19 Wend. 128 | N.Y. Sup. Ct. | 1838
By the Court,
The map, under which Mr. Whiting made his sales, designated the street and avenues as they had been previously laid down on the commissioners’ map filed in 1811. • In the conveyance of the lots, the purchasers were, in terms, bounded on the street. If we Stop here, it is then a settled question that the grantor was only entitled to a nominal sum for the fee of the land in the site of the street, when it should afterwards be taken by the corporation; and had he sold the land in the street to a third person, his grantee would have had no greater right. Matter of Seventeenth-st., 1 Wendell, 262. Lewis-st., 2 id. 472. Livingston v. Mayor of N. York, 8 id. 85. Wyman v. The same, 11 id. 486. Furman-street, 17 id. 661. It is said that these cases proceed on the ground of an implied covenant that the purchaser should enjoy a perpetual ease.
In relation to Mr. Sided, this case presents a new question. In the conveyance to him, Mr. Whiling first granted several lots bounded by the street, and then granted one half of the land lying in the street and adjoining the lots. Had the deed stopped here, there would perhaps have been some difficulty in denying the right of the grantee to claim full compensation for the land on opening the street. But it is unnecessary to consider that question. The grant is qualified by the provision, that the lands lying in the site of the street “ are not to be enclosed, but always to remain open as a public highway.” Here the grantor and grantee, the one by making, and the other by accepting the conveyance, both unite in dedicating the land to public use.
But in the construction of deeds, as well as wills, the intent of the parties is to govern, and it is the duty of the courts to carry that intent into effect, so far as it can be collected from the whole instrument, and is consistent with the rules of law. 1 R. S. 748, § 2. If we look at the whole of this instrument in connection with the existing state of things at the time it was executed, it is impossible to mistake the intention of the parties. In pursuance of an act of the legislature, the whole of Manhattan island had been surveyed, and streets and avenues had been laid out in reference to the anticipated growth of the city. It had been settled that if landholders made sales and bounded purchasers by a contemplated street, they thereby dedicated the land in the street to public use, and could only demand a nominal sum for the fee of the land when it should after-wards be transferred to the corporation. In this state of things Whiting laid out and sold his lands, not for agricultural, but for city purposes; selling in small lots bounded by a contemplated street. On this dedication of the site of the street to the public, he was willing to convey all his remaining interest in the land to the purchasers respectively, taking care, however, to declare that the grant was not made for private purposes, but to the end that the street should al
The other purchasers who stand in the same situation as Mr. Sidell, are not before the court. So far as appears, they do not complain of the principle on which the commissioners of estimate and assessment have proceeded.
The fee of one half the land in the street adjoining the lot which Mr. Whiting bid off himself, still remains in him. But on the principles which have been settled in the cases to which I have referred, he is only entitled to a nominal sum when the land is taken by the corporation. He has dedicated the whole street, so far as it passes through his land, to public use.
Report confirmed.