1 Trans. App. 253 | NY | 1867
Lead Opinion
The entire and exclusive appropriation by the defendant, of the premises in controversy, laid down on the map, and there denominated "Park," was sufficient as a disseizin to entitle the plaintiff to recover in this action. (
In the case cited, this court held that Mumford (under whom Bissell claimed title) by his conveyances of the lots abutting on the strip, designated "street," on the map, passed the fee therein to his grantees, consequently that Bissell could not recover against the defendants, who had become sole owners of all the adjoining lots.
As has been already suggested, the only difference between the case cited and the one under consideration is, that in the former the strip of land sought to be recovered was designated "Street" on the map, and in the latter it was designated "Park." In fact is there any difference which should require a different judgment in the two cases? Bissell's case was made to depend on the intention of the grantor, to be determined from the conveyances themselves, considered in connection with the map which by reference was made part of them, the location of the lots, and the use for which the strip of land in controversy was obviously set apart and dedicated. So it was reasoned that it was intended as a street because so designated on the map, and was intended as a means of access from the public highway to the lots abutting on it which had no other common approach, public or private, and that it materially enhanced their value. It was therefore decided, that such strip was intended for the exclusive use and enjoyment, so far as the grantor was concerned, of the grantees of the adjoining lots, and that when the title to all the lots centered in one person, he was entitled to its exclusive possession against any claim *123 the grantor could urge by way of action in ejectment. Let us now apply the reasoning adopted in that case, and which it seems was satisfactory to every member of the court who took part in its decision, to the one in hand. The plaintiff with a view to place his lands advantageously and profitably in market, caused them to be mapped, laid off in lots, and the lots to be numbered. He left on the map a narrow strip forty-three feet in width, opening at one end into the public street, and extending into the plat one hundred and ninety feet. On this he located nine lots, seven of which had no other access to the public street. Without the advantages afforded by such passage way, those seven lots would be comparatively valueless.
There was no indication on the map, on the ground, in its subsequent use, or in the deeds of the adjoining lots afterward executed, of an intention to leave this strip of land open and vacant for ornament. On the contrary, the inference must be directly the reverse, for its form and location rendered it inappropriate for that purpose, while it was needed and became useful and valuable as a means of access to the lots in rear of those fronting on public streets.
It is beyond controversy that this strip of land was to be left open and vacant for the use of the owners and occupants of the adjoining lots, for all the purposes of a street; and there is nothing to indicate that the plaintiff entertained any other or different purpose. Then, to adopt the language of Mr. Justice MASON, in Bissell's case, "as between these parties, grantors and grantees, it is a public street to all intents and purposes, except that the public authorities are not bound to keep it in repair. It is made such by the plaintiff himself in laying out the street and putting it upon the map, and selling these lots upon either side of it with reference to the map and street; and he has probably received the full value of the street in the increased price of the lots sold upon it." It is urged that the designation of "Park" on the map was of controlling significance against the intent that the dedication was for a street. The Supreme Court adopted this view. The learned judge at the circuit *124 found and decided "that when the plaintiff laid out and platted his tract, which included the premises in question, he intended the space of land in question to be what he has designated it on the map — a park — and not a mere passage way, leading by and to the adjoining lots." This finding is based on the fact that he designated the strip of land "Park" on the map. What it was called I think of very little importance, when its use and principal purpose is obvious beyond possible conjecture. It cannot be denied that it was to be used as a passage way or street. This became a necessity from the location of the lots abutting upon it. This necessity rendered it inappropriate as a park. Nor does it answer the strict definition of park as platted on the map. A park is, in its strict sense, a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament. This strip of land was uninclosed — open to the common and was intended so to remain — nor was it set apart either for pleasure ground or for purposes of exercise, amusement or decoration.
Its shape and situation was unsuitable for either purpose. It was opened for use and use alone, and that use was as a passage way or street. This was its primary and chief design, and, so far as the case shows, its only design. Although called a park, as we have seen, it was not a park, and its intended use as a street was as much beyond question as was the use of Erie street in Bissell's case. The decision in that case must, therefore, control the judgment in this.
The judgment of the General Term and of the Special Term should be reversed, and a new trial ordered, with costs, to abide the event.
All concur except HUNT and SCRUGHAM, JJ., who dissent.
