
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title, Wherever the Same Has Not Been Heretofore Acquired, to West Two Hundred and Fourteenth Street (Although Not Yet Named by Proper Authority), from Kingsbridge Road to Harlem River, in the Twelfth Ward, Borough of Manhattan, City of New York. William B. Isham, Appellant.
    First Department,
    December, 1905.
    Basement—right of way on street laid out by grantor—when extinguished by adverse possession—eminent domain — error of commissioners in assessing land as subject to extinguished easement.
    When the original owner of lands who has, in a map thereof, laid out a certain street, which was never laid out by the public authorities, conveys such lands to various grantees by metes and bounds under warranty deeds giving a fee to the center of said street, and when a grantee holding title under such deed has inclosed his portion of the lands with a substantial fence which includes that portion of said street contained within his boundaries and has maintained such inclosure for over twenty, years to the exclusion of other persons, any easement or right of way, if any there were, over such portion of said lands is extinguished by adverse possession.
    When commissioners of estimate and assessment, in proceedings to condemn such lands, have assessed the value thereof as subject to said easement extinguished by adverse possession, the report should be sent back for correction.
    Appeal by William B. Isham from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1904, confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.
    
      
      Henry De Forest Baldwin, for the appellant.
    
      John P. Dunn, for the respondent.
   Ingraham, J.:

The commissioners awarded to the. appellant, as the owner of parcel 8 on the damage map, the sum of $875 and for parcel •No. 9 $562'. The owner of this property filed objections which were overruled at the' Special Term .and ■ the report of the commissioners confirmed, whereupon the property owner appealed. The commissioners based their award for these two parcels upon the existence of an easement to which the property taken, was subject, and it seems to be conceded that, ’if these two parcels of land were subject to-no 'easement, the commissioners proceeded upon the wrong theory 'and1 .the -court should have sent the report back to the commissioners for correction. The. learned judge at Special Term, in confirming the report of, the commissioners, said that The original existence -of the easement is hot open to question,” and proceeded to discuss the claim- of the appellant that whatever easément was created by the-conveyances, to- which attention will -be called, had been lost by the appellant’s adverse, possession of the property included within the bounds -of parcels '8 and 9 upon the damage map. '' ,

