168 N.Y. 517 | NY | 1901
The action is in ejectment and the title to a parcel of land is involved, which formerly formed part of an old street in the city of New York, as designated upon a map of the city's common lands. The title to the "Common Lands" was vested in the municipality of the city of New York and, in 1796, they were surveyed and mapped by *520 Goerck. The land was platted in numbered lots, or blocks, which were divided by streets, having an uniform width of sixty feet. In 1804, one of these lots, known as number 155 on the map, was transferred, or leased in perpetuity, to George McKay by the mayor, etc., of New York and, by mesne conveyances, it came into the ownership and possession of John Graham, this plaintiff's father. The instrument transferring the land to McKay described it as number 155 on the map of the common lands and as bounded on the west by a road, called the "Middle Road" on the map, on the east, in part, by the "East Road" and, in part, by the line dividing the commons of the city of New York from the commons of the town of Harlem, "on the north side by a street of sixty feet in breadth between the said lot hereby granted and released and lot number 156 and on the south side by another street of the like breadth of sixty feet between the lot hereby granted," etc. The plot of land so transferred lay partly within what became the two blocks bounded by 83d and 85th streets and by the 4th and 5th avenues. Subsequently and pursuant to legislation, in 1807, commissioners were appointed for the purpose of laying out the streets in the city. They caused a map to be made showing the new streets; with this result that these new streets and those on the Goerck map did not conform in their lines and varied somewhat widely. Thereafter, applications by property owners affected, of whom Graham, plaintiff's father, was one, were made to the common council for proceedings to readjust boundary lines according to the new map, or plan. Action was authorized and taken upon the applications. In 1836, deeds were executed and delivered by and between the mayor, etc., of the city and Graham, whereby the city conveyed to Graham all of the block between 83d and 84th streets, and the 4th and 5th avenues, with the exception of a small piece of land in the northeast corner, and, simultaneously, Graham conveyed to the city the property which he had theretofore held by title derived under the former transfer to McKay of lot 155, on the Goerck map. The description in the deed by Graham *521 appears to have carried the grant only to the side of the street, which had been the northerly boundary of lot 155; reading, so far as material to the discussion, thus: "Northeasterly along the same, (Fifth Avenue), 200 feet to the southwesterly line or side of a certain other old street; thence southeasterly along the same 776 feet and 7 inches to the line which divides the Commons of the city of New York from the Commons of the town of Harlem," etc. This "old street" mentioned is the same "street of sixty feet in breadth," described in the mayor's deed to McKay. Its territory now lies within the northerly half of the present blocks between 84th and 85th streets and the 4th and 5th avenues and the property sought to be recovered in this action is a plot of about 50 feet by 30 feet, within the southerly half of the old street and near the center of the city block between these streets and Madison and 4th avenues.
The plaintiff claims that the conveyance to McKay, in 1804, by its description, carried the grant to the center of the old street on its north side, while in her father's re-conveyance, in 1836, to the city, the description expressly excluded the street and that, therefore, there still remained in him the title to the southerly half of the street. Undoubtedly, Graham's deed to the mayor, etc., of the city bounded the lands granted by the side of the old street; but whether the mayor's grant to McKay included the half of the street is a question dependent for its answer upon the interpretation which is to be given to the instrument of transfer. The general rule that a conveyance of land bounded by, or upon, a street carries the fee to the center of the street is founded upon a presumption. It is that, in ordinary cases, there is no reason for supposing an intention in a grantor of lands to reserve the fee in a strip of a street, or highway, bounding them, when its control and use have ceased to be of importance, or of benefit to him. (Haberman v. Baker,
There are various considerations, which seem to me to oppose themselves to the interpretation, which the plaintiff contends for, with respect to the grant to her father's predecessor in title, McKay. In the first place, it should be borne in mind that Graham, when executing a conveyance of his lands to the city, was acting in accord with the municipal authorities in an effort to readjust boundary lines, which, by the conflict in the maps, had become confused, by a rearrangement and exchange of territory and it is difficult to believe that it was in the understanding, or intention, of the parties that Graham was not reconveying all that he had title to in the block between 84th and 85th streets, in exchange for the conveyance to him of the block between 83d and 84th streets. In the next place, it is not without significance that the description in the grant to McKay of the northerly boundary is of "a street 60 feet in breadth betweenthe said lot hereby granted and released and lot No. 156." These might well be regarded as words of exclusion as to the land in the street *523
and which make the plot granted external to the street; as in the case in Massachusetts, to which we are cited. (Codman v.Evans,
The cases of Stevens v. Mayor, etc., of N.Y. (
I think the dismissal of the complaint was right and I advise the affirmance of the judgment appealed from, with costs.
PARKER, Ch. J., BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.
Judgment affirmed.