
    (71 Hun, 285.)
    HAIGHT et al. v. LITTLEFIELD et al.
    (Supreme Court, General Term, Third Department.
    September 15, 1893.)
    1. Amendments of Pleadings—Power of Referee.
    Under Code Civil Proc. § 1018, conferring on a referee all the power of the court with regard to amendments of pleadings, the refusal of an amendment by a referee at the close of a case is within his discretion, and, unless such discretion is erroneomly exe.c.sed to the applicant’s prejudice, it will not cause a reversal.
    2. Dedication—Highway—Easement Apfitrtenant.
    Where land is dedicated as a street by the vendor of defendant, from which latter person plaintiff purchased a portion abutting on such street, the street became appurtenant to plaintiff’s premises, giving the latter an easement in the street as against defendant, although the street was never accepted by the public authorities.
    3. Same—Effect of Non user.
    Plaintiff’s rights 'in such streets are not affected by nonuser.
    4. Equity—Remedy at Law.
    The remedy of plaintiff against defendant for obstructing his right of way is in equity, there being no adequate remedy at law.
    Appeal from judgment on report of referee.
    Action by Samuel J. Haight and John W. Clark against Dennis G-. Littlefield and- the Littlefield Stove Company to enjoin the obstruction of a right of way, and for damages for said obstruction. From a judgment for plaintiffs, defendants appeal.
    Eeversed.
    Argued before MAYHAM, P. J., and PUTNAM and HEBEICK, JJ.
    W. Frothingham, for appellants.
    I. & J. M. Lawson, (Isaac Lawson, of counsel,) for respondents.
   MAYHAM, P. J.

This is an appeal from a judgment entered upon the report of a referee, in favor of the plaintiffs against the defendants, for a mandatory injunction, commanding and directing the defendants to remove certain fences, embankments, ditches, and alleged obstructions from lands or premises described in the plaintiffs’ complaint as a strip or street 50 feet wide, called “Pleasant Street,” and enjoining the defendants from interfering with or obstructing- the free passage over the same by the plaintiffs, and from a judgment of $500 damages for alleged interference with such land or way. The plaintiffs derive title to premises adjoining the alleged street or way by deed dated the 15th of June, 1885, from the defendant Dennis G-. Littlefield and wife. The entire premises so conveyed to plaintiffs, together with the lands constituting the alleged street or way, originally belonged to the estate of Stephen Van Eensselaer. On the 23d of November, 1868, the executors and trustees named in the last will of Stephen Van Eensselaer conveyed to the defendant Dennis G. Littlefield, by deed, the same lands, with others, which are now owned by the plaintiffs, bounding the lands so conveyed to the defendants, as described in said deed, by a “street of at least fifty (50) feet wide, to form the southerly boundary of said premises, being hereby declared to be dedicated to the public as a street, to the extent only of the northerly and westerly line of the premises hereby conveyed, the aforesaid described premises being the same as represented on a map hereto annexed.” On the 13th of February, 1877, the defendant Dennis G. Littlefield and wife executed to Henry 0. Littlefield a deed, whereby they conveyed to the said Henry 0. Littlefield the premises described in the deed to Dennis, substantially as therein described. On the 26th of July, 1877, Henry 0. Littlefield executed and delivered to the defendant the Littlefield Stove Company a deed of conveyance of the premises described in the conveyance of Dennis G. above referred to, substantially as therein described. On the 1st of August, 1870, the executors of Stephen Van Eensselaer conveyed to Dennis G. Littlefield lands adjoining the lands mentioned and described in the first deed to Dennis G. Littlefield, but lying on the south side of the street described in the first-mentioned deed. In this conveyance the street in question in this action is referred to in the following language:

“The street mentioned and described in the within conveyance as a street of fifty (50) feet, including strip of ten (10) feet in width from the south side of the lot conveyed to the said Dennis G-. Littlefield November 23, 1868, is, by the parties hereto making and accepting this deed, dedicated and appropriated to the public for a public siivt t, for. ver, and is to extend of the same width and in continued lines easterly to Broadway.”

The deed from Henry 0. Littlefield to the Littlefield Stove Com-pony described the street as a street of 50 feet in width, and designated it as “Pleasant Street,” and described the lands therein conveyed as being on the south line of Pleasant street, and as being a portion of the premises conveyed to Dennis G. Littlefield by the executors of Stephen Van Eensselaer, dated August 1, 1870.

The complaint alleged that the strip of land of 50 feet in width, designated as a street, and as “Pleasant Street,” was open and unobstructed, and was used as a way of passage and a highway by the plaintiffs and others to and from the premises adjoining the same, both on the northerly and southerly sides thereof, at the time of the execution and delivery to Dennis G. Littlefield of the two deeds of conveyance to him; and that, from and by the deeds of conveyance, the strip of land described as a street 50 feet wide, and as “Pleasant Street,” became and was dedicated as a street or highway for the use of persons ow'ning and occupying lands adjoining the same on the northerly and southerly sides thereof; and that thereby the plaintiffs became the owners of the easement therein, of a right of way over the same for themselves, their employes, vehicles, teams, etc., to and from every part of the premises conveyed to them as abutting thereon. The complaint also alleges that the defendants have constructed and are maintaining upon this street various fences and embankments and ditches, which, 'it alleges, obstruct and prevent the free enjoyment and use by the plaintiffs of the easement or way which the plaintiffs allege is a legal appurtenant to the premises purchased by them of the said Dennis G-. Littlefield, and that the plaintiffs have suffered damages by reason of such obstruction; that they have no adequate remedy at law for the alleged interference and obstruction; and ask the equitable relief set forth in the complaint and awarded in the judgment. The answer of the defendants denies most of the allegations in the complaint.

