77 A.D. 484 | N.Y. App. Div. | 1902
The plaintiff’s action is to enjoin the defendant, a street surface railroad corporation, from constructing and maintaining a railroad in front of his property on the east side of Freeport road in the town of Hempstead, Nassau county, and from interfering with him
The plaintiff is the owner of a tract of land on the easterly side of the highway, containing about twenty-three and thirty-six one-hundredth acres of land, more or less, with a frontage upon the road of about sixteen hundred and fifty-one feet. He also claims the ownership of the fee of the easterly half of the highway in front of his premises. Upon this part of the highway the defendant was constructing the street railroad which the plaintiff seeks to enjoin.
Plaintiff’s title is under a deed executed in 1893 by Laura A. Duryea and her husband, containing the following description :
“ Beginning at a point on the North Easterly side of the Babylon Turnpike (so called) at a point intersecting the land of J. Tompkins, thence North thirty-five degrees, thirty minutes East three hundred and fourteen and eight tenths feet along land of said Tompkins until it comes to the land of J. K. Boyd, deceased, thence North seventy-four degrees, twenty-six minutes East, six hundred and ninety-five and seven tenths feet along said Boyd’s land until it comes to the land of William Powell; thence along the land of William Powell South twenty-four degrees, forty-eight minutes East, five hundred and eighty-seven and seven tenths feet; thence along the land of said Powell South twenty-two degrees, thirty-two minutes East one hundred and eighty-two and five tenths feet; thence still along said Powell’s land South thirty degrees, four minutes East, six hundred and fifty-four and three tenths feet until it comes to the land of H. Duryea; thence along said Duryea’s land South forty-four degrees fifteen minutes West, three hundred and ninety-four and six tenths feet witil it comes to the North easterly side of the Babylon Turnpike (so called); thence along said Turnpike North forty-five degrees, forty-one minutes West one thousand one hundred and fifty-nine feet; thence along said Turnpike North forty-six degrees, forty-nine minutes West one hundred and thirty and three tenths feet; thence still along said Turnpike North fifty-four degrees three minutes West three hundred and sixty-two and
Mrs. Duryea’s title was under two deeds, one from Joseph S. Morrell, dated April, 1873, wherein the land was described as “ lying on the easterly side of the Highway,” and bounded “ Northerly by land now or formerly belonging to Townsend B. Pettit; Easterly and Southerly by land formerly belonging to James Powell and Westerly by said Turnpike Road and as containing within said bounds twenty-eight acres more or less. Which said farm or tract according to a recent survey thereof made by James J. Matthews, is bounded and described as follows, to wit:
“ Beginning at the Southwesterly corner thereof on the easterly side of the Highway formerly known as the South Oyster Bay Turnpike Road adjoining land of Joseph E. Tompkins cmd at a locust stake d/riven in the grouaid, and running thence along said Highway South fifty-five degrees and twenty-five minutes East three hundred and twenty feet and three tenths of a foot; thence still along said highway South forty-seven degrees and forty-five minutes East, one hundred and thirty feet and three tenths of a foot; thence still along said highway South forty-six degrees, and forty-one minutes East one thousand one hundred and fifty-seven feet to land of Stewart S. Half, thence along said land North seventy-one degrees, and thirty-four minutes East, three hundred and ninety feet and seven tenths of a foot to land of William Powell; thence along said Powell’s land North thirty-one degrees, and thirty-six minutes West, six hundred and thirty-four feet and eight tenths of a foot; thence still along said land North twenty-nine degrees, and thirty-eight , minutes West, two hundred and eight feet and four tenths of a foot; thence still along said land North twenty-three degrees, and twenty-one minutes West, one hundred and eighty-two feet, and four tenths ■of a foot; thence still along said land North twenty-five degrees and forty-four minutes West, five hundred and eighty-seven and one-half feet to land of Nicholas Degroot; thence along said land and land •of Joseph E. Tompkins South seventy-three degrees and twenty-nine minutes West, eight hundred and twenty-eight feet and eight tenths of a foot; thence along said land of said Joseph E. Tompkins, South
I have italicized the portions of the descriptions which, in my-view,- must control our decision.
The plaintiff contends that under these deeds his grantor, Mrs.. Duryea, was the owner of the fee of the easterly half of the highway and that under the description of her deed to him, especially under the clause, “ Together with all the rights of the' Grantor (that is, Mrs. Duryea) in and to said Babylon Turnpike,” he is the owner of the fee of the easterly half of the highway, and the validity of this claim is the question involved in this appeal.
The court at Special Term decided that while the plaintiff was-owner of the property east of the highway he was “ not the owner of the fee of that part of the highway known as the Freeport road, or Greenwich street, which lies easterly of the centre line of said highway in front of the property owned by him,” and dismissed the complaint, saying: “ The action being founded upon an alleged trespass upon real property of the plaintiff it follows that the complaint must be dismissed upon the merits.”
