103 N.Y.S. 1088 | N.Y. Sup. Ct. | 1907
Under the general rule that a gTant in gross is never presumed v hen it can he fairly construed as appurtenant to some other estate, it is quite clear that the wharfage rights in question were appurtenant to the land granted to William Hockman by the city of Hew York in 1847. Wharfage rights may constitute an easement in gross as was the pase in Mayor, etc. v. Law, 125 N. Y. 392, but there the grantee did not own the upland at the point in controversy, and the court held, in view of the circumstances of the case, that the intention was to create an interest in the wharf which the grantee could enjoy himself or convey to any other person. The facts in this case are entirely different. The wharfage rights acquired by Hockman under the same deed which granted to him the upland and the bulkhead rights were immediately opposite to the dominant tenement. In the partition of the land in question by the heirs' of Hockman, in 1860, four lots on the east side of Thirteenth avenue, being the north half of the block frontage between Eighteenth and nineteenth streets, were conveyed to- Eliza Hockman, and the deed by appropriate language granted all the wharfage rights lying in front of the land conveyed. In 1868 the city, by deed to the heirs of William Hockman, confirmed the deed of 1847. It is quite clear, therefore, that, as between the city and William Hock-man and William Hoclcman’s heirs, the wharfage rights were intended to be appurtenant to the land conveyed. In 1886 Eliza Hockman died leaving a will containing no residuary clause. Every gift or devise is specific. The lots fronting on the east side of Thirteenth avenue were devised by reference to their map numbers in the partition map of 1860. Ho specific reference was made to the wharfage or bulkhead rights. Thereafter all the heirs of Eliza Hockman,
Demurrer overruled, with costa.