117 Misc. 591 | N.Y. Sup. Ct. | 1922
A dispute as to the location of the boundary line between plaintiffs’ and defendants’ properties in this ejectment action arises from the fact that the former owner of the entire tract thought there was a greater frontage in the block than in fact there was. In 1881 a party named Morton, owning a tract of land at Middle Village, Queens county, caused a map to be made plotting it into lots. Ten years later this map was filed in the clerk’s office. The map shows some 500 lots or more. From it it is evident that it was the intention to, wherever possible, create lots regular in shape with a width of 25 feet and a depth of 100 feet. The properties in question lie in one of the blocks shown on this map. That block is bounded on the north by the Williamsburg and Jamaica turnpike, on the east by Morton avenue, on the south by Steuben street and on the west by property of another owner. According to the map the frontage of this block along Morton avenue is 211 feet 3 inches. As matter of fact the block measures only 206 feet 2% inches. The land facing the turnpike is laid out into lots fronting thereon. The lot on the corner of the turnpike extends south along Morton avenue, according to the map, 111 feet 3 inches. The map shows four lots each 25 feet wide and 100 feet deep fronting on Morton avenue between the south
The plaintiffs own lots Nos. 1 and 2. They front on the. turnpike at the corner of Morton avenue. According to the map they measure 111 feet 3 inches on Morton avenue and extend to a point that is 100 feet north of Steuben street. The defendants own lot No. 27, which fronts on Morton avenue and abuts plaintiff’s property. According to the map the northerly line of this lot is 111 feet and 3 inches south of the turnpike. This lot is 25 feet in width by 100 feet in depth. According to the map there are three other similar sized lots between it and Steuben street. The plaintiffs claim that they own 111 feet and 3 inches along Morton avenue. If they do then there remains but 94 feet and 11% inches between their property and Steuben street. According to the map there is 100 feet between their property and Steuben street. The defendants claim the lot they own begins 75 feet north
All the deeds of the property in question, including those from the common owner, refer to the map that has been mentioned. The references to it are not alike in all the conveyances but it is seemingly conceded that all the deeds do refer to it. The first deed from the common owner was made in 1886 to a party named G-ebhard. This conveyed, besides other property, five lots in this block numbered 1, 2, '3, 4 and 5. According to the map these all front on the turnpike, lot No. 1 being on the corner of Morton avenue. After expressly designating these lots by their map number the deed says that taken together they “ are bounded and described and contain as follows: viz. Commencing at a point on block 6 (VI) formed by the westerly side of Morton Avenue where it intersects with the southerly side of the Williamsburg and Jamaica Turnpike Eoad and running thence westerly along the southerly side of said Turnpike Eoad one hundred and twenty-five feet (125'); thence southerly parallel with Morton Avenue one hundred and seven feet and six inches (107' 6"); thence easterly parallel with Turnpike Eoad one hundred and twenty-five feet (125') to Morton Avenue; thence northerly along the westerly side of Morton Avenue one hundred and eleven feet (HE) and three inches (3") to the point or place of beginning, be the said measurements more or less.” This description is erroneous, as it shows
The second deed from the common owner was- made in 1898 to a party named Bermel. It conveyed five lots numbered 26, 27, 28, 29 and 30. The deed besides designating the lots by number stated “ Said 5 lots containing 12,500 square feet more or less. Said lot being shown on the following diagram and agreeable to said map.” There is no other description in this deed except as stated here. Nor is there any diagram or map attached to the deed. The map referred to in the deed is the one already mentioned. According to the map these five lots are each 25 feet wide by 100 feet in depth and contain exactly 12,500 square feet. Four of them, to wit, Nos. 27, 28, 29 and 30 front on Morton avenue and the other one, No. 26, fronts on Steuben street immediately in the rear of the other four. Lot No. 30 is at the comer of Steuben street and Morton avenue. Next comes lot 29 and then lot 28 and then lot 27.
These two deeds conveyed the entire frontage on Morton avenue between the turnpike and Steuben street and include the properties in question.
The next deed is by Bermel to the defendants. It was made in 1906 and conveyed lot 27. The only description in the deed was by lot number and the statement that it was part of the premises conveyed to Bermel by Morton.
