—easements — merger—when conveyances bounding lands on proposed street create easements thereover—right of easement not lost by failure of municipality to open street.
    When an owner of an easement also acquires the servient estate, he can continue the easement for the benefit of one part or the other as he chooses, and the rights of his- subsequent grantees depend upon the terms of the conveyances.
    When a grantor owning the bed of a proposed street, as well as lots abutting thereon, conveys the lots by a description bounding them upon the street, his grantees have a right'of way over the street for the purposes of access which is a right of property distinct from any public-use of the street, and they cannot be deprived thereof except by condemnation or purchase.
    When a prior owner, in conveying lands abutting upon a proposed street, has referred to a map delineating that street, a convej'ance by a subsequent owner which simply refers to the street by name, hut does not refer to the map, is as effective in regard to. the creation of easements- as if the -map ,liad been referred to.
    A right of way over a proposed street, created by a deed, is not lost because the street was never opened as a public street.
    McLaughlin and Houghton, JJ., dissented, with opinion.
    Appeal by tbe plaintiff, John B. Smitli, from a judgment of the Supreme Court in favor of tbe defendant, entered in tbe office of the clerk of the county of New York on the 3d day of December, 1906, upon the decision of the court, rendered after a trial at the New York Special. Term, dismissing the complaint upon the merits.'
    
      Richmond Weed, for the appellant.
    
      Leonard J. Obermeier, for the respondent.
   Scott, J.:

In this action tbe plaintiff seeks to enforce private easements of light, air and .access over lands belonging to defendant immediately in front of and abutting upon lands belonging to plaintiff, and from a judgment dismissing his complaint upon the merits the plaintiff appeals. The plaintiff owns'. four - lots of land, in tbe city-" of New York, which taken together contain one hundred feet on One Hundred and Third street-, extending hack one hundred feet nine inches .to the middle of the block, between One Hundred and Third and One Hundred- and Fourth streets, and bounded on the east by a line which once constituted the westerly line of Avenue A, as projected on the official city map. The defendant owns the land lying directly to the east of plaintiff’s property, her land being what formerly constituted the westerly half of -the bed of Avenue A, as shown on said official map..

It is not disputed that Avenue A was laid out as a street in 1807 by commissioners appointed under an act of the Legislature. In 18A1 a private owners’ map was made by Francis Nicholson, city surveyor, and filed with the land records of the city of New York. This map.corresponds as to streets and avenues with the official city map above mentioned, and on both maps the property now owned by plaintiff is shown as bounded on its easterly side by the property designated as Avenue A, now owned by defendant. The common source of title was one James S. L. Cummins, who owned both parcels of land in 1869. He derived his title by a series of con-' veyances from one Andrew McGowan, who conveyed the property (with numerous other lots) by a description which referred to the Nicholson map, giving the- map numbers of the lots as shown on said map, and bounding the lots by the streets and avenues shown, on that map (including Avenue A). The deed from McGowan, as, well as those which followed it, to aud .including the deed to Cummins embraced “ all of the right, title and interest of the parties of the first part in all the undivided half part of all the Streets and Avenues in front of and adjoining the premises above described,” and in all of the said deeds, except the one to Cummins, the words of grant were followed by the qualification subject to the use of the lands laid down on said'map as public streets and avenues by all the owners of the lots laid down'on said map, and by the public generally as public streets and avenues according to said map.” It appears to be quite clear that plaintiff "can base no claim against defendánt by reason of thff limitations above quoted. (Wheeler v. Clark, 58 N. Y. 267.) The effect of the conveyance to Cummins was that he acquired title both to the lots now owned by plaintiff and to the westerly part of Avenue A, and as between these two' properties he could create easements-over one. part for the benefit of the other or not as he chose. The description of the property conveyed , in his immediate deed, and in those which preceded it in the chain-of title, imported notice to him, however, that ' the streets, and avenues by which the lots were bounded were intended to be used at some .time as public streets. The plaintiff’s rights, if any, must rest "upon the conveyance by which Cummins disposed of the property. In 186ff Cummins executed a mortgage to the Equitable1 Life Assurance Society of twelve lots (including those now owned by plaintiff) in which he bounded them on the easterly side by the westerly side of Avenue A.- He thus retained in himself the fee title of the westerly half of "the roadbed of Avenue1 A, and the sole question in the case is whether he incumbered that fee with' private easements of light, air and access in" favor of the lots specifically covered by the mortgage, and which-abutted upon the avenue. This mortgage was afterwards foreclosed and since the referee’s deed relates back to the mortgage and conveys .all the title that the ■ mortgagor, had, we may most conveniently treat the mortgage as ,a deed of conveyance by Cummins. The case presented, therefore,, is that Cummins owning both -the lots, -abutting upon a proposed street and the bed of. the street, conveys the lots by a- description bounding them by the avenue, describing it as'Avenue A. I do not understand .that it is proposed at this late day to. question the. rule, firmly established by a multitude of authorities and succinctly stated in Lord v. Atkinns (138 N. Y. 184) as follows: “When the owner of land lays it out into .distinct lots ’with intersecting streets or avénties,- and sells the lots with refer- ; ence 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 á street, the purchaser and his grantees have an elasement in the street for the purposes of access, ■ which is a property, right.” And the same.i-esult follows where the streets -and avenues have Been laid out on a public or official map adopted by the parties as defining the limits and location of the property conveyed. - (Matter of Eleventh Ave., 81 N. Y. 436; Matter of Village of Olean v. Steyner, 135 id. 341, 345; Kerrigan v. Backus, 69 App; Div. 329; White's Bank of Buffalo v. Nichols, 64 N. Y. 73.) The easement thus impliedly granted is quite distinct, from any public right to usé the streets and avenues, and is a property right of which the owner cannot be deprived except by' condenanation or purchase. It is suggested, however, that the rule of law above quoted has no application to the present case because Cummins in his mortgage naade.no reference to any map or plan on which Avenue A was laid down. This, as I consider, is of no importance. Cummins was bound to know his own title, and so knowing it, he must have known that the several conveyances through which he derived title had expressly referred to the ¡Nicholson map. Furthermore, there was in existence at the dime the mortgage was made" the official map showing Avenue A laid out precisely as it was laid out on the ¡Nicholson map. When Cummins described the lots covered by his mortgage as running “ along the westerly side of Avenue A,” he must, of necessity, have intended Avenue A as. laid down on the ¡Nicholson map or the official map, for it was only on these maps (and the tax map) that Avenue A had at that time any existence. Under the circumstances existing at the time of .the mortgage, the mention of Avenue A as a boundary must be deemed to have the same effect, so far as the grant of an easement is concerned, as if the map showing that avenue had been expressly referred to.

