69 A.D. 329 | N.Y. App. Div. | 1902
These are two actions to recover partial payments made upon com tracts for the sale of land and the expenses upon the examination of the title. The plaintiff complains by his amended pleadings that the defendants failed to convey, in accord with the terms of the contract, the realty in fee simple, free from all incumbrances, for the reason that the property then was and still is charged with the maintenance and subject to all of the rights and easements of the public and. of
The defendants in one action are the executors of Isaac W. Yanderveer, deceased, and in the other action are the heirs at law of Yander veer’s, wife. The said executors are made defendants for the reason that they have a limited power of sale over a part of the tract of land, but the actual defendants in the first action are also the real defendants in the second action. The two actions were tried together before the court without a jury, and it was determined that the two parcels originally formed one tract, owned by Isaac W. Yanderveer; that the two contracts were made at the same time, admittedly were intended to effect a single purpose, and that it was not intended that one part of the said tract should be bought by the plaintiff apart from the other. I think that such determination is correct in view of the admission made at the trial by 'the learned counsel for the defendants. (Oscanyan v. Arms Co., 103 U. S. 263; Goodman v. Mercantile Credit Co., 17 App. Div. 474, 480.) Therefore, in this discussion I shall regard the realty which is the
A represents the parcel referred to in the Backus action. B represents the parcel referred to. in the Yanderveer action. C repre-. sents a plot excepted from the contracts. • DD represents a strip of. land to be used as stfeetSj also excepted. The strip D running north and. south is known as Yanderveer place, and the. strip D running east and west is called Elm place. The continuation of DD north
The Special Term (Rich, J., presiding) stated in its decision that the property was contracted to be sold in gross free from any incumbrance by reason of streets or rights of way thereover, but that Isaac W. Yanderveer during his lifetime made and filed or adopted certain maps, which were filed, whereon were shown various streets or proposed.streets crossing the said tract of land, which streets or proposed streets are four in number, as shown by the said map, and that all of the streets or proposed streets cross the larger portion of the tract described in the Yanderveer suit. And that at various and many times during his lifetime Isaac W. Yanderveer, by deeds in which his wife, Frances W. Yanderveer, joined, she being the separate owner of the smaller portion, conveyed property abutting on two of said streets or proposed streets, one being the street marked or named as Elm place, crossing the tract from east to west, and the other being the street marked or named Yanderveer place, which is the easterly of the three streets crossing the tract from north to south. Such deeds referred to the maps made or filed, and named such streets. And the learned court thereupon decided that the purchasers of lots on said Elm and Yanderveer places acquired a right of passage or right of way over said places, and the right to have the same kept open and maintained for such purposes, and that while neither said Elm place nor Yanderveer place crossed the smaller portion of the tract described in the Backus action, yet as such tract was sold with and intended to be a part of the same purchase with the larger tract plaintiff is entitled to the same relief as in the Yanderveer case.
In 1852, a map of “ Woodville Center Property, situated in the town of Jamaica, * * * surveyed and laid out into a village plot, building lots, blocks and sections of 10 to 20 lots each, * * * belonging to Isaac W. Yanderveer, Charles Porter,” etc., was made. The map showed Yanderveer place extending through the tract in question. In 1888, a revised map was made which showed this entire tract laid out into blocks and into building lots of land with streets laid down throughout the tract corresponding to Yanderveer place and Elm place and with two other streets running parallel with the street now called Yanderveer place through the said tract shown by
I think that the judgment, may be affirmed upon the ground that the grantee of the land marked C on the diagram had, as appurtenant to such land, as against his grantors, the easement to have Vanderveer place and Elm place, through this tract in question, kept open as laid down upon the map or maps.
Backus, the said grantee, as an individual, is not a party: to either suit, nor has any personal deed or release been offered by him, nor does it appear that any deed or release of his grantee, has been tendered to the plaintiffs. Indeed, in March, 1901, Backus made and filed a.map showing both Vanderveer place .and Elm place as continuing streets. In Lord v. Atkins (138 N. Y. 184, 191) the court, per O’Bbien, J., say: “ It is well settled that when the owner of land lays it out. into -distinct lots,, with intersecting streets or, avenues, and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived- of the: benefit
The learned counsel for the appellant points out that there is evidence that the intention of the grantors was not to create such easements. But in Bissell v. N. Y. C. R. R. Co., (supra, at p. 65) the court say: “ The question in each case becomes one of presumed intention arising upon the conveyance itself, and I am not able' to perceive how it is possible to deduce a different intention in one case from that which the law has settled shall be inferred in the other.’’ (See, .too, Wiggins v. McGleary, 49 N. Y. 346; Dillon Mun. Corp. [4th ed.] § 636.) Thus there was before the court a question of fact as to the intent.
