
    Alfred Bell, App’lt, v. John H. Howe, Resp’t. John H. Howe, Resp’t, v. Alfred Bell, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    1. Ejectment—Title to alley.
    One A. in 1853 mapped a tract of land and sold to appellant’s predeeessor a lot numbered four on the map, bounded southerly by lot twenty, which was ninety feet wide. A short time thereafter A. filed a new map, which indicated an alley fifteen feet wide across the northerly side of lot twenty, and in its rear, and also a dedication deed, which stated it was for the use of lot twenty and others, but lot four was not mentioned. On foreclosure of certain mortgages lot twenty was sold to respondent’s predecessor, and respondent also claims title to the alley through A.’s son, to whom A.’s assignees for creditors conveyed it. The husband of appellant’s immediate grantor, and who joined in the deed to him, was the owner of one of the lots entitled to an easement in the alley. Held, that appellant had no title by deed or prescription to the alley in question, and that as against him, the alley having been abandoned, respondent was entitled to recover possession of the strip of land.
    8. Same—Evidence .
    The testimony of A.’s son as to conversations with his father in relation to the preparation of the maps was not inadmissible under § 829 of the Code, as appellant, having no title to the alley", did not derive title from a deceased grantor.
    Appeal from a judgment in action No. 1, entered in Monroe «county clerk’s office on June 29, 1891, on the report of a referee dismissing the plaintiff’s complaint and granting an injunction against the plaintiff.
    Appeal in action No.' 2, from a judgment entered in Monroe county clerk’s office on J une 30, 1891, on the report of a referee in favor of the plaintiff for the possession of the premises described in the complaint.
    . Action No. 1 as originally commenced was in the form of an action in ejectment, and by the amendment of the plaintiff’s complaint was changed to an action in equity, the relief sought being an injunction restraining the defendant from occupying or interfering with the plaintiff’s possession and use of the premises -described in the complaint..
    No. 2 is an action of ejectment to recover possession of the same premises described in the complaint in action No. 1. Both actions were referred to the same referee; and were by stipulation of the parties tried at the same time, and the evidence taken was used alike in both cases.
    
      J. Van Voorhis, for app’lt; Nathaniel Foote, for resp’t.
   Lewis, J.

—The subject matter in dispute in these actions is a piece of land situated in the city of Rochester, fifteen feet wide, and about one hundred and, fifty-eight feet in depth, tying between the residence of the appellant, situated on the corner of East avenue and Goodman street, in the city of Rochester, and the residence of the respondent, fronting upon Goodman street in the rear of the appellant’s lot. Both homesteads are a part of the t" Arnold tract, so called, and the land in dispute was called and known on the trial as “ the alley.” Each party claims it as a part of his lot.

The facts material to the decision of these appeals, and as found ■ by the referee, are as follows:

William E. Arnold is the common grantor of the parties. In May, 1853, he became the owner of a tract of land in the city of Rochester, which he subsequently designated as the “ Arnold Tract,” and which included the alley in controversy in this actian^ and the homestead premises now occupied by each of the. parties to these actions, together with other lands. Arnold entered into possession of the tract, and on' or about the 28th day of July, 1858, he subdivided the tract.into twenty-five lots, separately numbered them, and caused to be made and filed in the-Monroe county clerk’s office a map of said tract, showing his subdivision thereof into said lots, and the location and dimensions of each lot.

According, to such subdivision and allotment, lot No. 4 (appellant’s lot), fronted upon the southerly side of Bast avenue,, corner of Goodman street, and extended southerly along the westerly side of Goodman street 425 feet to the northerly side of lot, No. 20; its southerly .end was 128 feet 3 inches wide." According to such subdivision and allotment, lot No. 20 fronted upon ' Goodman street, was ninety feet in width upon Goodman street, and ninety feet in width in the rear, and on its notherly line 158, feet 3 inches in depth, and adjoined lot No. 4.

After the making of said allotments and the filing of said map, and on or about August 1,.1853, Arnold conveyed to George 0.. Buell lot No. 4 according to said subdivision, and as shown upon said map, and by the description in the deed lot No. 4 was bounded on the south by the north line of lot No. 20. • After-wards, and on or about September 28, 1853, Arnold made and afterwards filed in the Monroe county clerk’s office another map of said allotment and subdivision of the Arnold tract, upon which lie indicated an alley or passageway across the northerly side of lot No. 20, from Goodman street westerly to the rear of said lot, fifteen feet in width ; at the west end of lot No. 20 it turned at right angles southerly, and extended along the rear of said lot No. 20, and in the rear of other lots of. said tract, also fronting upon Goodman street. Arnold, on said 29th day of September, 1853, ■ executed and caused to be recorded in the Monroe county clerk’s office an instrument under his hand and seal, being a dedication deed, in and by which it was recited, among- other things, that as the proprietor of said Arnold tract he had caused the same to be subdivided into lots according to the plan or specification made by James M. Bruff, city surveyor, dated July 28, 1853, filed in said clerk’s office, and that for the benefit and use of the purchasers of lots on said tract, and in explanation of said map, he declared, among other things, that said passageway, meaning the alleyway, of which the premises in dispute was a part, indicated on said map, represented an alley for the use of owners of certain lots specified by their numbers, among which were lots Nos. 20, IS . and 22. But neither lot No. 4, nor lot No. 3, adjoining lot No. 4 upon the west, was mentioned in said dedication deecl; the deed further provided that gates should be erected at the entrance of •said alley on Goodman street.

