
    George L. Smith, Appellant, v. Frank F. Stacey, Respondent.
    
      Deed — actual location of a street, different from the.map location, which governs— proof of the former—practical location.
    
    Where the actual location of a street differs from the map location, a deed executed . after such practical location has been recognized for a period of forty years, in which the premises are described as being bounded on the street, will be construed to refer to the street as actually located and not as it is located upon the. map, especially where it is found as a fact that such was the intention of the parties thereto.
    Evidence establishing that the practical location of the street differs from the map location thereof is competent, as its purpose is not to contradict the deed but to clear up an obscurity therein.
    Evidence that the grantor and grantee in the deed had located the street line of the premises in conformity with the actual existing street line, is competent, as against a subsequent grantee of the premises.
    A boundary once located and openly adhered to by owners of adjoining lots cannot be disturbed and relaid by a subsequent owner of one of such lots.
    Appeal by the plaintiff, George L. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 13th day of Febru ary, 1901, upon the report of a referee dismissing the complaint upon the merits.
    
      A. M. Mills and 3. A. Be Ooster, for the appellant. 1
    
      John B. Beckwith, for the respondent.
   Spring, J.:

This action involves a small gore of land claimed by both parties, who are owners of contiguous lots in the city of Little Falls. Botli lots were in a plat of land which is bounded on the north by Bur-Well street, on .the east by Waverly place, on the south by Garden street and on the west by Salisbury street. In 1841 John Ward, who then owned this entire tract, conveyed it to Solomon Petrie and three others, and in 1845 the title of the whole tract was vested in Petrie, who may, therefore, be deemed the common source of title of the respective parties to this action. By deed of conveyance dated August 4, 1896, Mary Arnold Petrie, who owned both of these lots, and in fact the easterly half of the tract referred to, conveyed the southeasterly lot to Michael J. Fisher, and this, title came to the .plaintiff through mesne conveyances by deed dated October 21,1899. The description in these conveyances begins at the northwest intersection of Garden street with Waverly place, running “ thence northerly along the westerly . side' of W overly Place sixty feet; thence westerly on a line parallel xyith Garden Street and sixty feet '■distant therefrom to Icmcls of John P. Harvey / thence southerly along the easterly .line of said Harvey’s land sixty feet, to the northerly line of Garden Street; thence along the 'northerly line of Garden Street to the place of beginning.” By this conveyance, therefore, the plaintiff acquired title to the lot.in the southeasterly part of the tract sixty, feet in width and extending westerly to Harvey’s lot. .

By deed bearing date May 1, 1899, Mary A. Petrie conveyed to the defendant the lot adjoining that of the plaintiff, with this description : “ Commencing at a point eighty-two and five-tenths (82.5) feet southerly from the intersection of the south line of Burwell Street and the westerly line of Waverly Place, said -point being designated by an iron pipe driven into the ground in the said westerly line of Waverly Place; thence northwesterly at right angles to Waverly Place and parallel with the south line of Burwell Street about, one hundred twenty-eight and six-tenths (128.6) feet to an iron pipe driven into the ground in the rear line of lots on Salisbury street ; thence southwesterly along said rear line of lots on Salisbury Street to the most northerly corner of the lot sold to one Michael J. Fisher ; thence southeasterly along said Fisher’s northerly line about one hundred twenty-nine and seven-tenths (129.1) feet to Waverly Place to an iron rod ; thence northeasterly along the westerly line of said Waverly Place one hundred (100) feet to the point of beginning,”

The strip in dispute is about thirteen and fifty-five one-hundredths (13.55) feet in width on the westerly end and tapers to a point at the northwest corner of Waverly place. The early maps of this part of the village of Little Falls' show Manheim street, now Garden street, extending from Waverly place westerly to Salisbury street, and its boundary line makes a right angle in its intersection with Waverly place, and this street line continues directly to Salisbury street. Without reciting the evidence in extenso it maybe summed up by saying that it shows that in the early history of the village the northerly street line as mapped was without variation. The street at its intersection with Salisbury street was about ninety-two feet in width, but the difference from a direct course was all in the southerly boundary. There was apparently no formal laying out of Garden or Manheim street. It seems to have been dedicated for street purposes and was accepted by the village authorities more than fifty years ago and regarded from that time as one of the public streets, blit whether the dedication and acceptance related to the street as mapped or originally located does not clearly appear.

