
    Adolph Lewisohn, Appellant, v. Lansing Company, Respondent, Impleaded with Alexander E. Orr and Others, Defendants.
    First Department,
    May 17, 1907.
    ítéal property — easement — way over street with air; light and access — only grantees of party reserving easements entitled thereto •— presumption of grant of easement contradicted by deed — easement extinguished by adverse possession — effect of former adjudications upon right to easement — facts not showing abandonment or adverse user.
    When lands separated by the center line of a proposed street are conveyed to different grantees, each grantee being vested with the fee to the center of the street and one grantee subsequently conveys his portion, reserving “a sufficient right of way” through said projected street, the reservation being made only in favor of the grantor and her heirs, is'not available to the successor in title to the grantee of the .adjacent portion of the street, he not taking title through the person making the reservation.
    Although a description bounding property upon a street, or referring to a map upon "which the street is delineated, amounts as between grantor and grantee to a dedication "by the grantor'of the bed of the street if owned by him, and confers upon the grantee a right of way and perpetual easements in light and air, whether the portion of the. street he conveyed" to him or whether-the fee of the whole he reserved by the grantor, said rule is merely one of .presumption which vanishes when the deed itself indicates a contrary intention.
    When lands are conveyed to different grantees divided by the center line of a proposed street and one grantee incloses his-property with a fence built on the center line, which he maintains for over twenty years in a manner to preclude
    • any idea that he held it for street purposes, the easement of the other party, if any, is extinguished by. adverse possession.
    Although in a contest over an award on eminent domain to unknown owners, it is determined that the title to the center line of a proposed street is in one owner, the adjudication is not conclusive that the other owner has no easement over the street if that issue was not raised and decided.
    A prior adjudication that a grantor vested his grantees with private easements in a "proposed street, - the fee of which he retained, with light, air and access, conclusively establishes such easements in favor of subsequent grantees of the lands. ■ •
    Tlie fact that one having a right to easements in light, air and access over a proposed street makes claim to an absolute title to the fee of the street does not constitute an abandonment of his easements.
    An easement acquired by grant will not be deemed to have been abandoned by nonuser, hut only upon clear and convincing proof of an intention to abandon.
    • The owner of the easement by also claiming a fee in the ¡servient estate cannot he said to hold the latter adversely to .himself.
    ■ Appeal "by tbe plaintiff, Adolpb Lewisohn, from a .judgment of-the Supreme Court in favor of the defendants, entered in the office of tbe clerk ;of the comity of New York on tbe 11th day of December, 1906, upon tbe decision of tbe court, rendered after a trial at tbe New York Special Term, dismissing the complaint upon tbe merits.
    
      David B. Ogden, for tbe appellant.
    
      Edward B. Whipney, for tbe respondent. ■
   Scott, J.:

Tbe plaintiff, owner in fee of" a. plot of land abutting upon the northerly side of One Hundred and Fifty-seventh street between Broadway and the Boulevard Lafayette in the city of New York, claims, and by this action seeks to enforce, easements of light, air and access over the land in front of his property constituting a part of One Hundred and Fifty-seventh street as the same is shown on the official city map, although the street at this point has never been ■formally opened or acquired by the city.

