
    In the matter of opening Thirty-second street, in the city of New York, from the 10th Avenue to the East river.
    ALBANY,
    July, 1838.
    Where a street is designated on the commissioners’ map of the city of New-York as passing over certain lands, and the owner of the lands subsequently sells and conveys city lots, bounding them on such street, such act alone, without any user by the public, is deemed a dedication of the land over which the street passes to the public use, so far forth that, on the opening 'of the street, the purchaser is entitled to only a nominal sum as a compensation for the fee.
    And the purchaser can claim no more, notwithstanding that the one half of the street immediately in front of and adjoining the lot conveyed to him is granted to him, where the grant is qualified by a clause that the portion of the street thus conveyed shall not be enclosed, but shall always be and remain open as a public highway.
    Thirty-second street, as laid down on the commission-. ers’ map filed in 1811, between the 8th avenue and a line about 200 feet east of the 7th avenue, passed through lands which in September, 1835, were owned by James R. Whiting. He laid out the lands on both sides of the street into lots of about 25 feet front and 100 feet deep, fronting on the street, except the lots at the corners, which were of the same dimensions, but fronted on the 7th and 8th avenues. In September, 1835, Whiting sold all the lots at public auc- " tion to different purchasers, except one lot on one of the corners, which he bid off himself. Two of the lots described in the deed as bounding on Thirty-second street, “ together with the one-half of Thirty-second street as laid out on said map [a map of the lots and street] immediately in front of and adjoining said lots,” were conveyed by Whiting to John A. Sidell. Two other lots, with the land in front, in Thirty-second street were described and conveyed in the same way. By the same deed, Whiting also conveyed to Sidell two lots described in the deed as bounding both on the 7th avenue, and one of them on Thirty-second street, together with the land adjoining the lots, and in-eluded within lines running along the centre of the avenue and street to the point of intersection. Then followed a clause in these words : “ The said last mentioned piece of land, and the said pieces of land herein before described, which on said map are laid out as a part of Thirty-second street, are not to be enclosed, but always to be and remain open as a public highway.” The deeds executed to the other purchasers were in the same form. The lands at the place in question, were at the time of the sale, and ever since have been enclosed in fence : the street having never been opened or used as a public highway.
    
      R. Emmett,
    
    for the corporation of the city, moved the confirmation of the report of the commissioners of estimate and assessment.
    
      A. Taber,
    
    on behalf of Sidell and Whiting, objected that nothing had been allowed them for the land which the corporation were about to take by their order for opening the street.
   By the Court,

Bronson, J.

The map, under which Mr. Whiting made his sales, designated the street and avenues as they had been previously laid down on the commissioners’ map filed in 1811. • In the conveyance of the lots, the purchasers were, in terms, bounded on the street. If we Stop here, it is then a settled question that the grantor was only entitled to a nominal sum for the fee of the land in the site of the street, when it should afterwards be taken by the corporation; and had he sold the land in the street to a third person, his grantee would have had no greater right. Matter of Seventeenth-st., 1 Wendell, 262. Lewis-st., 2 id. 472. Livingston v. Mayor of N. York, 8 id. 85. Wyman v. The same, 11 id. 486. Furman-street, 17 id. 661. It is said that these cases proceed on the ground of an implied covenant that the purchaser should enjoy a perpetual ease. merit or right of way in the street, and that implied cove-" nants in deeds were abolished before these conveyances were executed. 1 R. S. 738, § 140. It is true that this-court> in the case of Seventeenth and Lewis streets, placed its decision on the ground of an implied covenant; but in the case of Fifth-street, (Wyman v. Mayor of N. Y.) the late chief justice said, that where the owner sells city lots nr reference to a map on which streets are laid down, “ he adopts the map, and thereby makes an appropriation or dedication to public use of the ground laid out as streets.” In the court for the correction of errons, this case and that relating to Attorney and Ridge streets, (Livingston v. Mayor of N. Y.) proceeded on the ground of an implied grant of a right of way, or a dedication of the land to public use, and the same point was adjudged in the case of Furman street. See also Trustees of Watertown v. Cowen, 4 Paige, 510. It is not very important that Thirty-second street has never been opened or used as a public thoroughfare. Although user is the most common, it is not the only evidence that lands have been dedicated to the public. In some of the cases which have been mentioned, the street had been used before measures were taken by the corporation for opening it in the form prescribed by law, but no importance was attached to that fact; and, in some of the cases, there had either been no user, or none which would authorize the court to proceed on that ground.

In relation to Mr. Sided, this case presents a new question. In the conveyance to him, Mr. Whiling first granted several lots bounded by the street, and then granted one half of the land lying in the street and adjoining the lots. Had the deed stopped here, there would perhaps have been some difficulty in denying the right of the grantee to claim full compensation for the land on opening the street. But it is unnecessary to consider that question. The grant is qualified by the provision, that the lands lying in the site of the street “ are not to be enclosed, but always to remain open as a public highway.” Here the grantor and grantee, the one by making, and the other by accepting the conveyance, both unite in dedicating the land to public use.

But it is said that this clause is inconsistent with the previous grant of a fee in the land, and consequently void. I cannot yield to this argument, for several reasons. In the first place, the fee actually passed to the grantee, and will remain in him until his interest is transferred to the corporation by opening the street in the forms prescribed by law. Should this never be done, the other grantees may have a right of way over the land, but the fee will still remain in Sidell, subject to the easement. This is not like the case where the habendum clause in a deed is repugnant and contrary to the premises. The clause declaring that the lands shall always remain open as a public highway, is part and parcel of the grant—a qualification or description of the interest which the grantor intended to convey. This clause may, I think, be upheld on the principles of the common law.

But in the construction of deeds, as well as wills, the intent of the parties is to govern, and it is the duty of the courts to carry that intent into effect, so far as it can be collected from the whole instrument, and is consistent with the rules of law. 1 R. S. 748, § 2. If we look at the whole of this instrument in connection with the existing state of things at the time it was executed, it is impossible to mistake the intention of the parties. In pursuance of an act of the legislature, the whole of Manhattan island had been surveyed, and streets and avenues had been laid out in reference to the anticipated growth of the city. It had been settled that if landholders made sales and bounded purchasers by a contemplated street, they thereby dedicated the land in the street to public use, and could only demand a nominal sum for the fee of the land when it should after-wards be transferred to the corporation. In this state of things Whiting laid out and sold his lands, not for agricultural, but for city purposes; selling in small lots bounded by a contemplated street. On this dedication of the site of the street to the public, he was willing to convey all his remaining interest in the land to the purchasers respectively, taking care, however, to declare that the grant was not made for private purposes, but to the end that the street should always remain open as a public highway. It is impossible to SUpp0Se that the one party intended to grant, or that the other expected to acquire, an unqualified interest in the land. Such a construction of the deed would defeat the manifest intent of the parties, by rendering that which was designed as an important qualification of the grant utterly nugatory.

The other purchasers who stand in the same situation as Mr. Sidell, are not before the court. So far as appears, they do not complain of the principle on which the commissioners of estimate and assessment have proceeded.

The fee of one half the land in the street adjoining the lot which Mr. Whiting bid off himself, still remains in him. But on the principles which have been settled in the cases to which I have referred, he is only entitled to a nominal sum when the land is taken by the corporation. He has dedicated the whole street, so far as it passes through his land, to public use.

Report confirmed.  