While the proof is specific as to the map location of this street, it is equally definite and undisputed that in the actual ground location of its northerly boundary the direct map line was not followed. The sidewalk was not on a right angle with Waverly place, but was parallel with the boundary line which the defendant claims makes ■the division between his lot and that of the plaintiff. The row of trees which was planted along the street between the sidewalk and the traveled part of the highway was in recognition of the actual street line, and for half a century the entire location of the boundary on the ground was in disregard of the map line. The sidewalk as originally laid follows out the located line and from an early period has remained unchanged although the street retained the width of about sixty feet. The petition for opening and working this street in 1845, and the early resolutions pertaining to it by the village trustees, do not aid us much in determining whether they related to the ■street as it existed in fact or to that on the map filed.

Oa May 4, 1863, an ordinance was adopted by the board of trustees of said village referring to Garden street with others as “ having been laid down on public maps of the village and having been dedicated to public use are hereby declared to be public streets and highways.” Garden street in this ordinance is described as 60 feet in width, except at Salisbury street, and “ contracted by straight lines ” to that width again 120 feet east from Salisbury street. The street was then in use and for many years had been opened, worked and traveled as at present. So far as the proof shows, the use of the street, as far back as the recollection of living witnesses extends, was as now and apparently it was never used in conformity to the map lines. After the adoption of the ordinance of 1863 there was no change in the street, and no attempt was made to extend the .northerly boundary to embrace the land which was occupied as a part of the Petrie premises. The ordinance seems to have. been founded only on the maps, and ignored the actual user of the street. It was probably intended by it to make the acceptance as broad as possible, even though of no' practical utility to its full extent.

The original deed from Ward in 1841 as well as those of 1845 described the lots “ as laid out on the late map of said village;” There was no conveyance from Solomon Petrie of the easterly half of this tract, but the title passed along to Mary Arnold Petrie by devise or descent without description. Solomon- Petrie, however-, conveyed the westerly parcels in the plot without reference specifically to any map or to any lots thereon. Mary Arnold Petrie became the owner of the easterly half - of the plot about 1874 and continued to own it all until the conveyance to Fisher in 1896, During her ownership there were no division fences in the lot and none were erected after Fisher acquired title. The proof, however, shows that at the time he purchased corners were established and designated -by iron posts iii accordance with the street line as actually located, and the northerly fine was fixed as claimed by the defendant until this controversy arose. Fisher, after his purchase, erected a house on the lot, and its lines are parallel with the street line as located on the ground, and his occupancy extended to the sidewalk on the northerly line of Garden street. When the present plaintiff became the owner he enlarged the house, following out the same plan,- and terraced and platted his lawn- also to the walk; Fisher and his successor's in title extended their dominion northerly no farther than sixty -feet from the street line as- actually established on the ground, and when the defendant came -into ownership he followed his -predecessors in title by occupying the disputed territory, and was in the actual possession when the plaintiff made his ■ purchase. The deed of the plaintiff and also those of his predecessors run from Waverly place westerly to the lot of- John P. Harvey. If this is a direct, line parallel with the map line of Garden street, it would extend northerly beyond the Harvey premises. There is a barn on the northeasterly corner of Harvey’s lot, and it is within six inches of a bam owned by his neighbor on the north. At the point where the defendant claims the division line between the plaintiff and himself strikes the Harvey line, a large nail is driven into the barn. These barns made visible monuments which would be apt to attract the attention of a person interested in this disputed boundary line.

The deed to the defendant, in its description, makes the southerly line of the tract purchased a trifle longer than its northerly boundary, indicating that they are not parallel lines, and the description in fact may include the disputed strip.

We have, therefore, this condition presented: The map line recognized in the original conveyances showing a tract rectangular in form embracing the disputed piece with the street boundary, at right angles with Waverly place, and the disregard of this line in the original location of the street and its use and occupancy by the contiguous owners to the extent of the triangular-shaped piece in question, apparently with the assent of the public authorities who never urged the street as mapped.

The rule seems to be well established- that the parties will be assumed to have acquired title with the visible street boundaries in mind rather than those laid out on a map. (Barrows v. Webster, 144 N. Y. 422; Burke v. Henderson, 54 App. Div. 157; Blackman v. Riley, 138 N. Y. 328; Singer v. Mayor, 47 App. Div. 42.)