From a judgment dismissing his complaint upon the merits the plaintiff appeals. The defendant is the owner in fee of the bed of the street in front of plaintiff’s property, and claiming to hold it free from any easement in favor of plaintiff’s property, has inclosed it with a fence and erected a building thereon. It is not to be disputed that if plaintiff is entitled to the easements he claims, the structures erected by defendant are violative thereof. The property involved in this litigation, as well as that now, owned by defendant,* constituted part of a large tract owned at one time by Samuel Watkins who, on August 16, 1843, conveyed a tract, including the southerly half of One Hundred and Fifty-seventh street, to Victor G. Audubon, and on November fifteenth of the same year conveyed another tract, including the premises now owned by plaintiff, and the northerly half of One Hundred and Fifty-seventh street, to Matthew Morgan. Up to this time no streets had been opened, and no official map had been filed laying out .the city above One Hundred and Fifty-fifth street, which was the northernmost transverse street shown on the map of 1807. The territory north of that street was ■ wild woodlands, except so much thereof as was-occupied by the residence of John J. Audubon and a serpentine road which led up to his house. The deed to Victor G. Audubon conveyed a tract of land extending to and bounded on the north by the center line of One Hundred and Fifty-seventh street. It is to be noted that although this deed mentions One Hundred and Fifty-sixth and One Hundred and Fifty-seventh streets and uses their center line as boundaries, it does not refer to- any map or plan on which these streets were shown, nor was any such map or plan then on record. There was such a map, however, attached to the deed from Watkins to Morgan dated November 15,1843, upon which the streets from One ' Hundred and Fifty-sixth to One Hundred and Sixtietllstreets inclusive are shown, and by express reference to .which that deed was made..

Whether or not Watkins and Audubon had this map in mind when the deed between them was made does not appear, but it is conceded that that map correctly shows the locus in quo at that.time, and the lines of One Hundred, and Fifty-seventh street-as shown-on that map coincide' with, the lines of . that street as now laid out on the official map. By these deeds, therefore, Audubon became the owner in fee of the southerly half. of the street and Morgan became the owner in fee of the northerly half, the cent.er line of the .street constituting the dividing line between their properties. At about this time of shortly thereafter a fence was erected along the center line and it or its substitute was maintained until 1893, the half .of One Hundred and Fifty-seventh street lying south of the fence being used and occupied as a part of the Audubon estate. In 1850 Victor G. Audubon conveyed to his mother, Lucy Audubon, the property which he had acquired from Wátkins, and in 1851 she reconveyed a portion' of it to him, including so much of the-south-' erly half óf One Hundred and Fifty-seventh street as is involved in this action, reserving for herself and her heirs “ a sufficient right of way through and along that part' or portion of the 12th -avenue and 156th street, lltli avenue and 157th street” as were included in her deed,-“ for' all lawful purposes to use the same as a public road.” This reservation, as we consider, com fers no right upon the plaintiff. It was made only in favor of the grantor and-her heirs, and as jilaintiff does not hold his title through her he can take no .benefit of .any private easement under her reservation and, in any case, all that is reserved is a “ sufficient right of way,” and not the whole street. It does not appear that Lucy Audubon or her heirs ever availed themselves o'f this reservation, and Victor G. Audubon continued to keep the property inclosed by a fence. • After Victor G. Audubon’s death in 1860 his widow and executrix conveyed to Helen L. Grinnell a piece of property which included so much of the southerly half, of One Hundred and Fifty-seventh street as is involved here, either she or her husband apparently being then the owner of the land.Jying south' of the street. Helen L. Grinnell established a garden over the southerly .half of the street up .to the fence along the center line and maintained it with substantially the same fence until 1878. or 1879. The defendants hold title to the southerly half of the-street through. Helen L. Grinnell. As to the southerly half the plaintiff relies upon the familiar and well-established rule that a description bounding property upon, a street or avenue or referring to a map upon which the street or avenue is delineated amounts, as between the grantor and grantee, to a dedication by the grantor of the bed of the street or avenue for a street, if owned by him, and confers upon the grantee the right to use it, and perpetual easements of light, air and access over it, whether any portion of the bed of the street or ' avenue be conveyed to him, or whether the fee of the whole of it he reserved by the grantor. Hence, it is argued that Audubon acquired through his deed from Watkins not only the fee to the southerly half ' of the street, but also perpetual easements of light, air and access over the northerly half which was‘reserved by the grantor and, conversely, that so much of the bed of One Hundred and Fifty-seventh street as was in terms conveyed to Audubon by the deed from Watkins was held by him subject to a like easement in favor of the land reserved by the grantor. There can be no doubt that the rules of ' law upon which this argument is based are generally, applicable where lots are hounded upon a street, or described by reference toa map upon which streets are shown: But these rules are rules of ' presumption and rest upon an implied grant or reservation of easements for street purposes,-and the presumption and implication vanish when the deed itself indicates a contrary intention upon the part of the parties to it. This very _ question came before this court recently upon a state of facts strikingly similar to those in the . present case. (Matter of City of New York (W. 211th St.), 109 App. Div. 575.) That case ■ related to property embraced in the Dyckman estate, of ; which a map had been made aiid filed showing the proposed streets and avenues. In 1860 John H. Dyck- ' man, the then owner, conveyed the whole tract to one Sacchi without reference to the map aud without reference to the streets and avenues shown upon it. Sacchi conveyed certain lots to the appel- ' lan't’s grantors by descriptions which referred to the map on file, and expressly included in the conveyance one-half of the bed of the proposed street as shown upon the map. '

