28 N.Y.S. 968 | N.Y. Sup. Ct. | 1894
This action was brought to establish plaintiff’s right to a way over defendants’ land, and to have certain obstructions placed therein by the defendants removed therefrom. There is no dispute as to the facts. The parties own adjoining lands, lying on -the northeasterly side of a highway called the “Sands Point Road;” and the lane in dispute extends from such highway, in substantially a direct line, to the shore of Hempstead harbor, and bounds plaintiff’s lands on the southeast. The- defendants are devisees of Benjamin Mott, from whom plaintiff, by three conveyances, derives title to all her land, except one plot, designated as “No. 4.” In two of the deeds from Benjamin Mott, the plaintiff’s lands are described as running to “the northwesterly side of a certain lane * * * running from Hempstead harbor to the highway from Sands Point to Roslyn;” and in the third deed the lane itself is made the southeasterly boundary of the land conveyed. Prior to the execution and delivery of the two deeds first mentioned, and which conveyed to the plaintiff plots 2 and 3, Benjamin
We are of the opinion that the rule that when land is conveyed by a deed describing it as bounded upon a road, the fee of which is vested in the grantor, and which is mentioned or referred to in the deed, the grantee acquires a right of way over the road, is applicable to the facts here presented. The appellants contend that this rule is applicable only to city and village lots. It has, however, no such limitation, and the cases cited by the appellants do not so decide. In Smyles v. Hastings, 22 N. Y. 217, a plot of about 400 acres was divided into nine lots, and the right of way was claimed to have attached to a lot 57 acres in extent. The easement was claimed to arise from the designation on a map of a contemplated road, and a sale in accordance with, and by reference to, the map. The court held that a right of way over the road passed as a part of the grant, as an easement appurtenant to the lot conveyed. In neither of the other cases cited is there any intimation of such a- limitation upon the rule as appellants claim. The doctrine has no reference to the dedication of the land as a public highway, but proceeds upon a construction of the deed; and a conveyance by which lands are bounded upon a street laid out or existing, or designated upon a map referred to, is held to constitute, as between grantor and grantee, and as to the lots conveyed, an irrevocable appropriation of the spaces designated as streets or ways appurtenant'to the land conveyed. We have in this case the maps showing the road, and the fact that the land, conveyed was bounded upon it. The plaintiff thus acquired, as against Benjamin Mott and his successors in title, a right of way over the lane in question. This right clearly extended from the land conveyed to the Sands Point road. Whether it also extended to the harbor, it is not necessary to determine, as the right to pass to the harbor exists under the conveyance of lot No. 4, which will be now referred to.
The land owned by the parties to this action is a part of a farm which prior to 1850 was owned by Henry Mott, who devised the same to his two sons, Adam and Benjamin. In 1860 the sons partitioned the farm between them. Adam and his wife quitclaimed to Benjamin 90 acres, which include the defendants’ lands, and parcels 1, 2, and 3, owned by plaintiff. Benjamin and his wife quit-claimed the balance of the farm to Adam, including parcel 4, owned by plaintiff. Subsequently, the executors of Adam Mott conveyed parcel 4 to Marianna Wilson, who thereafter conveyed it to the plaintiff. In the deed from Adam to Benjamin Mott, following the habendum clause, is the following provision:
“And upon this further condition: That the party of the second part, and his heirs and assigns, shall permit and allow the parties of the first part, and their heirs, to have free access, with teams, at all times, to and from the waters of Hempstead harbor, by the road now and heretofore used, through his land, for the purpose of loading and unloading vessels, and also to reach that portion of the shore contiguous to such waters, belonging to the parties of the first part, for the purpose of carting to and from the same.”
The right of way to the Sands Point road does not appear to be presented upon the pleadings. The complaint alleges- a right of way from plaintiff’s lands to the harbor, and its obstruction by the defendants; and the relief demanded is that plaintiff be adjudged to own and possess a way over said road to Hempstead harbor, and that defendants be ordered to remove all obstructions therefrom. The judgment, however, adjudged that a right of way exists from the Sands Point road to the harbor; and, as no point is made that this is in excess of the relief demanded in the complaint, we have considered the question as it is presented in the evidence and findings of the court. The judgment is affirmed, with costs. All concur.