In Barrows v. Webster (supra) the controversy arose over a strip of land situate in the village of Olean, in the county of Cattaraugus, twelve feet in width, claimed by adjacent proprietors. In 1836 Gosseline made a map of the city and delineated on it U nion street, which was then and since has been the main business street of the village. That map has ever since been recognized as the official map of the village as well as of the present city. The street was never opened or traveled to the width delineated on the map, and its boundaries -were apjjarent at the time the respective owners in the action became vested with their holdings. The referee found as a fact that the parties' purchased with reference to the visible boundaries and that decision was upheld. Burke v. Henderson (supra) involved also the Gosseline map and the location of the westerly boundary of Union street. The conveyances described the plot “ according to a map thereof made by T. J. Gosseline.” A recent survey of Union street had been made for paving purposes and the boundary of the street had been located eleven feet further west, and' the .plaintiff’s' lot was, therefore, abridged to that extent. He-thereupon claimed that the boundary line of Union street was that, laid down on the Grosseline map, wThich had long been the official . map and "survey of the entire village or city. The referee^ aftér disagreeing'with the contention of' the plaintiff, says in his opinion, which was adopted by this court (at- p. 163): “ But even if the map-is read into the deed, it does not help the plaintiff, because if the-map line of the street is different from the street line as actually opened and used, the latter, as between Dean and Rhodes and Ryan, must control. This is a well-settled rule.”

• ■ In Blackmam, v. JEtiley (supra) a like controversy was up over a-strip of land claimed to be a part of the old Bloomingdale road running northerly out of Hew York city and which had been originally four rods in width and laid out as early as 1703. One question much controverted was whether in 1809, at the time of one of the conveyances by a common grantor, the road was more than two rods in width, which the court settled in the negative, but in considering the effect of the highway if laid out the full width but not used beyond two i'ods, the court say (at p. 332): “ If, however, the legal width may have been four rods, if the road was only used, ■worked and repaired to the width of two-rods, and the other two-rods, so far as visible boundaries are concerned, were a portion of the abutting land, wé think a description of the land as bounded by ■ the east side of the-road should be construed to mean the visible-road as in actual use, and not the ideal road of a width of four instead of two rods.”

In Singer v. Mayor (supra) the question was whether a fence established the boundary or whether it was indicated by imaginary lines. The court, after stating that artificial' monuments are controlling, adds (at p. 45): “In the application of that rule it has-been held that where a highway is mentioned as a boundary of land it means the highway as it exists and is open and not the highway as it may be laid' out on a -map;”

The general rule- is thus enunciated in American and English Encyclopaedia of Law (Vol. 4 [2d ed.J 815): “Where a street is-described as a boundary it must be construed as meaning the street as actually opened up and in use, rather than as it was originally located, if there has been any change made in its line.”

In. the present case the referee found that the northerly boundary of Garden street had existed unchanged for forty years and more ” and that the deed from Miss Petrie to Fisher “ conveyed such premises to and bounded them on the southerly by the visible northerly boundary line of said Garden street as located and used * * * and that the deed of conveyance * * * was given and accepted with reference to the actual visible location of Garden street as used and located.at the time of such transfer.” This finding is well sustained by the evidence and is within the settled principle of law adverted to.

On the trial the defendant was permitted to prove under objection the facts upon which the practical location rested. The plaintiff contends that evidence of this character tends to vary the conveyance. The deeds bounded the premises on the northerly line of Garden street and the evidence received was to aid in the location of that, boundary line. That class of proof was admitted in each of the cases cited and it is not to contradict the deed but to clear up an obscurity. It is also urged that the evidence of the location of the line by Fisher and his grantor, Miss Petrie, in conformity with the existing street line, was incompetent to bind the present plaintiff. The lot corners were set and Fisher went into possession and began the erection of his house and trimmed up his lawn, all in recognition of this agreement and the location of the boundaiy line. It was proper for these parties to establish the line either by the street line as delineated on the map or as located on the face of the ground and once adjusted it would like the settlement of a disputed boundary

line estop the parties and their successors. (Vosburgh v. Teator, 32 N. Y. 561; Wood v. Lafayette, 46 id. 484.) If the conveyance is obscure and fails to disclose the real intent of those parties to it, the paroi declarations and the acts of the parties are admissible. (Harris v. Oackley, 130 N. Y. 1.) All of this class of proof is received, not to vary the conveyance, but in aid of it and to dissipate its uncertainty, and a boundary once located and openly adhered to by contiguous, owners cannot be disturbed and relaid by a subsequent owner.

The judgment should be affirmed, with costs to the respondent-

Adams, P. J., McLennan, Williams and Hiscock, JJ., concurred-

Judgment affirmed, with costs.  