Sacchi had other lots which he retained and subsequently sold.

The question was whether or not Sacchi had impliedly reserved, in favor of the lots retained by him, easements of light, air and access ' over the bed of the street which had been in terms conveyed to the appellant’s grantors.. It was held that there had been no such reservations, the .court saying through Mr. Justice Ingbaham: “Mo easement was expressly reserved, and if one was reserved' it must be by implication. There Was conveyed an estate in fee simple in and to the .property conveyed which 'included oue-half of - the street. The express terms of these conveyances are inconsistent with an intention that this street should remain open either as a public street, or for. the use of the owners of the other lots. ■ That each grantee of a lot or lots to whom was conveyed the absolute unin-' cumbered fee of one-half the street' became the owner of that property free from any easement in favor -of the grantees of adjoining lots upon the street, seems to me to follow from the express language used in the: deeds where there is no easemqpt of any kind reserved to each grantee.” This language, applied to similar facts, states the -rule to be applied in the present case, arid seems to be a complete answer to tile plaintiff’s claim .that the deed to Audubon of the southerly half of One Hundred and Fifty-seventh street contained an implied reservation of easements for light, air and access in favor of the property retained by- -Watkins. Even -if there had been such an implied reservation we are of opinion that the easements became extinguished by adverse -possession. As soon as Audubon acquired the property he inclosed so much of the street as was covered -by his deed with a fence, and he and his successors in title not only kept it so inclosed continuously for some fifty years,- but during that time used it in a manner to. preclude any idea that he held it for street purposes. Thus he -had an absolute deed without any express reservations, and openly and notoriously occupied the bed of the street south of the center line for purposes entirely inconsistent-with its use as a street. ■ As to so much of One-Hundred and Fifty-seventh, stréet as lies south of the center line, the judgment in defendant’s favor is right. So far as concerns the northerly half of the street other considerations' are presented. Matthew Morgan, Watkins’ grantee, in 1850 conveyed a plot to Dennis Harris, bounding it in part by the' center line of One Hundred.and Fifty-seventh street, thus investing Harris with the title'in fee to, the northerly half of the street. In 1853 Harris conveyed a portion of- the .property to his son-in-law, John Dailey, by a description which bounded the plot conveyed by .the northerly side of One Hundred and Fifty-seventh street. Dailey, claiming that this deed conveyed to him the half of the street directly in front of his lot, as well as the land within the boundaries' expressed in the deed, proceeded to take possession of and occupy the northerly half of the street. In November, 1868, Harris’, widow and devisee conveyed to George Blake Grinnell the northerly half of the street, then actually occupied under a claim of title by Dailey. The plaintiff’s title comes through Dailey, the defendant’s through Grinnell. In 1878 the respective claims of Dailey and Grinnell to the ownership of the northerly half of the street came before the Court of Appeals in a contest over an award to unknown owners in a condemnation proceeding and it was held that the.title was in Grinnell. ■ (Matter of Department of Parks, 73 N. Y. 560.) This is of coürse a conclusive determination, as between the parties here, that Grinnell acquired title to the northerly half of the street by his deed from Mr. Harris. The-respondent insists that it is also a conclusive adjudication that Harris had no easement over the street, in favor of his plot bounded upon it, because if he had any such easement he could have claimed a part of the award by virtue thereof, and that the judgment as to the disposition of the award is conclusive- not only as to what was decided, but also as to every other matter which, under the issues, the parties might have litigated.' There is no doubt as to the conclusiveness of the' award as between Grinnell and Dailey. Each claimed the