
    HALLOWAY v. DELANO. [Action No. 2.]
    
      N. Y. Supreme Court, First Department;
    
    
      General Term, April, 1892.
    1. Deeds description; bounding on highway.] A deed describing the premises as “ beginning at a corner on the west side of the Bloomingdale road, at the northerly side of a private road leading to Hudson River, and running thence along the west ide of the Bloomingdale road aforesaid, north,” etc. and thence, by several courses, to the place of beginning.—Held, not to include the fee to the west half of the Bloomingdale road.
    
    2. The same; easement.] A grantee of premises abutting on a road or street whose grantor owns the fee to the center thereof, but excludes any portion of such street from the conveyance, acquires an interest or easement in such portion of the street as abuts the conveyed premises, distinct from the right of the public to use such street as a highway, that such abutting portion shall remain open as a street for light, air and right of access to the conveyed property.
    .3. The samei\ This right, although subordinate to the right of the public to use the road or highway, binds and controls the grantor’s interest in the street, and gives the grantee aright to insist that the grantor, or those claiming under him, shall not so use their interest in the street as to interfere with this right or easement.
    .4. The same.~\ Such right or easement continues after the discontinuance of the public use of the street as a highway, and as it deprives the grantor of the right of possession of the abutting portion of the highway, will defeat ejectment therefor by his heirs against the successors in title of the grantee in the deed.
    Appeal from judgment in favor of plaintiff entered on verdict of a jury. The action was brought by James W. Halloway against Franklin H. Delano to recover possession of certain lands.
    
      William G. Choate, for appellant.
    
      Tames A. Deering, for respondent.
    
      
       Compare the preceding case.
    
   Ingraham, J.

This action is ejectment to recover possession of a strip of land formerly a part of Bloomingdale road, between Ninety-second and Ninety-third streets, in the city of New York.

The question to be determined depends upon the construction to be given to two deeds, one from Charles Apthorp and others to William Jauncey and others, dated August 6,1799, and one from Charles Apthorp and others to Oliver Vanderbilt, dated February 28, 1800.

In the case of Halloway v. Delano (Action No. 1), decided herewith, we construed the deed of Apthorp to Jauncey as conveying the fee of the east half of the Bloomingdale Road, and the plaintiff has, therefore, failed, to show a title to the east half of the property, to recover which the action is brought.

The deed of Charles Apthorp to Vanderbilt, however, does not convey to the grantees the west half of such road, and the plaintiff, as heir at law of Charles Apthorp, is the-owner of the fee of the west half of said Bloomingdale road, between Ninety-second and Ninety-third streets.

The description in the Vanderbilt deed is : “ Beginning-at a corner on the west side of the Bloomingdale road, at the northerly side of a private road leading to Hudson River, and running thence along the west side of the Bloomingdale road aforesaid north 35 degrees, east 3 chains and 60 links, and thence by several courses to the place of beginning.”

This description plainly excludes the fee in front of' the premises. It is materially different from the description contained in the other deeds that we have had occasion to consider in these actions. I think, however, that the grantee named in the Vanderbilt deed acquired an easement in the west half of the street abutting on the premises conveyed by this conveyance.

In considering this question, the distinction between an easement granted by the deed in the road immediately abutting upon the property conveyed and in the portion of the road that does not so abut should be kept clearly in view.

In this case it is the right of the grantees of land bounded upon the highway when the grantor owns the fee of the highway in and to the portion of the highway that abuts upon his premises that is. to be considered, and not his interest in the road that does not so abut.

It is undoubtedly settled in this State that the grantee of a piece of land abutting upon a public street or highway acquires no private interest in such street or highway beyond the portion thereof that directly abuts upon the land conveyed.

