
    George B. Johnston, Respondent, v. Long Island Investment and Improvement Company, Appellant.
    
      jDeed — the words “beginning at the intersection of the easterly line of Main Road or Turnpike, now known as Flatbush Avenue,” construed — the actual ownership should not control the construction — buildings held not to show intention as to street line—words “subject to encroachments as shown on survey” construed.
    
    The owner of a tract of land who had acquired title thereto under a deed which described the premises as “ beginning at a point in the easterly side of the Flatbush Turnpike Road ” entered into a contract for the sale of the premises which described them as “ beginning at the intersection of the easterly line of Main Road or Turnpike, now known as Flatbush Avenue,” and provided that the premises should be conveyed “ subject to encroachments as shown on survey.”
    Upon the trial of an action brought by the vendee to compel the specific performance of the contract, it appeared that the main road or turnpike was merged in Flatbush avenue and that the easterly side of Flatbush avenue was eight feet east of the easterly line of the old main road or turnpike. The court found that the vendor had no title to such eight feet.
    At the time the contract was executed there were a number of buildings on the premises which were on the easterly line of Flatbush avenue as laid out. The distance between the buildings and the curb was twenty-one feet. The encroachment shown on the survey was the overlap of a frame building situated on land belonging to the vendor adjoining that contracted to be conveyed. The encroachment was, for a distance of fifteen feet, about four feet, and was patent and visible, and the vendee knew of its existence. It was the ultimate purpose of the vendor to remove the frame building.
    The court granted a decree of specific performance, which required the vendor to execute a conveyance describing the premises as “ Beginning at the intersection of the easterly side of Flatbush Avenue as now laid out,” and in effect determined that the deed should not provide that the conveyance was subject to the encroachment shown upon the survey, but it did give to the vendor the right to remove the encroaching building, within a reasonable time.
    
      Meld, that the evidence did not justify the court in directing the execution of a deed in the form prescribed by the decree.
    
      
      Semble, that the phrase “now known as Flatbush Avenue” was inserted in the contract as a further and more familiar description of the road or turnpike, and that the starting point contemplated by the contract was the easterly line of the' old main road.
    
      Semble, that the fact that the vendor did not own to such easterly line was not sufficient to require another construction.
    
      Semble, that the situation of the buildings on the premises contracted to be conveyed was not sufficient to establish that a different boundary line was intended.
    
      Semble, that by the reference in the contract to. the encroachment shown by the survey the parties did not contemplate an exception or reservation of the fee of the land covered by the encroachment, but that they did intend that the encroachment should be permitted to continue until such time as the vendor chose to remove the encroaching structure.
    Appeal by the defendant, the Long -Island Investment and Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, decreeing the specific performance of a contract for the sale of real estate.
    
      A. G. F. Yermil/ya, for the appellant.
    
      Francis E. Dana, for the respondent.
   Jenks, J.:

The plaintiff has judgment for specific performance by the vendor of real estate. The learned Special Term has interpreted the contract as it was written. The decree requires a deed from the vendor which apparently does not conform to the contract in two respects: (1) A part of the description in the contract reads: “ Beginning at the intersection of the easterly line of Main Hoad or Turnpike, now known as Flatbush Avenue,” and (2) the contract provides: Also subject to encroachments as shown on survey.” The deed required by the decree reads: “ Beginning at the intersection of the easterly side of Flatbush Avenue as now laid out,” and the decree in effect determines that the deed cannot provide that the conveyance is subject to an encroachment shown on the survey. The main road or turnpike is merged in Flatbush avenue as now laid out, and such avenue as so laid out is widened so as to extend to the east, eight feet from the old line of the said main road. Hence, .if the point of departure is from that road, it is eight feet within Flatbush avenue as now laid out. The court has found that the defendant has no title to the said strip of eight feet. I cannot conclude that the words now known as Flatbush Avenue ” are so controlling as to warrant both the rejection of the rest of the. description easterly line of Main Road or Turnpike,” and also the construction that the words now known as Flatbush Avenue ” are synonymous with “ Flatbush Avenue as now laid out.” The deed embracing these premises which conveyed the tit1© to the defendant in 1899, reads: “ Beginning at a point in the easterly side of the Flat-bush Turnpike. Road,” and the insurance policy issued thereon insures the premises, excepting, inter alia, the light of the city to acquire title to any portion of the premises described in Schedule A, lying within or forming a part of any street, avenue or road, as actually laid out and opened or as laid down on the town survey commissioners’ map. The plaintiffs witness McElroy testifies that the main road or turnpike, although- not legally known as Flatbush, had been put down on the map as such. It strikes me that. as the turnpike was practically merged in Flatbush avenue, or as the avenue practically took the place of the road, the phrase “ known as Flatbush Avenue ” was inserted as a further and more familiar description. The words are not necessary Or essential to a description, and, if erroneous, may be regarded as superfluous. Where there is an irreconcilable variance- between a named boundary complete in itself and a further familiar description of that boundary, I think that the descriptive term must yield. (Jackson v. Loomis, 18 Johns. Ch. 81, 84; Masten v. Olcott, 101 N. Y. 152.) If the phrase “ now known as Flatbush Avenue ” was inserted merely for the purpose I have indicated, and so has not controlling force, then I do not see how it can have the force to make .the boundary “ Flat-bush Avenue as now laid out.” For it is to be remembered, to reverse the term, that Flatbush avenue, known as the main road or turnpike, is not the Flatbush avenue as now laid out. When all of the evidence on this matter was in, and within ten questions of the close of the case, the learned justice presiding at Special Term, said: “ I am against you on that; the hundred feet is from the easterly line of the old Turnpike, I think that is plain from the language of the contract.” The construction of the learned Special Term seems to rest mainly upon the facts that to begin from the main road or turnpike is to take a point within Flatbush avenue, as now laid out, and upon the use of the descriptive term “ now known as Flatbush Avenue.” But suppose the evidence established conclusively that the eight feet between the line of the turnpike and Flatbush avenue as now laid out had been legally acquired from the defendant or its predecessors before the contract was executed, and that it had no legal title to convey them. This fact alone did not authorize the court to construe the contract as referring to Flatbush avenue as now laid out. The court could not recast a contract so as to make it refer to a line up to which the defendant did own, merely because it referred in express words to a line up to which the defendant did not own. I am' not now weighing this circumstance as evidence of intention, but as warrant in itself for rewriting the contract so as to award other land than that described in the contract. At the time of the execution of the contract, the parties executed a lease of the same realty. There are certain one-story buildings thereon, which are on the easterly line of Flatbush avenue as now laid out. In front thereof are platforms, extending about five feet, area and entrances, and from the line of the building, inclusive of the areaways, to the curb is twenty-one feet. I do not think that such situation of these buildings is sufficient evidence to establish .a different boundary line than, that described in the contract. Further, the plaintiff testifies: “ There was some dispute about how far that line extends back from the front of the street; whether it should end on the west side or iú the center of the street; it was decided, and written in between, that it should run to the center of the street.”