The first point urged by the learned counsel for the appellants as a ground for reversal of this judgment is that the referee erred in not allowing defendants to amend their answer on their application at the trial. The allegations of the complaint were that the various deeds, subsequent to the Van Rensselaer deed, contained substantially the same description of the street as those contained in the Van Rensselaer deeds, and that they described the street as a street 50 feet in width, and as “Pleasant Street.” These allegations were not denied in the answer, and the defendants on the trial moved to amend the same by inserting a denial. The referee denied the motion to amend, and the defendants excepted. The motion to amend was at the close of the case, and we are not prepared to say that the refusal by the referee to allow the proposed amendment at that stage of the trial was an error for which this judgment should be reversed, or that such amendment would have been “in furtherance of justice.” It is true that the objection was put upon the ground that the referee had no power to make such amendment, but the referee, in his decision denying the motion to amend, stated no ground. While, by section 1018 of the Code of Civil Procedure, the referee is invested substantially with all the powers of the court in the allowance or rejection of proposed amendments to pleadings, yet the exercise of that power vests in the sound judicial discretion of the court or referee; and unless that discretion is erroneously exercised, to the prejudice of the party asking for an amendment, the determination of the referee should not be treated as ground of reversal. We do not see that any injurious results followed to the defendants from the refusal of the referee to allow the amendment. We are not referred to any authority by the learned counsel on either side bearing upon this question. All the deeds of conveyance under and through which the plaintiffs derive their title bound the land conveyed on this strip or piece of land, dedicated by the terms of the original deed as a street, and known and described in some of the deeds as “Pleasant Street,” and in the original deed from the trustees of Van Rensselaer it was described as a piece of land or street of 50 feet in width; and the referee finds, upon sufficient evidence, we think, to support such finding, that, immediately upon the plaintiffs’ entering into possession, they erected on the premises conveyed to them, on or along the south line of this street, extensive buildings for manufacturing purposes.

But it is insisted by the learned counsel for the defendants that, although the grantors in the Van Rensselaer deed designated and described this strip of land 50 feet wide as a street dedicated to the public, yet, the public never having accepted or adopted the dedication, it never became operative as to the public, and that the plaintiffs can therefore claim nothing under it. It is quite true that the evidence does not affirmatively show an acceptance on the part of the public authorities, such as is required to constitute it a public street; but we think, within the authorities, that it became an appurtenant to the premises purchased by the plaintiffs, and that, as such, the plaintiffs had a right, as against the defendants, who succeed to the interest of Van Rensselaer, the original grantor, to have the whole 50 feet remain open and unobstructed for the use of the premises purchased by them as a way or street. Story v. Railroad Co., 90 N. Y. 145; Child v. Chappell, 9 N. Y. 255; Hills v. Miller, 3 Paige, 256; Trustees v. Cowen, 4 Paige, 510. The use of this street or way was, by the Van Rensselaer conveyance ■and the maps, constituting a part thereof, dedicated for the purposes of a street and way, to the lands described in and conveyed by said deed, and the grantees and successors thereby acquired a right to the use of the 50 feet, and an easement over the same, and the whole thereof, which they may properly insist upon as appurtenant to the lands acquired by them. Cox v. Karnes, 45 N. Y. 557; Village of Olean v. Steyner, 135 N. Y. 341, 32 N. E. Rep. 9; Bank v. Nichols, 64 N. Y. 73; Welsh v. Taylor, 134 N. Y. 460, 31 N. E. Rep. 896. In the latter case the court, in discussing the effect of a grant somewhat like the one under which the plaintiffs claim, uses this language:

“A person who acquires title by a deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land; hence his title is not aifected by nonuser, and uni ss others show a gams; him sime adverse possession, or loss of title in some of ilie ways recognized by law, he may rely on the existence of his property, with full assurance that, when the action arises for its use and enjoyment, he will find his rights therein absolutely unimpaired.”

The plaintiffs, being therefore entitled to the free - and uninterrupted use as a right of way of these 50 feet sought to be dedicated by the original Van Rensselaer deed, may maintain their action against the defendants, restraining them from permanently obstructing said right of way, and commanding them to remove such obstruction. As the evidence establishes, and the referee finds, that such obstruction constitutes an interference with the plaintiffs’ rights, for which there seems to be no adequate remedy at law, the only action at law which could be brought by the plaintiffs would be an action for damages for obstructing the way, and thus impairing its usefulness as appurtenant to the plaintiffs’ premises. Such an action would not supply the plaintiff With an adequate remedy for the injury sustained by encroachment upon the space previously allotted to plaintiff by his deed as a way of ingress to and egress from his premises, as all that he could recover in an action at law would he the damages sustained up to the time of the commencement of the action, and his right of way would still remain obstructed, resulting in an irreparable injury to bis property; unless the obstruction was removed; and its removal can only be decreed in a court of equity. Baron v. Korn, 51 Hun, 402, 4 N. Y. Supp. 334, affirmed in 127 N. Y. 224, 27 N. E. Rep. 804. We are therefore clearly of the opinion that the case is one for the equitable cognizance of this court.

We have carefully examined the exceptions to the findings and conclusions of the referee by the defendants, and to Ms refusals to find on defendants’ request, and find none of those exceptions well taken, except the eleventh exception, which relates to the rights of the plaintiffs to recover damages for the alleged illegal Interference with plaintiffs’ property rights. We think that exception well taken, and that the plaintiffs should not, under the proof in tMs case, recover pecuniary damages for the defendants’ alleged interference with their property. We are therefore of the opinion that the judgment entered upon the report of the referee should be so modified as to strike out the recovery of $500, and, as modified, the decree should be affirmed, without costs of this appeal to either party as against, the other. Let an order of affirmance be entered according to this opinion. All concur.  