It was so held in Wheeler v. Clark (58 N. Y. 267, 270), where CHURCH, Ch. J., delivering the opinion of the court, says: “ The plaintiff claims, however, that he is entitled to a private right of way over that portion of the old road in front of the defendant’s premises, and extending to the center; and he predicates this right upon two grounds, viz.: by prescription and by grant or a reservation in the nature of a grant,” and it was held that the plaintiff could not obtain such a right by prescription, that there could not be the requisite user under an adverse claim of right against the owner, and that all the grants conveyed to the grantee was that the owners of the lots and the public were to have the same rights, which were to use them as public streets, avenues and roads, and that they were to be kept open accordingly, that is as public streets, there being no intimation in the language of any right additional to that of the public or that any of the parties would possess any after the streets ceased to be used by the public, and the same rule was again applied in Kings Co. Fire Ins. Co; v. Stephens (101 N. Y. 411, 416).

The decision in these cases, however, does not apply to land in the street or highway abutting upon the premises conveyed. Thus in Kings Co. Ins. Co. v. Stephens (supra), which was an action brought to restrain the defendant from entering upon a strip of land to which plaintiff claimed title under a claim of right of way over the locus in quo, it was held that the city could, with the aid of the Legislature, close the street without specific compensation to the defendant, and did so effectually as against her so far as the locus in quo was concerned, and in speaking of the claim that the principle decided in Story v. New York El. R. R. (90 N. Y. 122), preserved to the defendant as an abutting owner a property in the street of which he could not be deprived without compensation, the court said: “ We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff’s premises and not of hers, and does not take from her the light, air, or convenience of access ; no right appurtenant to her lot as abutting on the street has been infringed.”

And in King v. Mayor (102 N. Y. 171) the question was as to the ownership of an award made to compensate the owners of property for damages sustained by the public closing of the street, and it was held that the plaintiff was entitled to the award, because when the street was closed and the damages sustained for which the award was made, the plaintiffs were the owners of the premises, and therefore became entitled to the amount which was awarded for the injury done, and that a subsequent conveyance of the premises did not convey the right to collect the award when made for the damages sustained by the closing of the street prior to the conveyance. What the court said in that opinion, is said in relation to the claim of the defendant, who was the subsequent grantee, that he and not the plaintiff was entitled to the award.

The other cases cited by plaintiff have been examined but do not expressly decide the question here presented, and do not require further comment.

That an owner of land does acquire an interest in a street abutting on his property, where the conveyance of such property to such owner bounds the property by the street, and where the grantor owned the fee of the street, even though the conveyance excludes the fee of the street, separate and distinct from the right of the public to use the street as a public road or highway, is clear upon principle and is settled by authority, and such right arises from the implied covenant in the deed, that when it conveys the property bounding it by the street, that there is a street, and that, so far as the property of the owner of the fee in the street is concerned, such parts of the street as abut on the property conveyed shall remain open as a street for light, air and right of access to such abutting property.

This easement, of course, is subordinate to the right of the public to use the road or highway, as such right the grantor had no power to convey or affect, but is a -right that binds and controls the grantor’s interest in the street whatever it may be, and gives to the grantee the right to insist that the grantor, or those claiming under him, shall not so use his interest in the street as to interfere with this right or easement acquired by the implied covenant contained in the grant.

This principle is most satisfactorily established by the supreme court of Massachusetts, in the case of Parker v. Framingham (8 Metcalf, 260, 267).

The question was there expressly presented and such -easement upheld by the court.

Chief Justice SHAW, delivering the opinion, says: “It seems reasonable and quite within the principles of equity, on which this rule is founded, to apply it to the discontinuance of the highway, so that if a man should grant land bounded expressly upon the side of the highway, if the grantor owned the soil under the highway, and the highway by competent authority should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantee’s right of way, or render it substantially less beneficial. Whether this should be •deemed to operate as an implied grant, or as an implied warranty, covenant and estoppel binding upon the grantor and his heirs, is immaterial.”

The opinion in this case would, in the abse-nce of controlling authority to the contrary, be a sufficient authority to establish the defendant’s right to an interest in that portion of Bloomingdale road abutting upon their property, and I think a consideration of the cases in this State ■show that this principle has been expressly approved and followed.

