
    Jehiel Hymes, App’lt, v. William Esty et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Deed—Breach of covenant of warranty.
    While the fact that part of land conveyed with covenant of warranty was at the time of conveyance a highway and used as such is not a breach of covenant, yet when there is at the time of the purchase no indication of a street upon the lot, the questions as to whether the strip in question was actually and so obstructed as to preclude the presumption of any public easement there, and as to whether there was any indication of a public street, and whether the purchaser had notice, either actual or constructive, of the public easement should go to the jury.
    3. Same—Res adjudicata.
    Some twenty years prior, a judgment had been obtained against the plaintiff herein, in which the issue involved was whether there was a right in the public to the strip of land as and for a street, but whether the place was used as a street or open or visible as such at the time of the sale in which the warranty was given was not involved. Meld, that plaintiff in this action for breach of covenant was not concluded thereby.
    Appeal from judgment of the supreme court of the fourth judicial department, affirming judgment of non-suit.
    
      J. H. Jennings, for appl’t; D. C. Bouton, for resp’ts.
    
      
       Reversing 46 Hun, 678, mem.
      
    
   Bradley, J.

The action was brought for an alleged breach of ■covenant of warranty, commonly known as covenant for quiet enjoyment, in a deed made by the defendant’s testator conveying to Byron A. Todd, lot 1, in block 88, in the village of Ithaca, and which the latter by deed with like covenant afterwards conveyed to the plaintiff. The alleged breach was the eviction of the plaintiff from a portion of the lot by the village of Ithaca, which had before such conveyance to Todd been appropriated as a part of a public street. The trial court held that no breach resulted from such appropriation and eviction and non-suited the plaintiff. It must be deemed the settled doctrine in this state that the fact that part of land conveyed with covenant of warranty was at the time of conveyance a highway and used as such is not a breach of the covenant This is so for the reason that the grantee must be presumed to have known of the existence of the public easement and purchased upon a consideration in reference to the situation in that respect. Whitbeck v. Cook, 15 Johns. 483; Huyck v. Andrews, 113 N. Y., 85; 21 N. Y. State Rep., 924. And such is the rule in Pennsylvania. Patterson v. Arthurs, 9 Watts, 152; Wilson v. Cochran, 46 Pa. St., 229.

But it is contended, on the psart of the p>laintiff, that such presumption did not arise in this instance, because there was at the time of the purchase by his grantor or by him no indication of a street upon the lot; and that the court erred in refusing to submit to the jury the questions whether at the time of the purchase of Todd from Esty the strip of land in question was actually and so obstructed as to preclude the presumption of any public easement there; and whether there was then or at the time of the plaintiff’s purchase any indication of a public street there; also, whether the plaintiff had notice, either actual or constructive, of the public easement, and whether the land in question was embraced in the conveyance of Esty to Todd. The defendant’s testator took title by deed in September, 1847, and conveyed May 1, 1869, to Todd who made the conveyance to the plaintiff in August, 1876.

The conclusion was warranted by the evidence that neither Todd or the plaintiff had any knowledge, at the time of the purchases by them respectively, of the existence of any street or of the right in the public to one upon the lot. That fact of itself is probably not important if the situation was such as to indicate it. This lot is bounded on the east by Tioga street, and it is claimed,, and there is some evidence tending to prove, that the northeast corner of the lot extended to, or very near to, Cascadilla creek, which runs northwesterly. The complaint is that the plaintiff' was evicted from twelve and a half feet in width at that corner next to the creek. There is evidence tending to prove that in 1848 Esty caused three oak piles to be driven in the creek at this, corner; and that he then claimed to own the land to where the piles were placed; that when Todd purchased Esty claimed that the northeast corner of the lot went into the creek; that there was then no indication of a highway or street there, but that the fence extended to within two feet of the creek, at which point was located the fence post, and that the post and the fence there had the appeai’ance of having been standing a long time; that the situation was not changed any at the time of the plaintiff’s purchase, except that the north panel of the fence had -been taken out simply to enable the occupant of the lot to pass from Tioga street to a barn erected on the back end of the lot; and that there were some other apparent obstructions, further down the creek, to the use of its bank as a public street.

In 1881, the village of Ithaca commenced an action against the plaintiff to enjoin him from maintaining, as he persisted in doing, a, fence at the northeast corner of the lot extending near to the creek, and that action resulted in a judgment perpetually restraining him from maintaining a fence nearer than twelve and a half feet from the creek, which space was determined to be within a public street, extending along the southerly bank of the creek from Tioga street on the east down the creek to Sears street. And from the record in that action it appears that a strip of land there twelve and a half feet in width bad been dedicated to the public irse as a street more than twenty years before the controversy between the parties to that action arose.

