
    Theodore Westlake, Resp’t, v. Rosina Koch et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 31, 1892.)
    
    1. Deed—Reservation.
    In 1856 one Flagler conveyed to Weed, resppndent’s grantor, in order to enlarge the latter’s front yard and straighten the highway, a strip of land along and in front of his farm, 500 feet in length, 13 feet wide at the centre and running to nothing at the ends, the grantee to hold the same for the uses and purposes of a highway only, and the parties “reserving the same privileges as they now have on the highway,” as at that lime located. The land retained by Flagler was higher than the highway, and his grantee dug out the earth and built a retaining wall about three feet in height along the west line of the strip purchased, leaving the remainder in the highway. Respondent purchased the strip with the farm lying east of it and both parties repaired the wall when necessary until 1886, when appellants, who had built a house west of the wall and had used passage ways through it to the highway, took possession of the entire wall to the exclusion of plaintiff. The trial court in an action of ejectment gave judgment that defendants had a right to the use of the highway, but directed that plaintiff have possession of the strip including the wall, reserving to defendants three passage ways. Held, error.
    2. Same.
    The recital in the habendum clause that the strip was to be used for no other purpose than a highway, in connection with the reservation immediately following and the grantee’s alteration and the dedication of the strip, resulted in a change in the location of the highway by which the grantors reserved to themselves the same privileges on the altered highway as they had on the old highway, which had been unrestricted.
    S. Same—Private nuisance. ,
    The maintenance of the wall adversely to defendants’ rights and injurious to their lands would be a private nuisance.
    (Parker, J., dissents).
    
      Appeal from, a judgment of the general term, second department, affirming a judgment for plaintiff entered upon the decision of the court upon the trial at the Orange special term.
    
      A. H. Seeger, for app’lts; Darwin W. Esmond, for resp’t.
    
      
       Reversing 29 St. Rep., 283.
    
   Landor, J.

Ejectment for a strip of land forming part of the public highway. In 1856 Elagler owned a farm adjoining the West side of the public highway leading from Newburgh to Marlborough. Weed owned the farm directly opposite and adjoining the east side of the same highway. Each owned to the center of the highwajr. The general course of the highway was straight,, but there being a hill bn the west, or Flagler’s side, the highway curved around the base of the hill and thus deviated from a straight line. Weed lived on the east, and desiring to enlarge his-front yard and straighten and improve the highway, purchased the strip of Flagler sufficient to enable him- to do so. The deed from Flagler to Weed conveyed the strip in question to Weed and all Flagler’s right, title and interest in the highway. Thehabendum clause in the deed recited that the grantee was to bold the granted strip “ for the uses and purposes of a public road or highway and for no other use or purpose whatever,” and then this reservation followed : “ the said parties of the first part reserving the same privileges on said public road or highway as they now have on the highway as at present located in front of the lands owned by said party of the first part.”

Upon receiving the conveyance Weed straightened the highway, enlarged his Own door yard by moving his front fence westerly, graded down the hill upon the westerly side of the highway and built a retaining wall upwards of 400 feet long, and about three feet high, against or very near to Flagler’s higher land and within the strip conveyed by the deed. Since 1856 the strip, has been used as a highway and Weed and his grantee, the respondent, have, as occasion required, repaired the wall. By subsequent conveyances the plaintiff acquired Weed’s title, and the defendants Flagler’s. In 1879, the defendants built a house upon their premises upon the west of the highway and wall, and opened and have since used a passage way from the highway to their house and also opened and used another like passage way at another point through the wall, and before the commencement of this action took possession of the entire wall to the exclusion, of the plaintiff and the denial of his right to maintain it.

The trial court found that the premises described in the complaint were dedicated and accepted as a highway and have formed part of it for over twenty years; that the defendants are abutting owners on said highway and have the right to the free and uninterrupted use of it as such. Judgment, however, was directed for the plaintiff for the possession of the strip in question including the wall, reserving to the defendants three specified passage ■ways of thirteen feet in width through the same, and • enjoining them from interfering with the wall.

I think the judgment should be reversed. The recital in the habendum clause that the strip was conveyed for no other purpose than a highway may not of itself restrict the full title granted, but this recital in connection with the reservation immediately following, and the grantee’s subsequent alteration of the highway and dedication of the strip to the public as a highway, show what was meant by the reservation. “ A reservation is never of any part of the estate itself but of something .issuing out of it, as for instance, rent, or some right to be exercised in relation to the estate." Craig v. Wells, 11 N. Y., 321.

The reservation in this deed aptly and explicitly expressed the. privileges reserved. There was intended to result from this grant, and did result from it, a change in the location of the highway, and the grantors reserved to themselves and for the benefit of their land the same privileges on the altered highway as they then had on the old highway. Their privileges were then unrestricted by any dominant right of the owner of the land on the opposite •side of the highway, and they remain equally unrestricted now. But this judgment if sustained restricts their privileges of ingress and egress to the three places of thirteen feet width each in a frontage .of over 400 feet, and denies them any other rights with respect to the highway except such as they may enjoy subject to the perpetual barricade of this wall. Before the highway was altered and the wall built no such restrictions existed. The maintenance of the wall adversely to defendants' rights and injurious to their lands obviously would be a private nuisance. Driggs v. Phillips, 103 N. Y., 77; 3 St. Rep., 65; Swords v. Edgar, 59 N. Y., 34.

To enable the plaintiff to maintain ejectment for any part of the highway to which he has the title subject to the public easement, the defendants must, have taken exclusive possession of it or imposed upon it some burden inconsistent with the public easement. Reformed, Church v. Schoolcraft, 65 N. Y., 150; Wager v. Troy Union R. R. Co., 25 id., 526. As between the parties the defendants have not taken possession of any part of the highway. The highway, as plaintiff and his grantor established it, is bounded •on the west by this wall, and the plaintiff cannot assert, to the prejudice of the defendants' reserved privileges, that the wall is not the boundary between defendants' land and the highway. Plaintiff’s claim that because the wall stands upon the edge of the granted strip it is therefore wholly his cannot be allowed in the sense that he may maintain it there adversely to the defendants.

If the plaintiff chose to remove the wall and grade the highway up to the exact boundary line a different question would be presented. But the judgment awards him the land upon which the wall stands and restrains the defendants from interfering with the wall, thus nullifying the reservation in the defendants’ favor and thus imposing a burden upon the land, which, under the terms of the grant, they have the right to remove or to lessen by any reasonably practicable means.

As they have done no more than was consistent with the enjoyment of their privileges, their possession of the wall was not wrongful

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

All concur, except Parker, J., dissenting, and Brown, J., hot sitting.  