Dumond v. Sharts

| New York Court of Chancery | Apr 20, 1830

The Chancellor.

The only questions before me at this time are as to the ¡and covered by the road, and as to costs. It appears that the .road formerly. laid out for The Chathan Turnpike Company runs partly through the farm , and partly on one side thereof. And I infer from the evidence in the cause and from the master’s report, that the land covered by the road is included in the general boundaries of the farm as described in the deed to Dumond; and that it is not excepted out of the conveyance. If such is the fact, Dumond has no right to compensation in this suit oh account of the land covered, by the road. If .there is a covenant of seisin in the deed, perhaps he may recover thereon in a court of law. But no such claim is made in the complainant’s bill, and no sufficient foundation therefor is contained in any of the pleadings. Neither- is there any .evidence before the. court to-enable me to ascertain whether the - fee of the-land over which this road passes is now in the complainant or in the state. In general, the laying out of a public highway over a man’s land does not divest the, title; which still remains in him subject to the 'public right of way over the land. In such cases,-whenever the road is taken up or altered, the owner is restored to the full enjoyment of the land which is no longer wanted for the public use. But. by the act .of April,.-1804, lands purchased by The Chatham Turnpike Company for the use of their road, or condemned for the same purpose and paid -for by the company, became absolutely vested in the corporation. And. under the act of 1820, the -title to such lands is now vested in the people, and cannot revert to the original owners thereof or their assigns, except by a grant from the state. There is in this case, how- ■ ever, no evidence that any land included within the boundar síes of the Chatham farm was either voluntarily conveyed to the company, or condemned for the use of the road and paid for under the act. Besides the agreement as to the number of acres in these farms must be construed with reference to the boundaries thereof as described in the deeds. The covenants have undoubtedly provided the proper remedy for a failure of title, as to any part of the land included within those boundaries. The complainant is therefore, under the decision of the late chancellor, only entitled to recover from the defendant payment for eight acres, two roods and seventeen perches of land, at the rate of $37,50 per acre, with interest from the 17th of November, 1823.

I think the complainant is in this case entitled to his costs against the defendant. The latter refused to correct the error in the original estimate of the farms, although the claim of Dumond was perfectly just and equitable under the agreement of the parties. Instead of doing so, he insisted upon the technical objection that the day had passed before the survey was made ; and by that means compelled the complainant to seek relief in this court. If a party resists an equitable claim under such circumstances because he supposes the laws afford no remedy to the injured person, he must pay the costs of the litigation, if in the end the law is found to be against him.