| N.Y. App. Div. | Jul 1, 1903
This is an action of ejectment to recover a strip of land twenty feet wide, which the plaintiff claims to own, and which it is contended is between, his lot and that of the defendant. The defendant does not claim title to the fee of the strip, but an easement over it..
Benjamin Huntington owned a tract of land in the city of Utica. In 1847 he caused it to be mapped and platted and subdivided into lots, and the map prepared designated the land as part of Cosby’s. Manor. On. this tract was lot 22 as designated on the map which was bounded on the w'est by State street. He divided this block into lots, ten of which, fronted on State street, and each was thirty feet wide and extended back one hundred feet. An open space, twenty feet in width, extending through the center of the block and between lots 5 and 6 and connecting with State street was ■ delineated and not designated as a lot, but evidently intended for an alleyway. In 1852 Huntington conveyed the southeasterly quarter.' of the entire block, including the southerly half of' the easterly part of the alley, to the city of Utica and a schoolhouse was erected ■ thereon. This conveyance was made without reference to the alleyway, and the southerly half of the easterly part of the alleyway was closed up. At the time of that conveyance Huntington was still the owner of these ten lots to which reference has been made. In 1866 the executors of Huntington conveyed to one Jacob Schremp lot No. 5, which was the one immediately Contiguous to the said alleyway on the south. This conveyance referred to the tract of land as delineated “ on a map of part of Great Lot No. 97 in Cosby’s Manor,” and referring to the lot and block numbers and then described it as “ 30 feet in front on State street, and rear, and 100 feet deep, bounded westerly by the easterly line: of State Street, easterly by the westerly line of lot No. 14 in said Block * * * southerly by the northerly line of lot No. 4 in said Block * * * northerly by a line drawn parallel to last-mentioned line and 30 feet distant northerly therefrom.” ■ '
It will be observed that this conveyance does not refer in terms
In Bissell v. N. Y. C. R. R. Co. (23 N.Y. 61" court="NY" date_filed="1861-03-05" href="https://app.midpage.ai/document/bissell-v--the-new-york-central-rr-company-3582342?utm_source=webapp" opinion_id="3582342">23 N. Y. 61) one Mumford owned a tract of land in the city of Rochester and subdivided it into lots. He sketched upon the map a street denominated Erie street, which was not in fact opened as a highway. In the conveyance to the plaintiff, as well as in the other deeds, the lots designated'on the map were referred to, but no reference was made to Erie street. The Oourt of Appeals held that, notwithstanding this omission, the plaintiff acquired title to the center of Erie street. This case was followed in this particular in Hennessy v. Murdock (137 N.Y. 317" court="NY" date_filed="1893-02-28" href="https://app.midpage.ai/document/hennessy-v--murdock-3600152?utm_source=webapp" opinion_id="3600152">137 N. Y. 317, 322, 323). In the conveyance to Schremp the deed purports to transfer “the edifices, buildings, rights, members, privileges, advantages, hereditaments and appurtenances ” appertaining to the lot conveyed, which terms are sufficiently broad to include the easement over the alleyway. At the time of the conveyance to Schremp the map had not been filed, but was filed in May of the year following. We must assume, however, that as the map referred to was the sole basis of the description incorporated in the deed, the land was sold with particular reference to whatever appeared upon the map, and that the grantee was cognizant of the alleyway set out thereon.' It is urged by the counsel for the appellant that by conveying the easterly part of this block and ignoring the strip of land mentioned, it indicated an intention on the part of the grantor to close up this alleyway. The conveyance to Schremp and the filing of the map occurred long after this, and indicated that the existence of this alleyway still, remained undisturbed, extending back to the rear of the lots fronting on State street. After Schremp acquired the title
We think the judgment should he affirmed, with costs to the respondent.
McLennan, Williams, HisoocK.and Nash, JJ., concurred.
Judgment affirmed, with costs.