Much reliance is placed by the respondent upon Matter of Brook Avenue (40 App. Div. 519; affd. on opinion below, 161 N. Y. 622). While there are undoubtedly expressions in that opinion which, read alone, would seem to favor the respondent’s contention, the question herein presented was not involved, and consequently was not intended tó be decided. The controversy there was over the payment of an award for opening the aveniie; and all that was decided was that the owner of the abutting lots was entitled to no part of the award, because by the opening of the avenue he received all that his deed entitled him to, that is, that the avenue should be opened and kept open as a public street; in . this regard following Matter of One Hundred & Sixteenth Street (1 App. Div. 439) and City of Buffalo v. Pratt (131 N. Y. 293).

Other casps are cited to us as tending in one way or another to qualify or limit the general rule upon which the plaintiff’s case re ts. It is Unnecessary to discuss or distinguish them at length, as that has already been done by the Court of Appeals in Holloway v. Southmayd (139 N. Y. 390). It appears in this case that Avenue A was never opened 0r worked as a public street; and that after the making of the Cummins mortgage, and before its foreclosure, the Legislature by an act.(Laws of 1875, chap. 494) altered the map of the city by striking therefrom Avenue A at this point. This, as I consider, had no effect upon- the plaintiff’s claim to enforce the private easement.such as was included in and covered by the mortgage. Such an easement, as has frequently been held, is property; and is,' by its very nature, as indestructible by the acts of the public authorities or of the grantors of the. premises.as is the estate which is the' subject of the grant and to which the easement is appurtenant. (Holloway v. Southmayd, supra, 402.) The often cited case of Whites Bank of Buffalo v. Nichols (64 N. Y. 65) is closely in point. In that case the defendant had acquired a private easement over Garden street, as laid out on a certain map, because the. conveyance undef-which he held had bounded his lot by the street, then only shown on a map, but not opened or even staked out. Thereafter the street was narrowed by municipal authority, leaving a strip of land between defendant’s property, as described in his deed with reference to the original line of the street, and the line of the street as narrowed and actually acquired and opened. The Court' of Appeals held that while the fee title to this strip remained in the original grantors or their successors, yet that the defendant’s private easement in and over it remained unimpaired by reason of the refusal of the public authorities to open it as a public street to its full original width, saying: “ 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 grantee is concerned it shall be continued, and that the grantee, his heirs and assigns shall have the benefit of it.” And again, “Neither the corporation of the cityj or the State authorities, or the grantor can do any act to impair this right or restrict the grantees in the enjoyment of it.”