In Kings County Fire Ins. Co. v. Stevens (87 N. Y. 287) there was a deed conveying land on the “southerly side of the Wallabout bridge road.” After running certain courses and distances the line ran “five hundred and ninety-four feet to the Wallabout bridge-
In the case last cited it was said (p. 70) : “ Whether a grant of' lands bounded by a street, highway or running stream, extends to the center of such street, highway or stream, or is limited to the exterior line or margin of the same, depends upon the intent of the parties to the grant as manifested by its terms, so that the question as to the true boundary is, in all cases, one of interpretation of the-deed or grant.” The deed under which title was claimed described the property as beginning on the northwesterly line of a street, intersecting the northeasterly line of another street, and thence along-the line of Carolina street to the place of beginning. The court: said (pp. 71, 72): “ Although the highway is in one sense a monument, it is regarded as a line, and the center of the highway in such, case is regarded as the true boundary indicated, as is the case when a tree, stone or other similar object is designated as a monument; the center, in the absence of any other indication, is. regarded as giving the true boundary or limit of the grant. (Berridge v. Ward, 10 C. B. [N. S.] 400; Wallace v. Fee, 50 N. Y. 694; Perrin v. N. Y. C. R. R. Co., 36 id. 120; Bis
In the deed from Mrs. Duryea to the plaintiff the description is of a tract on the easterly side of the highway “ Beginning at a point on the North Easterly side” of the turnpike, “at a point intersecting (sic) the land of J. Tompkins,” and running by courses and distances until, by a line of specified length, “it comes to the North easterly side” of the turnpike.
The beginning of the description in the Morrell deed to Mrs. Duryea is more precise. It reads “ on the easterly side of the Highway * * * and at a locust stake driven in the ground," thence running “ along said Highway ” and returning a specified number of feet “ to the highway aforesaid at the point of Beginning.” The length of the front of the premises along the highway in this deed is stated to be 1,607 feet.
The second deed to Mrs. Duryea, that is, the deed from Tompkins,- also describes the property as being on the northerly side of the highway, “ Beginning at a locust stake and running along the Northerly side of the Babylon Turnpike * * * forty-one and seven tenths feet,” etc., returning a given number of feet “ to the place of beginning.”
Thus in each of the deeds to Mrs. Duryea, the grantor of the plaintiff, there is a fixed and definite point marked by a locust stake ■on the easterly or northerly side of the highway as a monument, at which the description commences and to which it returns. The use of this locust stake as a monument, in connection with the other words of the description above quoted, would seem to manifest the intention of the grantors that such stake and not the center of the highway should be the monument of the description (See White's Bank of Buffalo v. Nichols, supra), and thus to exclude the highway from the land conveyed by such deeds.
There are no previous deeds in evidence. It is not shown that either Morrell or Tompkins, Mrs. Duryea’s grantors, ever had any title to the highway or any reserved right therein. The mere recital of the reservation of rights cannot create rights which are
In addition to this, as shown in the calculation set out in the respondent’s brief, the accuracy of which is not challenged in the appellant’s answering brief, the amount of land included in the-description, according to lines and courses, is twenty-three and thirty-five one-hundredths acres, which is the amount of land stated to be conveyed in the latter part of the description in the plaintiff’s-deed. This area excludes the highway. The inclusion of the highway would add an acreage of one and fourteen one-hundred ths* making in all twenty-four and forty-nine one-hundredths acres, and this exceeds the amount named in the deed. This method of referring by way of explanation to the quantity of land called for by the courses and distances named in a deed was used by the court in Higinbotham v. Stoddard (72 N. Y. 94), referred to in Watson v. City of New York (67 App. Div. 573), where the court, Mr. Justice Hatch writing, said (p. 580): “ Where a specific quantity of land is located by precise measurements, such measurements may be laid hold of as evidencing the intent of the parties, and will be controlling of the center of the street as a monument, when it appears, that the quantity of the land within such boundary evidently answers to the intention of the parties.”
There is no evidence, therefore, upon which to sustain the contention of the plaintiff that his grantor, Mrs. Duryea, was or that he is the owner of the fee of the easterly half of the highway.
As an abutter, the plaintiff is not entitled to an injunction restraining the construction of a railroad authorized by the State. (Fobes v. R., W. & O. R. R. Co., 121 N. Y. 505 ; Case v. County of Cayuga, 88 Hun, 59; Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270.) In the last case it was said (pp. 276, 277): “ The law is well settled in this State that where the property of an abutting owner is damaged, or even his easements- interfered with in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even
It follows that the plaintiff has not established by evidence any title to or possession of the easterly half of the highway and is not entitled to an injunction or to the relief demanded.
The judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.
Bissell v. W. T. O. R. R. Co.