130 N.Y.S. 740 | N.Y. Sup. Ct. | 1911
The facts out of which this case arose may be briefly stated as follows:
On the 31st day of December, 1889, one Edward D. Mathews became the owner by purchase at sheriff’s sale of a considerable traer of land in the city of Utica, N. Y., which he shortly thereafter caused to be laid out in blocks and lots by numbers and streets and' avenues by name. This map in lots subsequently sold by him he referred to as being one which was filed in his own office and known as “Map No. 2 of Utica Highlands.” The map in question was not filed in the clerk’s office of Oneida county by Mathews, but it was so filed by his general assignee, to whom he assigned in August, 1893. One of the blocks laid down on this map was called block 2, faced easterly on “Mathews avenue,” so called, and lay between Erie street northerly and Whitesboro street southerly. This block he divided into 16 lots; 13 of them fronting easterly on said Mathews avenue and
On the 1st day of October, 1892, Mathews and wife, by deed dated that day and executed on December 28th of the same year, conveyed to Norwalk Hat Manufacturing Company, a domestic corporation, lots numbered “1, 2, 3 and part of 4, in block No. 2, as represented on said map.” Following the description of the land in this deed is found the following language:
“Excepting and reserving therefrom a strip of land ten feet wide from the rear of said premises hereby conveyed to be used as an alley or lane named on said second map for the use of the owners and proprietors of said lots in said block No. 2 forever; in common with the parties of the second part hereto. * * * Said alley as shown on map No. 2 begins at Erie street and it is hereby understood and agreed that the said party of the second part, their successors and assigns, shall keep the said lane or alley clean and free at all times from any obstructions and obstacles and ice and snow and will never obstruct or place anything therein.”
On July 29, 1901, the Norwalk Hat Manufacturing Company by its deed duly executed, granted, and conveyed to the defendant Utica Knitting Company all the said real property that had been conveyed to it by said Mathews; the deed containing the same exception and reservation as to said alley or lane found in the Mathews deed and above quoted.
On March 27, 1893, Mathews and wife, by deed duly executed, conveyed to one Samuel Goodwin with other lands said lots 15 and 16 in block 2, fronting on Whitesboro street; reference being made to' said map, and excepting and reserving therefrom “five feet to be used as an alley or lane named as on second map.”
Reference is made to this deed for the purpose only of showing the scheme or plan adopted by Mathews with reference to maintaining an alley or lane along and around the said lots in said block 2.
On the 10th day of May, 1893, the said Mathews and wife, by their deed duly executed on May 18th, conveyed to one Edward Kanaley, with other lands, lots Nos. 5, 7, 9, 11, and 13 in said block No. 2 fronting on said Mathews avenue; reference in said deed being made to said “second map” and further describing the lots more particularly and stating that each had a frontage of 26 feet and a depth of 100 feet, using at the close of the description the words:
*743 “Excepting and reserving from the rear of said lots 5, 7, 9, 11 and 13 in block 2, -feet to be used as an alley or lane and five feet from the southerly side of said lots 13 to be used as an alley or lane.”
By this deed the usual appurtenances were granted, and following the habendum clause several restrictions were placed upon the use of the property, among which is found the following:
“Will keep said lane or alley clean and free from all obstructions and ice and snow and will never obstruct or place anything therein, all of which covenants shall run with the land hereby granted.”
In April, 1894, Kanaley and wife conveyed by deed said lot No. 13 to Daniel O’Brien and John Hoolihan, “together with all and singular the hereditaments and appurtenances thereto belonging or otherwise appertaining,” but without making specific reference to the alley or lane in question. In March, 1899, the said O’Brien and Hoolihan, by their deed, conveyed to the plaintiff herein said lot No. 13, referring to the said “second map,” which was stated to be then on file in Oneida county clerk’s office and following the description is the language, “and this deed of conveyance is made subject to all the covenants, restrictions and conditions in said (Mathews) deed contained.”
In October, 1896, the plaintiff and wife conveyed the same lot No. 13 to one Ringwald, referring to the said map, and making the deed “subject to all the covenants, restrictions and conditions contained in said Kanaley deed.”
A few days thereafter Ringwald and wife reconveyed the said lot No. 13 to the plaintiff by the same description and subject to the same covenants, restrictions, and conditions therein contained.
In April, 1894, the said Kanaley and wife'by their deed conveyed to one Edward O’Hara, with other lands, said lot No. 9 in block 2; reference being made to said second map with “all and singular the hereditaments and appurtenances thereto belonging or otherwise appertaining” without making any specific reference to said alley or lane.
