15 Johns. 447 | N.Y. Sup. Ct. | 1818
delivered the opinion of the court. This i,s an action of ejectment for a piece of land in the, city of Hudson, over which the ancient road from Claverack to Hudson river formerly run.
The plaintiff showed a title in his lessor, John V. H. Huyck, to an undivided share of the premises in question,, under the patent to his ancestor Jan Francis Van Hoesen, dated the 6th of August, 1721. The defendant then proved a deed of conveyance from John V. H. Huyck to Ephraim Whitaker, dated 25th of July, 1793, for “ a certain tract of land beginning at a certain stake by the side of the road called the old Claverack road, &c. from which stake running east 20°. south, 2 chains, to another stake ; thence south, 22° west, 17 chains 64 links, and thence,”.by specified courses and distances, “ to the first mentioned bounds, making twelve acres, 2 roods and 1.0 perches of land. It ivas also proved, that the defendant had acquired a title by purdíase, to another tract of land, which, according to specified courses and distances, is bounded on the northern side of the said road.
It appears that about 16 years ago, by an order of the Common Council of the city of- Hudson, the “ old Claverack road” was discontinued as a public highway ; and that the defendant then enclosed a lot of about five acres, so as to include the whole width of the old road, together with
It is perfectly clear, that the fee of the land was not devested from the patentee or his heirs, by the act of the government, in laying out and opening the road. Highways are regarded in our law as easements. The public acquire no more than the right of way, with the powers and privileges incident to that right; such as digging the soil and using the timber and other materials found within the space of the road, in a reasonable manner, for the purpose of making and repairing the road, and its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished ; but is so qualified, that it can only be enjoyed, subject to that easement. The former proprietor still retains his exclusive right, in all mines, quarries, springs of water, timber, and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is, may maintain trespass, or ejectment, or waste. (1 Burr. 143. 2 Stra. 1004. 1 Wil. 107. 6 East, 154. 2 Johns. Rep. 363. 6 Mass. Rep. 454.) But when the sovereign chooses to discontinue or abandon the right of way, the entire and exclusive enjoyment reverts to the proprietor of the soil.
In this case, there is nothing, in the deeds for the lots bounded on the sides of the old road, which denotes any intention to buy or sell, any land not expressly included within the courses and distances expressly defined; and it is conceded, that those limits do not include the space occupied by the old road. A contingency has happened, which, probably, was not tbjought of by the grantor or grantee in those deeds ; that js, the discontinuance of the road. The grantee, however, has all the land included in the terms of his purchase; but he has lost, by the act of the government, the privilege of a highway adjoining his lots, and running between them. The laying out of roads, and their discontinuance, are contingencies to which every man’s land is
In the present case, I can perceive no principle of law to defeat the plaintiff’s claim to the land over which the old road passed. The government laid a quasi incumbrance on his land, and the government has since removed that incumbrance. Even while the road continued, the owner ,of the soil might have maintained an action of ejectment for an exclusive appropriation of it; afortiori, he can do so, after the public right of way is abandoned, unless/ by his own act he has become devested of his title. The only acts imputed to the plaintiilj or those under whom he claims, are the two deeds for the parcels of land bounded on the north side, and 1 on the south side of the old road. The boundaries in those / d§eds do not include the space of the road; and, of course, the plaintiff’s title to the intervening ground remains as perfect as if no road had ever been there. The purchasers tmder those deeds, have lost an easement which was public, not private; but they have, exclusive of the old road, all the land which they bargained for.
There are many cases of loóse, vague, and general description in deeds, which, undoubtedly, may require a different construction, and be subject to a different rule. Where a farm is bounded along a highway, or upon a highway, or running to a highway, there is reason to intend that the parties meant the middle of the highway ; but in this case the terms of description necessarily exclude the highway. The owner of the soil incumbered with a road, has a perfect right to sell it, subject to that incumbrance; and whoever buys land, without securing the fee of the adjoined roads, incurs the risk of such omission. That the original owner has also a right to retain his estate in the road, when he sells the adjacent lands, is a proposition too plain to be denied.
It is impossible to protect the defendant, on the ground that the adjoining road passed by,the deeds, as an incident to the lands professedly .granted. A mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absurd to allow the fee of one" piece of land, not mentioned in the deed, to pass as
We are, therefore, of opinion, that the plaintiff is entitled to judgment.
Judgment for the plaintiff.
Vide Peck v. Smith, (1 Day's Connec. Rep. 103—147. November, 1814,) in which the subject is fully discussed and considered by the judges of the Supreme Court of Errors of Connecticut. W. conveyed to the plaintiff a piece of land, with the usual covenants of seisin and warranty, “ saving and excepting the road, or highway, laid out, used and improved, running from the old highway to the bridge over the premises.” It was held, that the right of soil in the highway was vested in the plaintiff, subject to the right of passage in the public, and that he could maintain trespass quart ctausum fregit against the defendant for erecting a shop on a part of the highway not used for travelling before the conveyance to the plaintiff.