“ Beginning at a point formed by the intersection of the Southerly side of Williamsburgh and Jamaica Turnpikes with the Westerly side of Morton Avenue, and running thence Southerly along the Westerly side of Morton Avenue, 111 feet, 3 inches; thence Westerly along the Northerly side of lot 27 on said map, fifty (50) feet; thence Northerly parallel with Morton Avenue 109 feet to the Southerly side of Williamsburgh and Jamaica Turnpikes; and thence Easterly along the Southerly side of Williamsburgh and Jamaica Turnpikes fifty feet (50) to the point or place of beginning.”
This description does not agree with the map in one particular. It says that the length of the westerly boundary, that is the course that runs “ northerly parallel with Morton avenue to the Turnpike ” is 109 feet. The map shows this course to be 109 feet and 9 inches. The reference in this deed to lot 27, which is defendants’ property, seems to refer merely to the lot as laid out on the map and not to the lot as occupied or possessed.
Upon the facts as stated I think it clearly appears that neither the plaintiffs nor their predecessor obtained title to a plot that extended 111 feet and 3 inches along Morton avenue. Had the frontage of that block been as represented on the map unquestionably such would have been the result. But that frontage was over 5 feet shorter than the map showed it to be. As the common owner had title to the entire block frontage if his first conveyance, which was to plaintiffs’ predecessor, had conveyed a plot 111 feet 3 inches in depth along Morton avenue, and had not
All that has been said concerning the conveyance to the plaintiffs’ predecessor is equally applicable to the deed to the defendants’ predecessor, except that in that deed there was no description other than by lot numbers. Both of these deeds from the original owner seem to show that there was . some question as to the accuracy of the map. In the deed to plaintiffs’ predecessor all the dimensions given are said to be “ more or less.” And in the deed to defendants’ predecessor, while the area of the five lots is stated, it is said to be “ more or less.” But even if the area had been positively stated it would have been matter of description only (Jackson v. Cole, 16 Johns. 257, 261),- and. would not have controlled. The sale of the lots by numbers with reference to the map would have determined what passed, by the deeds.
The general rule is that where land is conveyed by
While this is the general rule there is an exception to it which I think applies here. It is this. Where a map shows a plotting of a considerable tract and the creation of lots of regular width and depth, if a few of them are of irregular dimensions they are deemed to be the remnant of what remained o"f the entire tract after plotting the regular lots and if there is a shortage ifi the entire frontage the irregular sized lots must bear it. This is held upon the assumption that the owner intended to get as many regular sized lots as possible and that whatever remained of his frontage was to go into the irregular shaped plot and hence if he had more or less than the map showed the difference in the frontage would effect only the irregular lot. Baldwin v. Shannon, 43 N. J. L. 593, 596; Barrett v. Perkins, 113 Minn. 480, 485. In the case last cited the court says (at p. 485): “ In a situation like that the owner of the plat must be deemed to have intended to constitute the irregular remnant a lot by itself, regardless of its dimensions, and a purchaser thereof takes the whole remnant, whether of greater or less area than that indicated by the plat. It cannot be
The same rule applies where plots of regular size are laid out on a map and a portion remains, the dimensions of which are not stated. Pereles v. Gross, 126 Wis. 122. But the same court which decided the case last cited has held that wnere all the lots are given dimensions upon the map they should bear any shortage ratably and that it should not be taken wholly from the one lot which is of different size than the others, thus holding to the contrary of the cases in New Jersey and Minnesota, above cited. Pereles v. Magoon, 78 Wis. 27. I think the reasons given in the other cases, however, justify the conclusions reached and that they state the correct rule.
This rule seems especially applicable here. The common owner plainly intended to create lots of a uniform width of 25 feet and a depth of 100 feet. He laid out four such lots fronting on Morton avenue and then believing there remained 111 feet and 3 inches he made that the depth of the lots that he laid out fronting on the turnpike. It cannot be supposed that had he known the frontage was only 206 feet and some inches he would have cut down the width of the 25 foot lots. The whole map is contrary to such a suggestion. Hence it follows that the plaintiffs d.o
The defendants are entitled to judgment with costs. New findings and judgment in conformity with this decision should be submitted upon notice.
Judgment for defendants.