' There is no substantial dispute about the facts. Prior to the year 1860, a piece of property extending from the Kingsbridge road to the Harlem river, and from what is now Two Hundred and Eleventh to Two Hundred and Sixteenth ¡streets, was -owned by John H. Dyckman. It seems that he had prepared a map of that . property which was dated January-10,1860. Upon that map-certain streets designated as Two Hundred-and Eleventh to Two Hundred and Sixteenth, streets,, inclusive, and avenues designated Ninth .and Tenth avenues were laid -out, although no. map of the city -of' New York of this locality had been filed, and no such streets and avenues had been laid out by the public authorities. On January 23, 1860, Dyckman conveyed the entire property to one. Sacchi, without reference' to the map and without reference to any of the avenues nr streets upon it. On January 30, 1860, after Sacchi acquired title to the property,' the Dyckman map was filed ih the office of the register of the county of New York, and Sacchi sold and conveyed the lots into which the tract of land was divided. Title to damage parcel Mo.,8 was acquired by the appellant as follows: Lots 272 to 277 on the Dyckman map, inclusive, were conveyed by Sacchito one Bull by warranty deed dated December 31,1863, and by Bull to one Burling by warranty deed dated January 26,1865. These lots were conveyed by the following description: All those certain lots, pieces or parcels of land situated in the Twelfth Ward of the City of Mew York, being part of premises designated on a map entitled ‘ Map of 547 Lots in the Twelfth Ward of the City of Mew York belonging to John H. Dyckman, made by Andrew Findlay, Surveyor," 10th January, 1860, and filed in the office of the Clerk of the City and County of Mew York,’ and which said lots hereby conveyed are bounded and described as follows: * * * ■ Second: All those- six lots which on the said map are designated by the numbers 272 to 277 inclusive which taken together are bounded as follows: Beginning at a point on the northerly side of Two hundred and fourteenth street five hundred feet easterly from the northeast corner of said Two hundred and fourteenth street and Tenth Avenue; running thence southerly in a line parallel with Tenth Avenue, thirty»feet to the centre of the said Two hundred and fourteenth street; thence westerly in a straight line through the centre of the said Two hundred and fourteenth street one hundred and fifty feet; thence, northerly in a line parallel with the Tenth Avenue one hundred- and thirty feet to the centre of the block between Two hundred and fourteenth and Two hundred and fifteenth streets; thence easterly in a straight line through the centre of said block one hundred and fifty feet; thence southerly in. a line parallel with the Tenth avenue one hundred feet to the northerly side of Two hundred and fourteenth street, the point or place of beginning.” Burling, having thus acquired title to these lots by a description which included one-half of Two Hundred and Fourteenth street, conveyed them to the appellant by warranty deed, dated January 26, 1867. The description in this deed is as follows: “All those certain lots, pieces or parcels of land, situated in the Twelfth Ward of the City of Mew York, being part of premises designated upon a Map of 547 lots in the Twelfth Ward of the City of Mew York, belonging to John H. Dyckman, made by Andrew Findlay, SurVeyor, January 10, 1860, and filed in the office of the Clerk of .the City and County of New York,’ which said lots hereby conveyed are bounded and described as .follows: * * * Second:' All those six lots which on the said map are designated1 by the numbers 272 to 277 inclusive, and which are adjoining Two hundred and fourteenth street. * * * , Together with one-half of-the streets and avenues in front of and adjoining to all the abóvé-specified and numbered lots hereby sold and conveyed. . * * * The. said seve-ral lots above mentioned and numbered are parts and parcels of the-premises conveyed by Peggy and John IT. Dyck man, by warranty deed and with/ full covenants, to Gusta vus. A. Sacchi, dated-January 23, I860, and recordéd January 30, 1.860, and all which -said-lots above mentioned are more particularly described in the deed of Julia W. Bull, widow of the late Thomas F. Bull, dated the 26th day of January, 1865, and recorded October 16, 1866, to Gilbert Burling, to which said deed reference is hereby had and made for a more particular description of the. premises hereby conveyed.”

The title .of the appellant to damage parcel No. 9, was acquired as follows: Sacchi, by a‘deed dated the 31st of December, 1863, conveyed to Louisa Fischer Sacchi lots 266 to 271, inclusive, on the map by substantially the same description as parcel No. 8, except that the six lots conveyed adjoined on the east the lots of which damage parcel No. 8 was a part. Louisa Fischer Sacchi conveyed the same premises to the appellant by deed dated January 26, 1867 by substantially the same- description, With the exception of the lot numbers'upon the map. The conveyance of parcel No. 9 was of the same date as parcel No. 8. So far as- appears from this record all of the other lots fronting on Two Hundred and Fourteenth street were sold by deeds dated January 24, I860, and recorded January 3.0, 1860. Each ode of these conveyances contained substantially the same description as that employed in the conveyance to the appellant’s grantors, and included the fee of Two Hundred and Fourteenth street to the center line of the street in the front of ' l the property conveyed.