In February, 1899, the said O’Hara and wife by their deed reconveyed to the plaintiff herein the said lot No. 9; reference being made to the said map, and the deed containing the usual clause relative to appurtenances.
All said conveyances were recorded in their order.
From the foregoing it will.be seen, as it is admitted by the pleadings, that the plaintiff, at the time of the commencement of this action, was still the owner of said lots 9 and 13 in block 2 originally conveyed by Mathews to Kanaley, and the defendant the owner of the said lots in said block conveyed to Norwalk Hat Manufacturing Company.
Shortly after the conveyance by Mathews to the Norwalk Hat Manufacturing Company, the company erected a wooden structure upon the conveyed lands, extending a portion thereof into the lane or alley reserved in the deeds referred to, and since then has covered substantially the whole of said lane by an additional one-story wooden structure, and this is the nuisance that the plaintiff complains of, claiming by his pleadings and proofs that he has a way over the said reserved lands from Erie street to the rear of his lots 9 and 13, and that the alleged nuisance should be abated.
Mathews failed, as stated, in August, 1893, making a general assignment to Walter N. Kernan of Utica, and thereafter Mr. Kernan continued to sell lots in said tract, but perhaps not in said block 2, making some deeds in which Mathews’ wife united to convey title. After this assignment, it appears that further maps of the tract in question were made and filed, one by the city of Utica as provided by chapter 738, Laws 1897, and chapter 559, Laws 1902, and acts amendatory thereof, for the purpose of selling the same to raise the amount, due for taxes that had been assessed against the property, and such proceedings were subsequently had by the city of Utica and the county of Oneida pursuant to said laws that all the remaining property of said Mathews, inclusive of the unsold lots in block 2, were sold for taxes and bid off by the board of supervisors of said county, who conveyed the same to said assignee.
Various conveyances of the remaining lots in block 2 have since been made, in which no reservation of said alley is mentioned, nor was any mentioned in the deeds given to said board of supervisors or from the board to said assignee.
It has become the settled law in this state that, when the owner of land lays it out into distinct lots with intersecting streets or avenues- and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open, and that when in such a-case a lot is sold bounded by a street the purchaser and his grantees have an easement in the stréet for the purpose of access which is a property right. Trustees, etc., v. Cowen, 4 Paige, Ch. 510, 27 Am. Dec. 80; Taylor v. Hepper, 2 Hun, 646, affirmed 62 N. Y. 649; Lord v. Atkins, 138 N. Y. 184, 33 N. E. 1035; Reis v. City of New York, 188 N. Y. 58-70, 80 N. E. 573. The same rule must apply where lanes or alleyways are shown-on maps and reference is made to them in conveyances.
But it is said by the defendant that even if the alleyway was laid down on the map, or an easement ever existed over the defendant’s-lands, it cannot now be enforced, as it has been lost to the plaintiff,.
(1) That Mathews, who was seised in fee simple of the lands in the block in question, abandoned the said alleyway, sold and conveyed certain of the lands therein by good title in fee simple; that, if any alleyway ever existed or was contemplated, it was cut off and abandoned by such conveyances, and access to the plaintiff’s lands could not be reached over said alleyway; and that plaintiff acquired his title with full knowledge of the said facts and has acquiesced in the abandonment of such alleyway.
(2) That Mathews sold and conveyed some of the lots in said block lying between the lands of the plaintiff and those of the defendant in fee simple, and that by reason thereof the alleyway became impracticable and useless.
(3) That the defendant is guilty of loches in taking proceedings to open said alleyway.
(4) That the expenses of removing the defendant’s building from the alleyway would be greater than any profits that the plaintiff would derive from the use of the same.
(5) That there is a defect of parties defendant, in that the owners of other lots between defendant’s and plaintiff’s lands are necessary parties for the settlement of the claims of the respective parties to the said alleyway.
(6) That the tax sales referred to carried the entire fee in the land free from incumbrances and easements.
The same learned judge says also that:
“Even an abandonment for a shorter period, under such circumstances as showing an intention to give up and release an easement, which is acted upon by the owner of the servient tenement so that it would work harm to him if*746 the easement were thereafter asserted, would operate to extinguish the easement.”
And further:
“Nothing short of an intention so to abandon the right would operate to that effect, unless other persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing an injury to their rights in respect to the same.”
To the same effect is Corning v. Gould, 16 Wend. 531, 541, 542; Cartwright v. Maplesden, 53 N. Y. 622; Crain v. Fox, 16 Barb. 184.
