Lozier v. New York Central R. Railroad

42 Barb. 465 | N.Y. Sup. Ct. | 1864

By the Court,

Marvin, J.

In Bissell v. The New York Central Rail Road Company, (23 N. Y. Rep. 61,) it was held by the court of appeals that a conveyance simply designating the lot upon a map or plat made by the grantor, of lands in a city or village, as between the grantor and grantee, carries the land to the centre of the street, though the public may not have adopted the street so marked upon the map as a street or highway. The case is ample authority for holding, in the present case, that Comstock’s conveyance to Spaulding, in 1825, of lots 19 and 20, included the whole of Green street, lying between them, as designated on the map, and the west half of West Front street, on the east of these lots, and also carried lot 17 west of lot 19, south to the centre of Green street. This embraces all the land in question in this action. The description in the deed from Spaulding to Olmstead is somewhat different: “All of a certain piece or parcel of land, being village lots líos. 11, 15, 17 and 19, on the north side of Green street.” Does this description exclude Green street? In Bissell v. The New York Central Rail Road Company, the general rule of construction, where land is bounded by a highway, is stated, and it is said that it is based upon the supposed intention of the parties. In this case it cannot he supposed that Spaulding intended to exclude the north half of Green street. It will be noticed that ‘all the lots are referred to as “all of a certain piece or parcel of landand these lots are on the north side of the street. There was a lot (13) between lots 11 and 15. In Jackson v. Hathaway, (15 John. 447,) it was conceded that the limits of the land did not include the road, (p. 453,) and the decision was based upon this position. (See also Adams v. The Saratoga and Washington Rail Road Co., 11 Barb. 414, 452.) In my opinion, it was not t£le intention of the parties to exclude the north half of Green street. It is not perhaps very material to decide the question arising upon the description in the deed from Spaulding to Olmstead, as Olmstead subsequently conveyed lots 199, 201, 205, 207, on the west side of Front street back to Spaulding, who subsequently conveyed these lots to Davenport, referring to the map or survey of a part of the village, as “being village lots 199, 201, 203, 205 and 207, on the west side of Front street, now Lock street, 33 feet wide, &c. and being in a body in the corner of West Front, now Lock street, according to the aforesaid map, reference being thereto had.” Here the lots are designated by their numbers as upon the map, and the streets along which they lie are specified. There was no reason why the land in the streets should be excluded; and in my opinion there was no such intention. It was necessary to maintain the streets, if there were other lots on other streets, of the same numbers, as there undoubtedly were.

If it is the intention of the grantor who conveys lots having streets along them, to exclude the streets, his description must be clear and certain, showing such intention. (See Adams v. Saratoga and Washington Rail Road Co., 11 Barb. 452, and cases cited.) Davenport, in conveying the lot in question, and 205, the lot north of it, to Thomas, after referring to the maps, &c. bounds them on the east by Lock-street 66 feet, and “bounded on the south on Green street 99 feet, and being in a body in the corner of Lock street and Green street, containing more or less according to the aforesaid map, reference being thereunto had." It is entirely clear, by all the authorities, that this description carried the land in fee to the center of the streets. The sheriff’s deed designated the land as lots 205 and 207 of Lock street in the village of Lockport. I have no doubt the plaintiff was seised in fee of "the land described in the complaint, and that the learned justice erred in deciding otherwise.

But for the decisions of the court of appeals in Carpenter v. The Oswego and Syracuse Rail Road Co. (24 N. Y. Rep. 655,) and Wager v. The Troy Union Rail Road Co. (25 id. 526,) I should have doubted, very much, whether the remedy by ejectment was proper, in a case like the present. I think I should have concurred with Sutherland, justice, in dissenting in the last case, (p. 539,) and with Willard, justice, in Adams v. Saratoga and Washington Rail Road Co. (11 Barb. 454.) The cases, however, in the 24th and 25th New York Beports are decisive upon the question, and hold that ejectment is a proper remedy. It follows that the judgment must he reversed and there must be a new trial; costs to abide the event.

[Erie General Term, September 5, 1864.

Demis, Grover, Daniels and Marvin, Justices.]