Peters v. Carleton

| N.Y. Sup. Ct. | May 18, 1888

Van Brunt, P. J.

The judgment appealed from might be allowed to rest entirely upon the opinion of the learned judge who tried the case at the special term, such opinion being founded upon the cases of Fearing v. Irwin, 55 N. Y. 490, and King v. Mayor, 102 N. Y. 175, 6 N. E. Rep. 395; which cases seem to determine the question adversely to the appellant upon this appeal. The decisions are distinct and unambiguous, and plainly hold that, upon the filing of the map, each public thoroughfare not retained on said map ceased to be a highway, and became in law actually closed. The rights of the parties, therefore, became fixed at this time, and the mere fact that the abutting owner failed to occupy the property which had reverted to him in no way changed the rights which had thus accrued.

It is, however, claimed upon the part of the appellant that because in the deed of the lots by the abutting owner to the defendant there was inserted the clause, “and also all the piece now called the ‘ Bloomingdale Road,’ adjoining the above-granted premises to the center line of said road, subject to the uses thereof by the public until closed by public authority, ’’ some rights were reserved by the plaintiff because of a supposed recognition of the existence of the Bloomingdale road as a public thoroughfare. This position cannot be maintained, because it is evident that the sole purpose for which this clause was inserted was to convey the soil of that part of what had formerly been the Bloomingdale road, and was still called such, abutting upon the lots which were conveyed, as the descriptive language in the deed of the lots conveyed might perhaps have been claimed to exclude the land in the road from the grant. The fact that it is described as subject to the use thereof by the public, until closed by public authority, rendered this part of the road conveyed subject to no servitude, and indicated nothing except a recognition of present conditions, namely, that the road was so used by the public, whether with or without right, and was apparently intended to prevent the operation of the warranty contained in the deed, if such use rested upon any right or authority. This clause in the conveyance, therefore, was no recognition of any supposed rights, but was a mere conveyance of a portion of the premises included in the deed. There was no intention upon the part of the parties to the deed to in any way restrict the operation of the grant, or to recognize a condition of affairs which in law did not actually exist. For the reasons, therefore, stated in the opinion of the learned justice who tried this case below, the judgment appealed from should be affirmed, with costs.

Bartlett and Daniels, JJ., concur.