Upon this state of facts arises the question whether it was properly held, as matter of law, that the conveyance must in effect be deemed to have been made to Todd or to the plaintiff subject to the public easement, although the conclusion of fact was permitted that they severally purchased without any notice of it, and that there was then no indication of any street on the premises. To so hold is going further than did the court in Whitbeck v. Cook. There it was properly assumed that the highway was in use as such, and may have been seen by the purchaser, that he must be presumed to have known of its existence, and, therefore, purchased in reference to it. Such were substantially the views of the court in Wilson v. Cochran. And in Patterson v. Arthurs, Mr. Justice Kennedy, in delivering the opinion of the court, said that “ it is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it, and made himself acquainted with its locality, and the state and condition of it, and consequently if there be a public road or highway open or in use upon it, he must be taken to have seen it, and to have fixed in his own mind the price that he was willing to give for the land with reference to the road.” In the latter case in that state of People's Savings Bank v. Alexander, 3 Central Reporter, 388, it was held that the fact that a street had been lawfully laid out and not opened was such a defect in the title, which the vendor had undertaken to convey, as to relieve the purchaser from the obligation to perform his executory contract of purchase.

The only other case in our state, referring to the subject, to which our attention had been called, is Rea v. Minkler, 5 Lansing, 196, where it was held that the existence of a private way on the premises conveyed with warranty constituted a breach of the covenant. And there Mr. Justice Miller, after citing the Whitbech case, and assuming that it went to the extent of holding that a highway in existence at the time of the sale, and for a long time previously, is not a breach of a covenant of warranty, said he thought there was a broad distinction between a public and private right of way, and added: “ While the latter might be unknown to a purchaser, the former running through a farm would be seen when purchased.”

So far as relates to a private right of way this is supported by Huyck v. Andrews, supra. The exemption of the easement to the public in a highway from the operation of the covenant of warranty evidently rests upon the presumption arising from the opportunity furnished to the purchaser by its apparent existence or use to take notice of it, and when that is the situation the purchaser is charged with knowledge of it. But when no such opportunity exists, and no means of notice of the existence of the right to a public easement is open to observation upon the premises, there is no well-founded reason to support the proposition that the subsequent appropriation by the public, in the exercise of such pre-existing right, of a portion of the land conveyed, is exempt from the operation of the covenant of warranty. In such case it cannot be said that the purchaser, without notice of the existing burden upon the land, has taken title in reference to-it, or that he gets all the proprietary right in the premises which he is permitted to assume was assured to him by the covenant of his grantor.

That is within it which, in view of the apparent situation, the deed purports to convey. Mott v. Palmer, 1 N. Y, 564. It would not include the public easement in an open, visible highway or street.

From these views it follows that the trial court should have-submitted to the jury the propositions as requested, and that the direction of the non-suit was error, unless the plaintiff was concluded upon those questions by the judgment record in the former action. It there appears that the court found that more than twenty years prior to the time that cause of action arose against the defendant therein, plaintiff here, the strip of land was dedicated by the owner to the public use as a street; that it “ was thereupon accepted, improved and maintained as a public street by said village, and has been used, occupied and maintained as a public street or passageway for persons and teams for «the period of more than twenty-five years last past.”

The judgment entered upon the decision perpetually enjoining the defendant in that action from obstructing the passage by the public over that strip of land, was conclusive upon him and his privies as to the matters determined, and as to all matters which the parties may have legitimately litigated and had determined in that action. Jordan v. Van Epps, 85 N. Y., 427; Pray v. Hegeman, 98 id., 351; Bell v. Merrifield, 109 id., 203 ; 14 N. Y. State Rep., 796. But a judgment is res adjudicata as to those matters only which are within the subject-matter of the litigation, and those which, as incidental to or essentially connected with it, might legitimately have been litigated in the action.

The question, and the only issue necessarily involved in the-, former action, was whether there was in the public the right to the strip of land as and for a street, and when the existence of such easement was determined the purpose of the action was-accomplished. To that extent the adjudication is conclusive upon the plaintiff. But whether the place was used as a street, or open or visible as such, at the time of the sale by Esty to Todd, was not, so far as appears, legitimately within the purview of that action, or essentially for any purpose involved in its determination. That -fact, therefore, was not material to that controversy, and for that reason the plaintiff in this action for breach of covenant is not concluded by any expression in that respect in the findings of the court in the former action. People v. Johnson,. 38 N. Y., 63 ; Sweet v. Tuttle, 14 id., 465 ; Woodgate v. Fleet, 44 id., 1; Stowell v. Chamberlain, 60 id., 272; Belden v. State, 103 id., 1; 3 N. Y. State Rep., 8; Cromwell v. County of Sac, 94 U. S., 351.

_ In the view taken, this action, and its purpose, may be consistent with the existence in the public of the right which the village of Ithaca in the former action sought to have determined. It does not appear that such right was dependent upon continuous user by the public. Nor can it be assumed, from what appears by the record before us, that such user was essential to render the dedication and acceptance effectual to support the public easement

No other question seems to require consideration.

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

All concur, except Follett, Gh. J., and Haight, J., not sitting.  