34 N.Y.S. 724 | N.Y. Sup. Ct. | 1895
Plaintiff’s complaint alleges ownership of certain lands, therein particularly described, situate in the city of Ithaca, -in block 107, and that on the 26th of April, 1892, the defendant wrongfully entered upon the plaintiff's land described, “tearing down the gates and taking down the fence standing upon said land of the plaintiff, and removing the same, and injuring said premises, and thereby said defendant has deprived the plaintiff of the use and occupation of said land above described, and prevented it from enjoying the same as it otherwise would have done, to the plaintiff’s damage of one hundred dollars.” The answer contains several denials, and denies that the plaintiff is entitled “to a strip of land twelve feet wide, taken off from the north side of lot 182, the said strip of land being a portion of the premises described in this complaint in this action.” The answer of the defendant also alleges “that he is entitled to use as a lane or alleyway, and for alley purposes, the lane, twelve feet wide, off from the north side of lot 182, block 107, on Plain street, in said city of Ithaca, said alleyway being a part and parcel of the land described in the complaint in this action.” The answer also alleges “that the said alley was reserved for a right of way and alley purposes by Anson Braman, the former owner of said premises, for the use of lots 181 and 182, and also for the use of himself and his assigns.” And the defendant alleges that he is the owner of lot 181, “and has the right to use said alley or right of way off from the north side of lot 182.” The
From the language found in the conveyances just alluded to, it is apparent that it was the intention that the right of way should be for the convenience of the properties, to wit, the property owned by the defendant and the property owned by the plaintiff. In order to subserve fully the purposes of the right of way, and especially to enable the defendant to have full benefit thereof, it is quite reasonable to suppose that the intention of the parties was that the right of way mentioned in the conveyance by Braman to O’Daniel should be of the entire length of the premises thereby conveyed to him. A careful perusal of the oral testimony, although it is very conflicting, and would, perhaps, have warranted the referee in reaching
“In considering the extent of the rights of the respective parties in the grant of a right of way, it is not proper to refer to the parol negotiations which preceded its execution, or the colloquium accompanying it. Bayard v. Malcolm, 1 Johns. 467; Renaud v. Sampson, 12 N. Y. 561; Long v. Railroad Co., 50 N. Y. 76. But we are to regard the language of the grant, and when there is uncertainty, or ambiguous words, the circumstances surrounding it, and the situation of the parties, with a view of arriving at the true intent of the parties.”
We find no occasion to disturb the rulings of the referee, or his' report, because he received the facts and circumstances as to the situation of the property at the time the language was used by the parties in creating the easement. As we have before said, there was a great conflict in the evidence; and after a careful review of it, and awarding to the referee’s report such influence as we think it should receive, we accept his conclusion upon the facts, and we are of the opinion that his conclusion upon the facts accords with the weight of the evidence. Barnard v. Gantz, 140 N. Y. 249, 35 N. E. 430. ‘ Nor do we find any occasion to disturb the conclusions of law stated by the referee in his report, which were as follows, viz.:
“(1) That by the deed of September 3, 1868, Anson Braman conveyed to Addison M. O’Daniel, with the western portion of lots 181, an easement appurtenant thereto, for the right of way over a strip of land twelve feet in width, taken off from the north side of lot 182, and extending eastward from the line of the Seymour property, which was sixty-six feet east of Plain street, to a line one hundred and thirty-two feet east from Plain street, and at the same time granted to said O’Daniel and his assigns the right of way, so far as it was in the power of the owner of the premises now held by the plaintiff to do, over that portion of said lane which extends from Plain street sixty-six feet eastward. (2) That the defendant, as the successor of the title and interests so conveyed to said O’Daniel, did on the 26th day of April, 1892, have the right, as against the plaintiff, to use the lane, throughout its entire length, as a means of ingress and egress to his premises; the right to open, by force, if necessary, the gate across the lane at the west line of the plaintiff’s property; and also had the right to remove so much of the fence in front of his bára as was necessary to make convenient access thereto from the lane.”
2. Appellant complains of a ruling made by the referee. When the witness Catherine M. King was being examined, the following question was propounded to her: “Q. Did you have a conversation with Mrs. Braman, now Mrs. Starr, before the premises were sold to Lynch, and after Mr. Braman’s death, in which a lane on the north side of the Braman bam was referred to?” This question was objected to by the plaintiff as leading, incompetent, and improper. The objections were overruled, and an exception was taken, and the an
3. Many other rulings were made during the progress of the trial. In some instances, after the particular question was propounded, and the objections thereto sustained, it appears the evidence was subsequently received which the question apparently called for. We ■observe that the referee allowed considerable latitude to either side in developing the evidence that related to the situation of the premises and the acts of the parties in respect thereto. We have observed no ruling that presents prejudicial error, calling for us to interfere with'the result reached by the referee. Numerous exceptions were taken to the referee’s declining to make some more minute findings of fact in response to requests that were made. In several instances the requests related to matters involved in conflicting evidence, and the referee, in declining, committed no error which should lead us to interfere with his refusal. And in some instances the requests were for facts which were immaterial, in the light of the principal findings made by the referee upon the leading features of the case.
4. It is contended in behalf of the appellant that, as some evidence cropped out during the trial which indicated that “the defendant’s barn being two feet over on plaintiff’s land,” it is therefore apparent that the defendant “is not entitled to cover a portion of the land with his barn”; and it is insisted in behalf of the plain
The foregoing views lead to the conclusion that the report of the referee should be sustained. Judgment affirmed, with costs. All concur.