Upon the undisputed facts the plaintiff was entitled to relief, and the judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the. event.-

Patterson, P. J., and Laughlin, J., concurred; McLaughlin ‘ and Houghton, LL, dissented.

McLaughlin, J. (dissenting) :

This action was brought to procure a judgment establishing a private right of way over certain real estate of- the defendant, and for an injunction and damages. The complaint was dismissed on the merits and the plaintiff appeals.

There is little or no dispute as to the material facts involved. In 1807 a street called Avenue A, running between One Hundredth and One Hundred and Sixth streets and parallel to and east of First avenue, was laid out on a map of the city'of New York, made by commissioners appointed under an act of the Legislature. In 1841 a private map known as “ Map of 236 lots lying in the Twelfth Ward of the City of New York ” was made, on which appeared Avenue A as laid out on the city map. Avenue A was never^ opened nor used as a street, and was stricken from the city map by an act of the Legislature in 1875 (Chap. 494), and while it does not, and in fact never did, exist as a street, except upon the maps, it is convenient in considering the question here involved to refer to it in locating the property which is the subject-matter of . this litigation.

Thé plaintiff is the owner of a tract off land situate on the northwesterly corner of Avenue A and One Hundred and Third street, extending 300 feet westerly along One Hundred and Third street, and approximately 100 feet northerly along Avenue A to the center of the block. The defendant owns the westerly half of Avenue A adjoining the plaintiff’s premises. Both parties trace their title to a common grantor, one Cummins, who became the owner in I860.* In 1869 he mortgaged the property now owned by the plaintiff, describing it as .follows: “All those twelve certain lots, pieces or parcels of land situate, lying and being in the Twelfth Ward of the Cify of New York,'bounded and described as follows: Beginning at a point formed by the intersection of the westerly side of Avenue A and the northerly side of One Hundred and Third street; running thence westerly along the northerly side of One Hundred and Third street Three Hundred (300) feet; thence northerly and parallel with Avenue A One Hundred (100) feet Nine (9) inches- to the centre line of the block; thence easterly along the said centre line Three Hundred (300) feet to the westerly side of Avenue A; thence along the westerly side of Avenue A One Hundred (100) feet Nine* (9) inches to the place of beginning.” This was the same description by which the property was conveyed to him, and the title to the property now owned by the defendant was conveyed to him. by adding' at the end of the description above quoted the following: “Together with all the right, title and interest of the parties of the first part to the streets in front of the premises hereby granted.” The words “right, title and interest” were sufficient, as will hereafter be seen, to lodge in Cummins the fee of the westerly half of Avenue A adjoining the plaintiff’s premises. The Cummins .mortgage was foreclosed' in 1876, and the plaintiff claims under the purchaser at the foreclosure sale, through mesne conveyances, each of which described the property conveyed precisely in the same way that it had been described in the mortgage. The question presented is,, has the plaintiff an easement or right of - way over the defendant’s land ?■ That he has' no public easement or any rights growing out of ór predicated iipon the map made by the commissioners of the city in 180’7, and .the striking therefrom or the discontinuance of such avenue in 1875, is clear. (Kings County Fire Ins. Co. v. Stevens, 101 N. Y. 411; Holloway v. Southmayd, 139 id. 390.) Indeed, I do not understand that the plaintiff claims any rights other than a private easement. The discontinuance of Avenue A by the city does not, of course, determine the question as' to whether or not the plaintiff has a private easement, because the destruction of a public easement does not destroy a private one. (White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Holloway v. Southmayd, supra; Matter of Adams, 141 N. Y. 297; Reis v. City of New York, 188 id. 58.) But I am of the opinion that the plaintiff has not a private easement in the land owned by the defendant. The fact, that an actual or- proposed street is used as a boundary in describing property does not, in and of itself, create any easement in ■ such street. The determination of that question necessarily depends upon the intent of the parties., to the grant, and in construing the grant for the purpose of ascertaining the- intent, the court will take into consideration the situation of tlie parties, the state of the thing granted at the time made, and in fact all the circumstances attending the transaction. (Matter of One Hundred & Sixteenth Street, 1 App. Div. 436; Matter of Brook Avenue, 40 id. 519 affd. on opinion below, 161 N. Y. 622; Matter of Mayor [Robbins Avenue], 83 App. Div. 513.)

In Underwood v. Stuyvesant (19. Johns. 181) the ..owner ■ of a parcel of land subdivided it into lots and made a map thereof on .which were shown certain streets upon which lots abutted, one of them being called Peter street. The owner then leased certain lots bounded on the west by the Bowery, which was an open public street, and on the north by Peter street. Peter street ivas not then open and was subsequently discontinued when a new plan of the city was made. The plaintiff claimed a right of way over Peter street as laid down on the map, but as he had access to his premises by the Bowery, the court held that the lessee had not the right to insist upon the conditional agreement oh the part of the lessor.