whole award and Grinnell prevailed. As to the subject-matter of the controversy, viz., the right to receive the award, the adjudication was final, and we do not doubt that after being defeated in his claim to the whole award Dailey would have been estopped from claiming any part of it from- Grinnell on the ground that he had an easement, for that claim could have been made in the proceeding for the award. This is as far as the adjudication can be extended. No question was involved in that proceeding-of any private easement vested in any individual. The sole question in controversy was the title to the fee of the land. The most that can be said is that neither party tendered any issue as to any easements, and no decisión as to their existence was required or was made. It is a familiar riile, supported by ample authority, that a grantor who sells lots and describes them as bounded by a street running through his own land, without including in the conveyance the bed of the street, creates a private easement for street purposes ■ in favor of his grantee, oyer the land laid out or designated as a street and of which he retains the fee. Harris made a number of conveyances, similar as to the manner of describing the land ' '.to the conveyances to Dailey, in all of which he bounded the lots by the projected streets and avenues. As -to these the Court of Appeals held that Harris had conveyed to his grantees private ease- . merits for street purposes of air, light and access over the land .within the lines of the projected streets of which he retained the fee in himself. (Matter of Eleventh Ave., 81 N. Y. 436.) . That case is a controlling authority for the proposition that by his deed , . to Dailey of the property now owned by the plaintiff, Harris granted an easement for street purposes, in favor of the lot conveyed, over the northerly half of One Hundred and Fifty-seventh street, then owned by him, and of which he retained the title. . These easements became appurtenant to the land conveyed to Dailey and followed it into plaintiff’s ownership, unless they were in some way extinguished. It cannot be successfully maintained that Dailey by claiming an absolute title in the bed of the street abandoned his claim to an easement therein. ( White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Matter of Board of Education, 24 App. Div. 117.) Nor is there any evidence in the case to support a claim that Dailey ever abandoned the easement. Whatever easement he acquired was by grant, being impliedly included in Harris’ deed to him. Such an easement will not be deemed to have been' abandoned by non-user, but only, upon clear and convincing proof of an intention by an. owner to abandon it. (Hennessy v. Murdock, 137 N. Y. 317, 326.) The mere fact that, before the street was Opened and before there was any occasion to use it as a street Dailey occupied, and even, inclosed it affords no presumption that he intended to abandon, as against any one else, the right to insist upon his easements. . There seems to be a little ground for finding that the easements were ever extinguished by adverse possession. Certainly Dallej’s possession was not adverse, although it may have been under an inconsistent claim. He was tire owner of the dominant estate and cannot be said to have been holding the servient estate adversely to himself. Although Grinnell obtained a deed of the northerly half of the street in 1868, Dailey remained in actdal physical possession until 1878. Grinnell never wholly occupied the northerly half. In 1879 he moved the boundary fence about ten feet north of the center line of the street, and in 1887 replaced it with a picket fence a few feet still further north, but at all times there was left a passageway about or nearly twenty feet wide, and in 1893 the whole triangle was clear of all fences. Our conclusion is that as to the northerly half of One Hundred and Fifty-seventh street in front of plaintiff’s premises he is entitled to easements of air, light and access, and that to this extent he is entitled to relief as prayed in the complaint.

The judgment will, therefore, be reversed and a new trial granted; but without costs in this court.

Patterson, P. J., McLaughlin, Houghton and Lambert, JJ., concurred. '

Judgment reversed and new trial ordered,...hut without costs in this court.  