130 Misc. 599 | N.Y. Sup. Ct. | 1927
On April 14, 1899, Edward H. Newman became the owner in fee of a farm located on the easterly side of Lake Keuka
The legal presumption, both as to the grantor and the grantee in a conveyance, with respect to a highway or road, is that one who owns both sides of the highway is presumed entitled to the fee of the road subject to the public easements. (Bissell v. New York Central Railroad Co., 23 N. Y. 61.) A boundary generally by and along a street, road or highway carries title to the center, although the street is not mentioned in the conveyance, subject only to the public easements (Bissell v. New York Central Railroad Co., 23 N. Y. 61) Perrin v. New York Central Railroad Co., 36 id. 120; Terrett v. New York & B. Steam Saw-Mill & Lumber Co., 49 id. 666), unless by words or by necessary construction of the wording of the conveyance or by specific terms of exclusion the contrary must be found. Newman had at all times retained title to and been in possession of the portion of his farm east of and
In 1926 defendant erected a garage within this roadway immediately at the rear of his lot, but neither Newman nor his grantees, including this defendant, had any power to do any act which would impair the easement or restrict the use of the right of way. (White’s Bank of Buffalo v. Nichols, supra.)
On September 16, 1914, defendant contracted to purchase from Newman a part of lot 11 as shown on the map. The contract contained this description of the part to be purchased: “ Commencing at the shore of Lake Keuka at an elm tree in the center of the gulley between lands hereby contracted to be conveyed
On September 22, 1919, Newman deeded that property to defendant by the same description. Previous to making the contract, Newman stated to defendant that the land he proposed to sell extended back from the high-water mark of the lake. He did not state to defendant that he intended to convey to him the entire amount of lot No. 11, but only the southerly portion thereof above described. He specifically stated to the defendant that the lot to be conveyed to him extended back to the road 125 feet from an elm tree, and he pointed out at that time to the defendant this road along the rear of the tier of lots. The defendant was familiar with the layout of this road, and had used it previous to this time, and was at the times of the maldng of the contract and conveyance thoroughly familiar with the map on file. There can be no doubt that defendant knew that the land which he proposed to buy extended only to the roadway as laid out on the map and as specifically laid out by Newman and as clearly defined at the time the contract was entered into. Defendant went into possession of his lot immediately after the execution of the contract, and prior to 1926 commenced the construction of a garage to the west of the westerly line of the road defined as aforesaid. Defendant now claims that he has a right to construct this garage to the east of this line and thereby close the highway to traffic, because Newman conveyed to him a depth of 125 feet which, measured from an elm tree which he asserts Newman pointed out as the starting point, would carry him back over this road. But, regardless of where the elm tree in dispute was located, this road as platted on the map and referred to in the various deeds and physically laid out by Newman, constituted a monument of which defendant not only had full knowledge when he purchased the property, but which was also specifically pointed out to him at that time as the rear boundary line of his property, and the grant cannot be extended by implication or conjecture or by circumstances not existing at the time of the grant so as to include any part of the road. ' (White’s Bank of Buffalo v. Nichols, 64 N. Y. 65.)
The rule is well settled that a conveyance is to be construed in reference to its visible locative calls, as marked or appearing on the land, in preference to quantity, course or distance; and any particular may be rejected, if inconsistent with the other parts of
The defendant having accepted the deed and entered into possession of the property, recognizing the westerly line of the road as physically laid out by the plaintiff, as the easterly boundary line of his property, is as effectually bound as though he had himself located that line. (Rogers v. Eagle Fire Co., 9 Wend. 611, 618; Spaulding v. Hallenbeck, 35 N. Y. 204; Worrall v. Munn, 5 id. 229.)