In the case of White’s Bank of Buffalo v. Nichols (64 N. Y. 65, 73), ALLEN, J., in delivering the opinion of the court, says: “ Where land is granted bounding upon a street or highway, there is an implied covenant that there

is such a way ; that, so far as the grantor is concerned, it shall be continued, and that the grantee and his keirs and assigns shall have the benefit of it,” citing as an authority the case of Parker v. Framingham (supra), and the principles stated in Parker v. Framingham were applied by the court of appeals in the case of De Peyster v. Mali (92 N. Y. 262, 267). That was an action brought to recover the: awards made by the commissioners for certain property taken for Riverside Park and Riverside Drive, and the court stated the rights of the respective parties in and to the westerly half of Bloomingdale road, which had been taken for such public use, as follows :

“ The plaintiff owned in fee the land in the westerly-half of Blqomingdale road, which land was subject to a. perpetual easment for the public road and a private easement for the owners of abutting land, and the Riverside-Drive was laid out in such road and took the place-thereof, and the land thereof was appropriated for the-same.”

An examination of this case in the supreme court (27 Hun, 439, 442) shows that that private easement was-acquired only by the grant of property bounding it on Bloomingdale road, thus expressly recognizing the right: of the owner, of the abutting property to á private easement in the road.

That case was decided by the court of appeals upon the principle that this private easement of the owner was not at all affected by the fact that the fee of Bloomingdale road had been acquired by the city in trust for a public street, but that the fee having been thus acquired by the city, the abutting owner enjoyed the same easement in the road that he had before enjoyed when the fee remained in the plaintiff. These authorities recognize the principle that where land is conveyed bounded upon a public road or highway, and the grantor owns the fee of the road, that such fee becomes at once subject to the easement which becomes appurtenant to the adjoining land, that the road or the interest of the grantor in the road shall be kept open as a public road, so that the abutting owner shall have a right to use such fee for light, air and means, of access to his abutting property, and that is independent of the right of the public to the road as a public road or highway.

The rights of abutting owners have been very largely -discussed by the courts of this State in the cases brought against the Elevated Railroad Company by property owners to recover for the appropriation by the Elevated Railroad Company of the streets of the City of New York.

In the case of Abendroth v. Manhattan Ry. Co. (122 N. Y. 1) and Kane v. N. Y. Elevated R. R. Co. (125 Id. 164, 175), the question was presented as to what interest, if any, an abutting owner had in the streets of the City of New York, the fee of which was. in the city, and where there were no covenants ' by grant, either express or implied, that the street should be kept open as public streets, and the opinion in both of these cases recognized the right of an abutting owner where he has received a conveyance bounded upon an existing street, where the grantor owns the fee of the street, to an easement that the street should be kept open as a public street, and that the right to its use for light, air and means of access became appurtenant to the abutting property.

Thus, in the Kane case, ANDREWS, J., says: “ We do not perceive that these grants either weaken the plaintiff’s case or strengthen that of the defendants. The defendant does not claim under the grantees, and if the fee of the street is in private persons their title is nominal merely, and as against them the plaintiff has clearly a prescriptive right; nor could such title prevent the acquisition by the plaintiff and his predecessors, of rights against the public in the nature of easement under the views hereinbefore stated.”

In the Story case (90 N. Y. 122, 145) the right of the plaintiff to recover was expressly placed upon the implied covenant in the deed from the City of New York to Story’s, grantor, which “secured to the plaintiff the right and privilege of having the street forever kept open as such for that purpose. The dedication, the sale in reference to it,, the conveyance of the abutting lot with its appurtenances, and the consideration paid, were in themselves sufficient.”

The judgment in the case adjudges that the plaintiff recover of the defendants the possession of the property described in the complaint, and as it appears that plaintiff is not entitled to the possession of such property, the judgment must be reversed.

There are other questions presented, but.as for the reasons stated the judgment must be reversed, it is not necessary now that they should be determined. Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., concurred.  