204 A.D. 200 | N.Y. App. Div. | 1923
The interpretation of the deed “ is not to be determined, under the circumstances, solely, by the language of the description. Reference may be had to what the facts evidence as the intention of the parties.” (Mott v. Eno, 181 N. Y. 346, 373.) The words “ the fee * * * of all the streets and ways,” in the clause of the deed, were not used in their ordinary meaning, or as the equivalent of “ the fee of all the lands under the streets.” They are so qualified by the other words used as to disclose plainly that the “ use of said streets,” not the “ fee ” in the lands under the proposed streets was intended. The expression is: “ Together with the fee, in so far as we have the right so to convey the same, of all the streets and ways shown on said plan, in common with the
We do not approve of the conclusion that “ Unless restrained by the court such continued trespass, continuing for twenty years adversely, will entitle the defendant, its successors and assigns, as a matter of law, to continue the fence permanently and so to deprive the plaintiffs of rights, property and easements." An adverse possession, under which prescriptive title may ripen, involves an assertion of a right such as exposes the party to an action, unless he has a grant, for it is the fact of his being thus exposed, and the neglect of the opposite party to bring suit, which is seized upon as the ground for presuming a grant in favor of long possession
Under the facts disclosed here, the plaintiffs cannot suffer any irreparable loss by reason of the maintenance of this fence. Plaintiffs are within 180 feet of the Van Antwerp road; they are 880 feet from Mercer street. The southerly end of Mercer street terminates at the Mohawk Golf Club grounds and the northerly end at the private land of Charles Benedict. There is no highway to be reached from Mercer street and no present likelihood that a highway will be constructed connecting with it. The Mohawk Golf Club grounds extend the whole length of its easterly side. The use of Isleboro street, easterly from plaintiffs’ premises, and of Mercer street, would add nothing under present conditions to the value of plaintiffs’ property. On the other hand, defendant owns its property and should be allowed to use it. A court of equity is not required to make an inequitable decree. The judgment will adequately protect plaintiffs’ rights against prescriptive rights. (McCann v. Chasm Power Co., 211 N. Y. 301, 305, 306; O’Reilly v. New York Elevated R. R. Co., 148 id. 347, 353.)
The defendant has not appealed. The plaintiffs have limited their appeal to that part of the judgment, (1) which refuses the injunction; (2) which refuses costs. While in both these respects a right result has been reached, these results rest upon errors of fact and law which are necessarily involved in the appeal. The judgment should, therefore, be reversed, without costs, and judgment should be directed in accordance with the stipulated facts and this opinion.
H. T. Kellogg, Acting P. J., Hinman and Hasbbouck, JJ., concur; Kiley, J., concurs in the result.