Perrin v. New York Central Rail Road

40 Barb. 65 | N.Y. Sup. Ct. | 1863

By the Court, Welles, J.

The question to be determined in this case is, whether, when the plaintiff conveyed the lots abutting on the premises in question, he parted with his title to such premises ; and that depends upon the question whether those premises can properly be regarded as a street. If it was designed by the plaintiff as a street, lane, alley or way for ingress and egress in order to afford communication between the lots abutting upon it and Jones street, which was one of the public streets of the city of Rochester, the law is settled that the conveyance of those lots by the plaintiff carried the grantees to the middle or centre of the piece of ground in question. It was never doubted that in regard to public highways in the country, such was the rule. In the case of Bissell v. these defendants, (23 N. Y. Rep. 61,) it was decided that the same rule applied to streets in a city. The same rule applies also to a river, creek, ditch, wall, or any similar object, when given as a boundary. The grant is regarded as extending to a line running through the centre of the river, creek, &c. unless an intention to the contrary appears upon the face of the instrument. In the present case, the map made and recorded by the plaintiff constituted a part of the description of the premises in the conveyances of the lots abutting upon the piece of land in controversy ; and if it cannot be collected from the 'deeds in connection with the map that the plaintiff designed the space indicated on the map as a “ park,” for a street or passage way merely, the rule referred to will not apply, and the grants will only extend, to the exterior lines of the park adjoining the lots conveyed.

After a good deal of hesitation, I have come to the conclusion that when the plaintiff laid out and plotted his tract, which includes the premises in question, he intended that space of land 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; at least that such was his primary and leading object, and that when he afterwards conveyed the adjoining lots, the presumption is that his intention was the same. I admit that a part of his design was to afford access to the contiguous lots ; but that, it seems to me, was subordinate and incidental to the principal and leading object. He had the unquestionable right to devote it to such lawful purposes and uses as he chose. He declares, in substance, that he designed it as a “park.” No definition of that word will describe a street or passage way. One of Webster’s definitions of the word “park” is, “an enclosed' place in cities, for exercise or amusement.” His other definitions of the same word are inapplicable. It is the usual, and so far as I know, the universal practice, when the idea ‘of a street, alley or lane is intended in the description of the premises in a conveyance, for 'the grantor to employ those words. But here, the word used fails entirely to convey any such idea. These premises are in no sense a public street, as there is but one entrance, which is at its intersection with Jones street at the east end, and does not terminate at the west end, or communicate elsewhere with any other street or other passage way. It is what is called a cul de sac, like "Jauncey Court which leads from Wall street in the city of New York. I cannot believe it was intended for a mere lane or alley for passage, although that is possible. I conclude that was not, in fact, the intention, for the reason that the plaintiff has nowhere so expressed it, but on the contrary, has expressed an entirely different intention. He has declared it to be a park, and has omitted to give it any other designation. It is much wider than we would naturally suppose he would dedicate for the mere purpose of a lane or alley. It is wider than any of the lots laid down on the map. I admit the size or width is of little or no importance in determining whether it was designed for what the plaintiff declared it — a park ; but in examining whether it was intended as a mere passage the fact of its unusual width for such purpose has a legitimate bearing on the question. Suppose it had been a piece of ground ten rods square, I' apprehend no one would contend that the plaintiff’s title would pass by a grant of the adjoining lots ; and yet every consideration in favor of the application of the rule before stated would apply to the case supposed. We know that in our cities, parks are public and private, large and small. The size has almost nothing to do with the question whether a park or not. There are parks in the city of New York much smaller than the one in question ; for example, those in Park avenue.

We are to inquire for the plaintiff’s intention at the time of the allotment of his tract. It is said that this was not a park because not enclosed. Nothing was enclosed at the time of the allotment, and the question is, did the plaintiff intend to enclose it, if that was essential to make it a park ?

If it was essential, we should intend that his purpose was that it should in due time be enclosed. There is another consideration equally potent with any of those stated. Suppose the plaintiff, after he had made the allotment and recorded the map, had conveyed lot number 24 by the same description as used in the description of those which he did •convey, as stated in the case. That lot is bounded on the east by Jones street, and on the south by the premises in question. According to the theory of the defense the gran-, tee would take to the centre of the premises. And' suppose the plaintiff, at the same time or afterwards, should convey lot number 28, lying opposite number 24 and bounded on the east by Jones street, by a similar description except the number ; by the same theory, the grantee in the last conveyance would take to the same centre on the south side; so that all the other lots bounding on the premises in question would become completely shut out from any public street or highway. This, it seems to me, could never have been the intention, and cannot be the operation of the conveyances of the lots adjacent to the premises in question.

I have been somewhat embarrassed in the foregoing views by the case of Bissell v. these defendants, (supra.) I think, however, this case can be fairly distinguished from that. In the Bissell case the premises sought to be recovered were represented and designated on the map as Erie street, and as running through from Kent to Jones street. Mumford, under whom the plaintiff claimed, sold his lots adjoining the piece designated on the map as Erie street, by the numbers and sections according to the allotment and survey of the whole tract. The court of appeals held that Mumford’s grantees were estopped from denying that the piece of land in question was a street. That as it was named on the map and represented thereon as a street communicating or opening at both ends into public streets in the city of Rochester, and as the adjoining lots were conveyed as bounding on it as sold as a street, Mumford and his grantees were not at liberty to set up and allege that it was not a street. There is no similar estoppel in the present case.

[Monroe General Term, September 7, 1863.

If the foregoing conclusions are correct, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Ordered accordingly.

Welles, Johnson and J. C. Smith, Justices.]