I assume that the provision as to the encroachment has some purpose. The encroachment shown on the survey is the overlap of a frame building situate on the adjoining land of the vendor." For fifteen feet the overlap extends over the line by about four feet. There is a fence along the line which, at the point of overlap, departs and runs to the west so as to exclude the extension. The encroachment was patent and visible. The defendant’s president testifies that it was the subject of talk with the plaintiff before the contract was executed. The plaintiff in' effect denies this, but testifies that he had séen the overlap a few months before the time for closing the title. The plaintiff was somewhat familiar with the premises. He had worked on the adjoining premises, and had held' a lease of the land for a considerable time. This is not a question of implication, but of express contract. Is it not probable that the defendant and the plaintiff intended to provide that so'long as this frame structure remained on the land of the vendor, the incidental encroachment should- not be disturbed ?. The testimony shows that it is the ultimate purpose of the defendant to remove the structure, and when this particular fabric was taken away or torn down,.the servitude, if such it be, would come to an end. (Heartt v. Kruger, 121 N. Y. 386.) The clause does not purport to secure to the vendor the mere ownership of the structure, severable from the realty, but it provides that the land shall be subject to the encroachment, i. e., the structure in its present' situation. Even a servitude or an easement may be created by agreement or covenant by exception or reservation in a grantor’s deed. (Andrus v. National Sugar Refining Co., 72 App. Div. 551, and authorities cited.; Washb. Ease. & Serv. [4th ed.] 34.) And it does not necessarily derogate from the title conveyed, for the vendee may still be vested with the realty in fee.- I may go so far as to say that although the parties did not contemplate an exception or reservation of the fee in the land whereon the structure stands, yet for aught that appears to the contrary they did intend that the structure should remain at rest upon the realty to be conveyed to the plaintiff. The learned counsel for the appellant insists that a man cannot encroach upon his own land. It is true that to encroach is to intrude upon, make gain upon, occupy or use the land, right or authority of another as if by a gradual or partial assumption of right (Anderson L. Diet.); to gain unlawfully upon the lands, property or authority of another (Bouvier Law Diet. [Rawle’s Rev.]); but the vice of the argument is that the. contract does not contemplate an encroachment upon one’s own land, but contemplates the land as in the vendee. The very purpose of the contract is to transfer the title to the land to which the provision applies. (Washb. Ease. & Serv. [4th ed.] 64,. 65.) This is not the construction of a provision in a deed, but of the clause in a contract for a-deed, and the question is what is the intention of the parties, to be gathered from the clause, and from the entire contract, and if there be a doubt as to the meaning, by consideration of the attendant circumstances which it is presumed were considered by the parties at the time of contract. (Clark v. Devoe, 124 N. Y. 120.) I do not seek to fetter or to forecast the discretion of the Trial Term. It may be that evidence elicited thereat will justify a judgment similar to the present judgment, or that the court will require partial performance with compensation, or that it will retain the suit in order to award damages to the plaintiff or grant other or refuse all relief. I simply advise the reversal of this judgment, for the reason that I think the evidence does not justify a judgment which requires the execution of a deed with the description directed, and without regard to the clause in the contract subject to encroachments as shown on survey,” save that it gives to the vendor the right of removal within a reasonable time.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  