Here the conveyance from Mathews to the Hat Manufacturing Company was made in October, 1892, and to plaintiff’s grantor in May, 1893, both less than 20 years ago. As has been stated, the Hat Manufacturing Company, soon after it took its conveyance, built upon the alleyway while the lots of the plaintiff were still vacant and while it is apparent that the Manufacturing Company intended to close the alleyway, no evidence was given to show any intention to the same effect on the part of the plaintiff or his immediate grantors; but, in effect, the contrary was shown, as down to the present time, when the plaintiff says he intends to build upon his lots, it does not appear that he had any occasion to use the alleyway. Therefore, under the authorities cited to the effect that nothing short of an intention to abandon the alleyway would operate to that effect unless other persons were led to treat the defendant’s servient estate free from the servitude, and no proofs whatever having been given upon this subject, ex-> cept the mere fact that the defendant had built upon the alleyway, it cannot be said that abandonment has been established. The burden, of course, was cast upon the defendant to make proof of this defense if it could do so, and, failing in this respect, it has, in my opinion, failed to establish either the defense of abandonment, destruction of the right of way by Mathews by conveyances or by loches on the part of the plaintiff. I .cannot say that I would not willingly hold these propositions with the defendant, as the alleyway has never been open, and I am not greatly impressed with its usefulness to the plaintiff, but I am dealing with a proposition of law that must so far as can be resolved correctly. Beyond this, the plaintiff is in a court of law insisting upon his legal rights, which seem to be established, and it is not for the courts to deprive him of them.
It was urged on the argument by the learned counsel for the defendant that the expense of removing the defendant’s building from the alleyway would be much greater than any profits that the plaintiff could derive from the use of the same, and with this I am also much impressed, and I would gladly award the plaintiff damages in lieu of imposing upon the defendant the expense and hardship of removing the building; but the burden of showing this fact rested upon the defendant, and no proofs upon the subject were given on the trial. Even if such proofs had been given, it may be doubtful if in an action at law any such relief could be awarded; but, be this as. it may, the question is not open here for discussion or settlement. Collins v. Buffalo Furnace Co., 73 App. Div. 22-28, 76 N. Y. Supp. 420.
It is a general principle that a purchaser of land is chargeable with notice of every fact affecting the title which would be discovered by an examination of the deeds of his grantor and of every fact as to which with reasonable diligence he ought to become acquainted. In Cambridge Valley Bk. v. Delano, 48 N. Y. 336, the Court of Appeals said:
“If there is sufficient contained in any deed or record which a prudent purchaser ought to examine to induce an inquiry in the mind of an intelliegnt person, he is chargeable with knowledge or notice of the fact so contained.”
Here, as has been shown, the prior deeds of Mathews and the map made by him and delivered to his assignee and on file prior to the time of the tax sales were all sufficient notice to purchasers of the servitude or easement in question. To say that the alleyway could thus be destroyed would be to say with nearly equal propriety that Mathews avenue to its center could also be destroyed, as conveyances of these lots carried the title to the center of the avenue. Hennessy v. Murdock, 137 N. Y. 317, 33 N. E. 330; Matter of Ladue, 118 N. Y. 213, 23 N. E. 465.
The statutes relating to tax sales in the county of Oneida, which provide that the purchaser at such sales obtains an absolute title free from all incumbrances, cannot, in my opinion, go further than to invest the purchaser with the title that the owner of the property had free from liens by the way of incumbrances placed thereon. In other words, it cannot divest a party situated as the plaintiff is here from a property right such as a servitude or easement lawfully acquired prior to the levying of the tax under which the sale was made, and this es
“Such covenants may be broadly divided into three classes. In the first class may be placed those which are entered into with the design tq carry out a general scheme for the improvement or development of real property.. This class embraces all the various plans, generally denominated in the English cases as building schemes, under which an owner of a large plot or tract of land divides it into building lots to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises. In such cases the covenant is enforceable by any grantee as against any other upon the theory that there is a mutuality of covenant and consideration which binds each, and gives to each the appropriate remedy.”
He then refers to the other classes and holds that under the facts of that case it did not fall within the first class referred to.
My conclusion is that the defendant’s building, so far as it encroaches upon or covers the alleyway in question as to the plaintiff, constitutes a nuisance; that the only damages that the plaintiff has sustained are nominal; and that these damages to the amount of six cents he is entitled to recover and is entitled also to judgment for the abatement or removal of the nuisance referred to, besides costs.
Findings for signature may be prepared accordingly.