The main point of contention at the trial was the location of the elm tree referred to in the description as the point from which the boundaries of the lot start. The defendant has asserted and produced witnesses who have testified that the elm tree referred to and pointed out by Newman before the contract was executed was located approximately twenty-four feet east of the high- or low-water mark of the lake. If the tree was located at the point claimed by defendant, one hundred and twenty-five feet easterly therefrom would extend to substantially the easterly boundary line of the road as laid out by Newman, and would give to the defendant the fee in the road as laid out at the rear of his lot. Starting at the tree which he asserts is the starting point, and following the description, there would be a space of twenty-four feet in depth, the full width of his lot, on the lake front which he claims was in the lot conveyed. Newman did not point out this particular elm tree as the starting point of the description, nor does it stand in the center of the gulley. There is ample evidence to show that the elm tree referred to in the description stood in the shore line in the mouth of the gulley and at least twenty-four feet nearer the low-water mark proper than the elm tree which defendant claims marks the starting point for the description of his property. Prior to 1914 an elm tree of considerable age stood on this shore line in a line along the water’s edge with a row of elms. Some time prior to 1914, through action of the lake, this tree proper began to topple into the lake, and an effort was made, by placing concrete and stone around the base and over the roots, to protect it from being washed out by high water or destroyed by ice. The branches of this tree had been
It will be noted that the elm tree referred to is stated in the deed to stand on the shore of the lake. It is definitely settled that, where the description in a deed bounds the lands by navigable bodies of water where the tide ebbs and flows or by the shore or shore line thereof, the fee ends at the high-water mark. (Sage v. Mayor, 154 N. Y. 61; Clarke Estate v. City of New York, 165 App. Div. 873; People v. Canal Appraisers, 33 N. Y. 461.) The meaning of the term “ shore ” or “ shore line,” in descriptions of land lying along non-navigable- bodies of water, cannot be arbitrarily fixed. It has been held that grants of uplands along the shore line of non-navigable bodies of water carry the fee only to low-water mark (Child v. Starr, 4 Hill [N. Y.], 369; Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296; Gouverneur v. National Ice Co., 134 id. 355), and this doctrine has been approved in City of Geneva v. Henson (195 N. Y. 447, 463). It is not necessary to a decision here to determine whether Lake Keuka is a non-navigable body of water, although it might seem to be non-navigable water within the accepted meaning in this State. (Ten Eyck v. Town of Warwick, 75 Hun, 562.) The terms “ shore ” or “ shore of said lake,” as referred to in the deed from Newman to defendant, where the southerly side line measurement of the lot from the westerly line of the road monument together with the elm tree fixes the starting point, may properly be defined as intended to mean and as meaning the space between the low- and high-water mark of the lake. (Oakes v. DeLancey, 133 N. Y. 227.) It is in this space, at the mouth of the gulley referred to in the deed, that the elm tree, named as the starting point for the description stood, and this elm tree, so located, Is approximately 125 feet from the west
The only other question remaining is whether there should be a reformation of the deed so that the grant should include a lot seventy feet wide at the rear. Defendant asserts that Newman agreed to convey to him a lot seventy feet wide in rear. Newman had a lot only fifty feet wide to convey. The property on each side of that fifty-foot strip had been conveyed to others. Defendant accepted his contract describing his lot fifty feet wide, went into possession of a lot of that width, and has remained in possession thereof. He accepted a deed some years later than the contract, in which the width of the lot was specified at fifty feet, and placed that deed on record. He testified that he was familiar with the descriptions in both instruments, and that he had no discussion with Newman about the width of the lot after the execution and delivery of the deed. It must be held that there was no agreement between Newman and defendant that the former should convey to the latter a lot seventy feet in width.
It necessarily follows that defendant is a trespasser upon the road standing back of the tier of cottage lots and that he should be required to remove his garage therefrom. His conduct has been inexcusable from any viewpoint. His claim to right of possession and use of the roadway has been without the slightest basis or merit, and the judgment should award plaintiff suitable damages for such trespass, and the taxable costs of this action.
Let suitable findings and a decree be prepared and submitted. The parties may be heard at the courthouse in Hornell at twelve-thirty o’clock p, m. September 20, 1927, on the question of damages and any additional allowance that may be desired. So ordered.