After Sacchi had conveyed the premises on Two Hundred and Fourteenth street, including the bed of the street, with the exception of the- twelve lots and one-half of Two Hundred and Fourteenth street in front, which was subsequently conveyed to appellant’s grantor, did there exist an easement to which the portion of Two Hundred and Fourteenth street reserved by Sacchi was subject? That question must be determined by the situation as it existed after Sacchi had conveyed all of the property on Two Hundred and Fourteenth street, with the exception of these twelve lots which are now owned by the appellant. Whatever interest Sacchi had in these lots,'including the portion of the streét upon which they abutted, has passed to the appellant, and unless there existed an easement after Sacchi had conveyed the other lots on Two Hundred and Fourteenth street, the property was not subject to an easement when acquired by the appellant’s grantor. In these various conveyances the lots were described by reference to the map, but the property conveyed was an absolute estate in fee simple to one-half of the street on which the lots abutted. No 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 one-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 unincumbered 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 easement of any kind reserved to each Tantee. It was undoubtedly contemplated when these conveyances ere made that at some future time there would be a street which would coincide with the street as laid down on the map, but it 'eems to me that it was entirely inconsistent with the description in hese conveyances to infer what was intended by the grants to create nther a street for the use of the public or the grantees of the other ots. There would undoubtedly arise by implication a right of way f necessity from these lots to an abutting avenue, but the only reet that abutted upon the premises at the time was the Kings-ridge road on the west, the Harlem river being on the east. I ppose that the grantee of any of these lots would be entitled access to the lots to and from Kingsbridge road. I do not think, owever, that upon this record it appears that the portion of thq street called Two Hundred and Fourteenth street upon the map retained by Sacchi was subject to an easement or right of way of any of the adjoining property owners. He then conveyed the remainder of the property- fronting on Two Hundred and Fourteenth street as laid out. on the map, including the bed of the street, to the appellant’s grantors, and the appellant has succeeded to Sacchi’s title by conveyances containing descriptions- of the property expressly including this portion of the street conveyed. Immediately upon the appellant’s acquiring title to this property he pro- • ceeded to inclose, what he had purchased by a substantial in closure which included the ,bed of oner-half of Two Hundred and Fourteenth ..street upon which his property abutted, and that inclosure has been ■maintained from the date of -the conveyance in 1867 -to the time when this proceeding was commenced, a period of nearly forty years. • The learned judge at Special'Term, in disposing, of the claim by the] appellant, said: £! The character of the neighborhood was such that] ■theTe was no. need for any defined path .along the line of Two hun-l dred and Fourteenth street, or of some other streets, outlined on the! map, in view of the manner in which the land was used. .The streets thus outlined by the map and referred to in the several deeds were to be of value to the purchasers of the lots into which the land was divided, when the use of the lots required the use of the streets [ but, for the period of delay before the development of the citl reached" the point where these lots might profitably take the ou1| ward character of city lots* tile easement of way,’on, the line o| the streets, was.not of present value* and its non-use was in. no sens! significant of an intention to abandon it, upon the part of those 11 whom the right of way had been reserved.”. I do hot suppose th] the intention of those to whom a right of -Way:. had been reserve! if any such there were, was a very material inquiry in determinirl whether the appellant had acquired by adverse possession the. pro! erty free from the easement. It. is what the appellant, intended to j with his land that he-had purchased that is material* and it seel to me that the evidence is quite conclusive that he intended ! exclude from that property all other persons who might claim al right to it or to its use. He was in the absolute possession of. 11 property. “He claimed it under a deed which conveyed it - to hi by metes and bounds. He maintained about it a substantial incj ure. If any of the owners of the other lots upon Two Hundred and Fourteenth street intended to claim any right to use this strip others, they were bound to assert that right within twenty years after the appellant, having acquired the title to the property, had inclosed it with a substantial inclosure, excluding , all others from any interference with it. We held in Matter of Mayor of New York (73 App. Div. 394) that.an easement or right to use a portion of a piece of ground which was subject to an easement, laid out as a street, could be lost by non-user for fifty years where the land had, during that period, been occupied adversely. , In none, of the cases cited was it held that the owner of lands subject to an easement could not acquire an unincumbered title to the land by adverse possession of over twenty years. of land that had been retained by Sacchi after he had conveyed the balance of the property in Two Hundred and Fourteenth street to

I think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the report sent back to the commissioners for correction in accordance with the views here expressed.

O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and report sent back to commissioners for correction.  