The. appellant, without questioning the principle enunciated in Lord v. Atkins (ut supra), insists that “ the point involved in the cases at bar * * * is the extent or length, as it were, of such easement of access.” And his contention is that Fulton and Napier avenues, in connection with the streets DD as actually laid out, afford all rights of access which the law warrants, and that the grantee of 0 is not afforded any other easements and consequently he has no rights whatever as to DD as projected streets, extending respectively through the said tract. In Tibbits v. Cumberson (39 Hun, 456) the General Term of this department said that the question between grantor and grantee was “ not to be determined as if lands were sold which had no access to a public highway, and when a way
The learned counsel for the appellant criticizes the respondent’s citation of the rule laid down in Elliott on Roads and Streets (2d ed., § 120), saying that this case falls within the last sentence quoted, inasmuch as the author cites a New York authority for the exception noted. This is true. What Bronson, J., said in that case (Matter of Twenty-ninth Street, New York, 1 Hill, 189) is this: “I do not say that this dedication will extend to all his lands in the site of the street, however remote from the lots sold, but it will, I think, extend to all his lands in the same block, or, in other words, to the next cross street or avenue on each side of the lots sold. The parties must have contemplated an outlet both ways.” It is to be noted that the court did not decide the proposition advanced by the appellant. But taking what it did decidé, does it not make for the respondent? As to the lots sold on Vanderveer place, between Fulton avenue and Elm place, the cross streets on each side of the lots sold would be Fulton avenue and Elm place continued as it was laid out. It is not a cross street so long as it forms a cul de sac. * As to the lots sold on Elm place the same is true as to Vanderveer avenue. While it is not essential that a highway should be
The learned counsel for the appellant with much industry and ability has collated some decisions which require notice. Story v. N. Y. Elevated R. R. Co. (90 N. Y. 122) is cited with reference to page 146. The court, there referring to the extent of the easement, says, speaking “ generally,” that it was to have the street kept open so that from, it access may be" had to the lot. It is not discussing the question up in this case, it does not attempt to define access, it does not limit súch access to necessary access. On the other hand, in support of the general principle, it cites on the previous page two cases. (Wyman v. Mayor of N. Y., 11 Wend. 487; Trustees of Watertown v. Cowen, 4 Paige, 510.) But in the former case the court held as per head note :■ “ Such right of Way is not limited to the owner or owners of lots immediately bounding on the street in question, but extends to every purchaser from the original proprietor of lots in the same tract.” And the latter case, relating to a public square, is against the appellant. It was cited in White v. Tide Water Oil Co. (supra). Neither Lord v. Atkins (supra) nor Matter of Adams (supra) sustains the limitation, com tended for unless it is to be implied that access means only necessary access, which is satisfied by access in one direction. In Underwood v. Stuyvesant (19 Johns. 181) the streets planned were accompanied by an explanatory nóte saying that none had been approved and opened by the corporation, and they were, therefore, to be considered subject to such future arrangements as the corporation might make. The local authorities absolutely disregarded the plan and made a different one. Both this limitation and action of vis mayor were largely considered in the opinion. This case was distinguished upon somewhat similar grounds in White v. Flannigain (1 Md. 542). In Badeau v. Mead (supra) the court speaks of a roadsf and seems to confine its express holding to'rural property. (Pp. 336, 337.) (See, too, the discussion as to city streets at p. 338.) Badeau v. Mead is distinguished, in Taylor v. Hopper, which, as I have said, seems to be a direct authority in the case at bar. In Matter of Brook Avenue (40 App. Div. 519) Brook avenue was not mentioned as an existing street or as about to become
The judgment should be affirmed, with costs.
All concurred.
Judgments affirmed, with costs in one case, and disbursements in both.