
    Dwight Johnson et al., App’lts., v. The Shelter Island Grove & Camp Meeting Association, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 14, 1890.)
    
    1. Easement.
    Defendant, in 1872, caused a map to be prepared showing the proposed improvement of Shelter Island, embracing streets, avenues, parks, etc., and sold lots, and gave deeds referring to it, intended to secure to the purchaser the proper enjoyment of such improvements. Such map did not designate any portion of what is known in this case as “ The Ramble” as-public grounds, although a photolithograph map handed around at the sale contained the words “The Ramble,” and certain marks, which appellants claim meant public grounds. Held, that even if this were so, as there was on “ The Ramble ” a chapel site marked, and as there was no implied covenant that no other than religious use should be made of it, the defendant’s right to devote a structure on that site to some other purpose, such as a hotel, could not be denied.
    2. Same—Estoppel.
    The unauthorized statement of the president of the corporation, privately made to some of the purchasers at a public sale, of the determination of the association as to lands not granted, could not be effectual as an. equitable estoppel.
    (Vann, J., dissents.)
    Appeal from a judgment of the supreme court, general term? second department, entered on an order affirming a judgment of the special term in favor of the defendant. Also, from an order reversing an order granting an extra allowance.
    
      Joshua M. Van Cotí, for app’lts; William C. De Witt, for resp’t
    
      
       Affirming 14 N. Y. State Rep., 576.
    
   Parker, J.

The plaintiffs, by means of this action, seek to restrain the defendant from erecting upon lands to which it has a title, a building to be used for hotel purposes, upon the ground that it will interfere with the enjoyment of an easement which the plaintiffs as grantees of the defendant claim to have acquired in the premises.

In 1871, several persons united in the purchase of about three hundred acres of land on Shelter Island, bounded by Greenport bay, Deeringharbor, Chase’s creek, and aline running from Chase’s creek to Greenport bay.

Thereafter such associate purchasers were -incorporated by chap. 647, Laws of 1872. Before selling any portion of the land, the defendant employed a landscape gardener to devise a plan of improvements for the settlement, and to prepare a map representing such plan, and lay out With slight alterations the plan prepared by him for the improvement of the grounds was adopted by the defendant

It embraced streets, avenues and parks, and contemplated the erection of hotels,* cottages and other buildings, suitable for the enjoyment of the several members of the desired community. Shortly thereafter a sale of lots took place on the grounds of the association, at which time there were distributed among the persons present what purported to be a lithographic copy of the original map and oían. Subsequently a form of deed was adopted by the association which was intended to secure to the purchasers of lots the proper use and enjoyment of the streets, avenues and parks, and to the association the benefit to result from the construction of dwelling houses thereon.

The deeds recited the granting of all that certain lot and parcel ■of land situate on Shelter Island, in the town of Shelter Island, in the county of Suffolk, and state of New York, known and designated on a map on file in the office of the clerk of the county of Suffolk, entitled a “ plan of improvements for the Shelter Island Grove Association by Morris R Copeland as lot No.” etc. Now ■as to so much of the lands designated upon said map as appropriated to the use of the Shelter Island community as public grounds, whether designated as streets, avenues, parks or'places, each purchaser of a lot acquired therein distinct and independent rights by implied covenant, as appurtenant to the premises ■granted. An easement the enjoyment of which the defendant ■could not thereafter abridge. Lennig v. Ocean City Association, 56 Am. Rep., 16.

' But the map on file, and made a part of the deed by reference, did not designate any portion of what is known throughout this case as “ The Ramble ” as public grounds.

The conveyances, therefore, do not in terms purport to grant to these plaintiffs an easement in “ The Ramble.” But it is insisted ■on the part of the appellants that the facts found establish an -easement therein by way of equitable estoppel. The plan of improvements embraced all of defendant’s purchase, except about fifty acres, the surface of which, in the main, consisted of precipitous hills broken by deep ravines, and it was not deemed feasible in the early stages of the enterprise to make use of it for building purposes.

And it was a portion of this tract which the plaintiffs insist was -embraced in the original plan of improvements as public grounds. And in support of their claim is presented the finding that the ■president so stated to two or more of the purchasers, which statement appears to have been privately made and without the authorization of the defendant’s trustees, together with the fact that photo-lithographic maps handed to the purchasers at the place in controversy contained the words, “ The Ramble,” and, also, certain marks which it is urged was the symbol adopted by the defendant association to indicate public grounds. The trial ■court in appropriate findings expressed the conclusion that the small lines or dots of which the so-called symbol, appearing upon the photo map, was composed were not intended to indicate that the lands had been devoted to the use of the Shelter Island community. Such, too, appears to have been the view of the general term. And, if the findings in that respect are controlling here no room remains for the operation of the doctrine of equitable estoppel. For certainly the unauthorized statement of the president of the corporation, privately made to some of the purchasers at a public sale, of the determination of the association as to lands not granted, cannot be effectual for such purpose.

But it is said that the maps containing the alleged symbol designating public grounds are before this court, and therefore it can and should determine its purpose and legal effect. We think the necessity for such determination is not presented. That if as to it a conclusion should be 'arrived at agreeable to the contention of the appellants, and it should be further held that the other facts found considered in connection with it estopped the defendant, 'from using the grounds so designated for other purposes than a ramble or park, still we would be required to affirm the judgment upon the ground that it does not appear that the erection of the projected building will interfere with the plaintiff’s easement. Upon every map introduced there is shown in that portion of the grounds known as “ The Ramble ” a chapel site. So much of the grounds, therefore, as are embraced within the limits of the site were not granted to the Shelter Island community for the purposes of a ramble or park. On the contrary the right to erect a. building there was expressly reserved, and the intention to exercise it asserted.

The mere fact that the proposed building site was designated on the map as a chapel ” does not of itself constitute an implied covenant that one shall be erected, or if erected that no other than religious use shall be made of it, and without such covenant either expressed or implied the defendant’s right to devote a structure on that site to some other purpose cannot be denied.

, It is the policy of the law to encourage the most advantageous use of land. And the courts will not be diligent in searching for pretexts with which to check the enterprise of an owner of the fee at the behest of one who is not actually interfered with in the proper enjoyment of his easement.

The court has found as a fact that the annex or hotel is to-be built upon the spot where upon the map was located a chapel..

The right to erect a building, then, does not admit of question.. There is no express warranty that it shall be used for religious purposes only. ¡Neither do the facts permit the conclusion of an implied warranty to that effect. It was, therefore, incumbent upon the plaintiffs to point out by evidence, if it be the fact, how the change of user will abridge their enjoyment of the easement. This was not done, and for that reason, if for no other, the judgment denying injunction should be affirmed. The reversal of the order granting an extra allowance should be sustained. The easement was the subject-matter involved in the litigation, and its value was proper as the basis of an allowance. Lattimer v. Livermore, 72 N. Y., 174.

The defendant’s moving papers do not attempt to show the value of the alleged easement, and, therefore, fail to establish a foundation for an extra allowance.

The judgment should be affirmed, with costs to the defendant, and the order appealed from, with costs to the plaintiffs. ”

All concur, except Brown, J., not sitting, and Yann, J., dissenting.  