Dissenting Opinion
It has long been the settled law of this State, that a conveyance of land bounded upon a highway generally conveys title to the center of the highway. Since the decision of Bissell v.The New York Central R.R. Co. (
The rule is based upon the presumed intention of the party making the convevance. The ownership of the land between the line of a lot and the center of the street or highway would be of no presumable benefit as a reserved title in the grantor. So if the land, which is covered with water, between the bounds of theterra firma and the center of a stream or of a ditch, or of the space upon a wall forming a boundary line. Some convenience might arise to the grantee from the ownership of this space, subject to the public easement, but it was supposed that a title dissevered from the adjoining land which was conveyed, would be of no advantage to the grantor, and hence, it was presumed to be his intention that his conveyance should extend to the center of the street or river. (Auth. sup.) Found solely on presumed intention, it was always competent to the grantor to employ language which should indicate a contrary intention. Of this many illustrations are given in the books. (Auth. sup.; and 1 Sand., S.C., 337, 344.)
A conveyance of lots by numbers and by reference to a map on file, where said lots are designated on the map as bounded upon a street thereon laid out, gives title to the grantee, to the center of the street. (Bissell v. N.Y. Central R.R. Co.,supra; Glover v. Shields, 1 Barb., 374.
The decision in Bissell v. N.Y.C.R.R. Co. was made in reference to lots laid out upon a map platting another portion of the identical lands now in question. Mr. Mumford had divided his portion of the land into lots, representing them on a map as abutting upon a street extending from Kent street through the center of his tract, and through the adjoining tract to Jones street. This avenue was designated on the map as "Erie street." Mumford then sold his lots by numbers, referring to the map, but making no mention of this street by name. The grantees built upon their lots and used the strip designated as Erie street as a means of access *126 to their lots, as far as Mumford's land extended. The street was never opened through the other half of the tract to Jones street. It was held, that as between the grantor and the grantee, this conveyed the land to the center of Erie street; that there was no difference in this respect between the ordinary highway and a street in a city, and thus the fact that the adjoining proprietor did not open his portion of the street, and that the same was therefore closed at one end, made no difference. The presumed intention of the grantor was held to be of a conveyance to the center of the street as designated on the map.
A street or highway is a portion of land set apart for passage or travel. When, therefore, lots are sold by reference to a map, on which such lots are designated as fronting upon a street then laid down, the transaction contains, in substance, a declaration by the grantor that the space designated as a street is, and shall continue to be, a street, and his presumed intention consigns title to his grantee, to the center of the designated street.
A "Park" is an inclosed space in a city or village, set apart for ornament or to afford the benefit of air, exercise or amusement. It is not by its terms intended as a passage way, or for the purpose of public travel. It is defined by lexicographers as an inclosed space, referring doubtless to the intention or expectation that it shall be inclosed, and not making its character to depend upon the fact whether it is inclosed at any particular time. If inclosed, or intended to be, of course the idea of passage or travel over it is excluded. Streets and highways have an established size, by the custom of the country, and the regulations of the statute, varying from ten rods to six rods in width. A park, on the other hand, has no customary size. It depends on the capacity of the land, or the liberal-mindedness of the person laying it out. The City Hall park, in the city of New York, contains but a few acres, and it is as large as the parks in the most of the cities of this State. The Central park, however, and the parks of some of the cities of Europe, contain nearly a thousand acres. Can it be said that a lot bounded upon one of *127 these parks, conveys to the center of it all the title that the grantor might have thereto? Could such be presumed to be the intention of the grantor? I think not. There is or there may be sources of substantial benefit and enjoyment in the use of a park, not belonging to the owners of property bounding upon it. The advantage of the open air necessarily pertains to the adjacent property, but the right of entry, use and occupation, unlike that of a street or river, may be limited by the owners of the park, to persons not residing near it, and depending upon conditions altogether different.
A park is essentially different in its nature from a street, and is governed by principles of a different character. It could under no circumstances be considered as a line merely. A street becomes a street, as between grantor and grantee, by being so designated on the map by which the lots are sold. It is quite likely that a park may become a park in the same manner. But there is neither authority or principle for saying that lands may be made a street by designating them as a park. It would be as unreasonable as to attempt to create a park from what the owner should designate upon his map as a street.
I agree in the appellant's argument, that this is a question of law, arising upon the construction of the deed and map. Where the language of the deed creates an ambiguity, the surrounding circumstances may be shown to aid in the construction. (French v. Carhart, 1 Comst., 96.)
Here there is no ambiguity, and it is unimportant whether the early occupants used the park as a street, and called it a street, or whether they did neither. Those are circumstances which could not give title to them, or divert that of the real owner, unless continued during a period of twenty years.
Ejectment is the proper form of remedy for such a possession as that taken by the defendant of the premises in question. (Carpenter v. O. S.R.R. Co.,
The judgment should be affirmed.
Judgment reversed. *128
