Grosser v. . City of Rochester

| NY | Jan 21, 1896

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This action was brought to restrain the city of Rochester and its contractor from constructing a sewer across the plaintiff's premises. The premises in question were conveyed to the plaintiff and her husband and are occupied by them as a residence. Under the deed they each became seized of an estate as tenants by the entirety. Prior to the commencement of this action the city of Rochester instituted proceedings to condemn a right of way for a sewer across the premises, but gave notice thereof to the plaintiff's husband only. Such proceedings resulted in the making of an award to the husband, which was paid into court. The city by its contractor then threatened to enter into possession of the premises to construct the sewer and thereupon this action was brought.

We fully agree with the learned referee and with the court below, that the notice served upon the husband and his appearance in the proceeding did not make the wife a party nor bind her interest in the premises, and that as to her the city acquired no right in the land.

It is contended, however, on behalf of the city that the sewer would not work a permanent injury to the freehold; that the husband was entitled to the benefit, use, possession and control of the land during the joint lives of himself and wife, and, having such possession and control, he had the right and power to grant to the city the right to construct the sewer across the premises and maintain it during his life; that the plaintiff's rights have not been infringed, and that no action can be maintained by her until she shall become vested with the absolute and entire estate as survivor of her husband.

When land is conveyed to husband and wife they each become seized of the entirety, and upon the death of either the whole survives to the other. We are aware that, by the common law, the husband before the death of his wife could possess and control the land and take all the profits thereof for his own benefit. (Bertles v. Nunan, 92 N.Y. 152" court="NY" date_filed="1883-04-17" href="https://app.midpage.ai/document/bertles-v--nunan-3622044?utm_source=webapp" opinion_id="3622044">92 N.Y. 152.) This right, however, followed the conveyance and inured to the husband under the general principle of the common law, and was not acquired by reason of the creation of a tenancy by the entirety. So that, when the disability of the wife was removed under the Married Woman's Act of 1848, and subsequent acts, she was thereafter permitted to have, hold and enjoy whatever estate came to her by devise or conveyance, and the husband's right to the sole occupancy and possession terminated. Thereafter she became entitled to hold, enjoy and possess with him as if she were a tenant in common. (Hiles v. Fisher, 144 N.Y. 306" court="NY" date_filed="1895-01-15" href="https://app.midpage.ai/document/hiles-v--fisher-3613998?utm_source=webapp" opinion_id="3613998">144 N.Y. 306.)

The construction of a sewer across the premises in question is a permanent injury and interferes with plaintiff's possession. It consequently follows that she has a present right to maintain the action.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.