In Hopkinson v. McKnight (31 N. J. L. 422) it was held that a conveyance of a lot which was bounded upon an alley and street proposed to be laid out,” but which was never opened and used as a street, did not amount to the grant of an easement or right of way.

In Matter of Brook Avenue (supra) a grantor had conveyed property which, as here, fronted on an existing public street. On one side it was boúnded by the line of “ Brook Avenue as laid out by the department of public parks of the city of New York.” Brook avenue, like Avenue A, was never opened or used as a public street and it was held that the grantee acquired no private easement therein.

All of the plaintiff’s property has a frontage on One Hundred and Third street. Avenue A lias never been used, either as a public or private street. There is nothing to indicate that Oummins, in his mortgage, or any of the subsequent grantors of the lots now owned by the plaintiff, intended the grantees should have a right to any present use of the land included within the bed of Avenue A ór any other or further easement, except that which might accrue, to them if such*avenue should be opened as a public street; a contrary -intention, it seems to- me, necessarily must be inferred from the language used by Oummins in the mortgage and in the respective deeds of conveyance which thereafter followed. Iii considering the intention of the parties and the inferences to be drawn from the mortgage made' by Oummins, the history of the conveyances of the tract in question is important. All of the deeds of the property, previous to that which put the title in Cummins, conveyed the bed of Avenue A by the following words : “ Together with all the right, title and interest of, in and to the one-half part of the streets and avenues in front of and adjoining the premises above described, subject to the use of the land laid down on said map as public streets and.- avenues by all' the owners of lots laid down on said inap and by the public generally as public streets and avenues.” In Wheeler v. Clark (58 N. Y. 267) almost the identical, words ■ were used by a grantor in conveying lots along which ran an existing highway, and it was there held that upon the closing of the highway the grantees had no private easement over the street. That decision, it is true, is not directly in point because there the question arose between the owners of two lots abutting on the highway. It is, however, as it seems to me, important when applied to the language used in all of the grants from 1841 to and including the grant to Cummins as ascertaining his intent in omitting the words which-he did in describing the property mortgaged by him. The mortgage made by Cummins described the tract exactly as it had been described in. the deed to him, except that the rights in Avenue A were omitted. When the property was sold under the foreclosure of that mortgage in 1876 Avenue A had been stricken from the map. and it was then known that it was not to become a. public street-, and yet the referee’s deed and all subsequent deeds continued to use precisely the same description of the. property. The fact that Avenue A was thus used in describing the property, with no méntion of any private easement or right, although it had previously been stricken from the map and had "never in fact been opened or used as a street, indicates, as it seems to me, that Avenue A was used merely as a boundary of the land conveyed rather than tliat any rights in the avenue were intended to be included.

This conclusion is strengthened by the fact that the reservation of the fee in the street, if it were to be burdened with a private easement after the street had been stricken" from the city map, would have amounted to little or nothing so far as preserving property rights is concerned. It is also strengthened by the fact that the alleged right had never been asserted nor sought to be used, and that no claim was made by reason of it until nearly thirty years after the foreclosure of the Cummins mortgage, and a portion óf that time at .least the same had been occupied in open and notorious hostility to such claim.

The case is plainly distinguishable from those where a grantor has laid out his property into lots and streets and conveyed with reference to such streets, and for that reason the case of Lord v. Atkins (138 N. Y. 184) and other similar cases cited by the appellant do not apply. The deed which conveyed the property to Cummins described the property in the same way as the mortgage given by him, except it did not include the bed of the street. It is true the property was described as “ twelve certain lots,” and on referring to the map it appears that four of them fronted on Avenue A, but it is very significant that no reference was made in the conveyance to any map. The property was described by metes and bounds as a whole, and was and has always been treated as a single parcel. The word “ lots ” as thus used, under the facts here presented, is entitled to no more weight than the word acres ” would be. The plaintiff now owns this tract, extending, as we have already seen, 300 feet along One Hundred and Third street, an open and public street. Under all the circumstances I do not see how, if we are to follow Matter of Brook Avenue (supra), it can be maintained that the Cummins mortgage created any easement in favor of these lots in Avenne A, or that the plaintiff has any interest in the land owned by the defendant.

I am of the opinion that the judgment appealed from should be affirmed, with costs.

Houghton, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. 
      
       See Laws of 18071 chap. 115.— [Rep.
     
      
       See Laws of 1807, chap. 115.— [Rep.
     