There was sufficient evidence to sustain the foregoing facts as found by the referee.

By various mesne conveyances, the title to lot No. 4 became vested in the appellant about September 27, 1870. The evidence failed to show the precise time of the filing of the map referred to in the deed from Arnold to Buell of lot Ho. 4. It was, however, shown by the testimony of Hobart Gf. Arnold, a son of William E. Arnold, that it was filed in the clerk’s office prior to the conveyance of lot Ho. 4 by his father; and that the map upon which the alley was designated was filed after his father had conveyed lot Ho. 4 to Buell. Both maps bore the same surveyor’s date, July 28, 1853, showing, as testified to by Hobart, that there was but one survey made. There was in the handwriting of William E. Arnold, upon the face of the map referred to in the dedication deed, the words and figures following : “ Dated September 28th, 1853. William E. Arnold,” satisfactorily establishing that he had a copy of the original map made, upon which he caused to be designated the alley, and also showing the time it was made and became for the purposes of the alley a map.

There was evidence tending to show that the second map was filed on the 28th day of September, 1853.

While the alley in controversy, as indicated upon.dhe map, adjoins the south end of lot Ho. 4, lot Ho. 4 got no rights or easement in the alley by the dedication deed.

The appellant’s immediate grantors were Sarah H. Van Epps and her husband, John 0. Van Epps, Mrs. Van Epps being the owner of the lot. Van Epps was at the time of his joining in the deed of this lot to the appellant the owner of lots in the Arnold tract fronting upon and having an easement in the alley as designated in the map referred to, and he’ had in common with others, including the occupant of lot Ho. 20, prior to and during the time his wife owned the fee to lot Ho. 4, occupied the alley in controversy.

The evidence as to the character of the occupation of the part of the alley in controversy was quite conflicting, the appellant claiming that his grantors were in the exclusive possession thereof, but the respondent’s evidence tended to show that lot Ho. 20 enjoyed the same privileges of the alley as other lots did. Ho part of the alley designated upon the map, except the part thereof in controversy, was ever opened or used. The portion of the alley adjoining the lots conveyed, with the exception of the piece in controversy, was incorporated into the adjoining lots as they were conveyed and occupied, and the scheme of the alley seems to have been by common consent practically abandoned; in fact it was never adopted by the grantees of the lots.

It is quite clear that the appellant failed to establish any paper title to the land in controversy. He sought,c however, upon the trial to establish a prescriptive title. The referee decided, we think correctly, that he had failed to show a prescriptive title. His possession was not of sufficient duration or of a character to give him title by adverse possession. He entered into possession of lot Ho. 4 on September 20, 1870, and brought this action on the 6th of September,. 1889; the respondent’s action against the appellant was commenced within less than twenty years from the time of the date of appellant’s deed.

The'appellant took no title by the quit claim deed from Mrs. Yan Epps, for neither she nor her husband had any title to the alley toconvey, except a possible easement therein arising from the ownership of other lots adjoining the alley as projected.

We fully concur in the findings of the learned referee that the-appellant failed to make a case, and that his complaint was properly dismissed.

Action No. 2 was commenced July 1, 1890.

William E. Arnold, the common grantor, took title to the entire tract, subject to two purchase money mortgages. These mortgages "svere liens upon the whole tract, including lot No. 20. They were subsequently foreclosed, and judgments obtained, and lots 1, 20, 21 and 22 in said tract were sold upon the foreclosure sale to Samuel Yeomans. The respondent’s lot was described in the-referee’s deed as lot No. 20 on the Arnold map made July 28, 1853, and filed in the clerk’s office September 30, 1853. This reference evidently was -to the map referred to in the dedication-deed, and, as” we have seen, on that map the alley in question was indicated, and lot No. 20 appeared upon this map as being only seventy-five feet wide. The mortgages, as we have seen, covered-the lot as designated upon the first map, being ninety feet in width, and the alley appeared upon the second map as laid across the north side of lot No. 20.

It is the contention of the respondent that the fee to lot No. 20 as designated upon the first map passed by the sale under the foreclosure judgments. The title acquired to lot No. 20 under the foreclosure sale by several mesne conveyances become vested in the respondent, and if the sale under the foreclosure judgment, carried' the title to the whole ninety feet he became thereby vested with title to the lot as indicated upon the first map. If, however, the fee to the alley did not pass by this conveyance, it remained in William E. Arnold, and the evidence shows that Arnold prior to the sale of this lot under the foreclosure judgment executed a general assignment of all his real and personal estate to Silas O., Smith and Theodore Church for the benefit of his creditors; the title to the land in dispute passed to the assignees under the assignment and was thereafter conveyed by them to Hobart Cr. Arnold, and by him through various .conveyances became vested in the respondent, and he became, as was found by the referee, the owner of lot No. 20 as laid out and designated upon the first map,, which included the fee to the alley in question, and as the use ,df it as an alley had been abandoned, he was entitled to recover possession of it as against the appellant.

We have examined the numerous exceptions taken by the appellant to the admission and rejection of evidence.

The testimony of the witness Hobart G-. Arnold relating te conversations with his father as to the preparation of the maps-was, we think, competent as apart of the history of the preparation and filing of the maps. The objection that he was an incompetent witness under § 829 of the Code cannot avail, for as we have seen the conversation related solely to the title to th,e alley and the appellant having no title to it he did not derive title from, a deceased grantor.

We find nothing in the exceptions of the appellant justifying the granting of a new trial.

The judgments appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  