49 Barb. 86 | N.Y. Sup. Ct. | 1867
On the 31st January, 1848, William Moore and James Wilson were each the owner of a farm situated in the town of Bethlehem, Albany county. The farm of Moore lay between the farm of Wilson and the public highway, and Moore conveyed to Wilson the strip of land, in controversy, being 24 feet wide, and extending from the land of Wilson to the public highway. The material question, in this case is, whether Moore did, by the deed in question, convey the fee of the strip of land, or merely create an easement ? The deed contains the following provisions : “ The said party of the first part, for and in consideration of the sum of one dollar, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged and confessed, and for the faithful performance of certain things hereinafter mentioned to be done and performed by the party of the second part, his heirs and assigns, has granted’, aliened, remised, released and confirmed, and by these presents do grant, release and confirm unto the said party of the second part and to his heirs and assigns, all that certain strip of land hereinafter described, of the width of 24 feet for a private road.” “ The said party of the second part binds himself, his heirs and assigns, to and with the party of the first part, his heirs and assigns, that they may have free and full permit to travel the said road. The deed contains the usual covenant of warranty. In our opinion, the deed conveyed the land in fee. The covenant on the part of Wilson, the grantee, securing to Moore, the grantor, the right to travel upon the said road, is certainly consistent with the assumption that Wilson was to, and did, become the owner of the land,
Peckham, Ingalls and Hogeboom, Justices.]