41 N.Y.S. 108 | N.Y. App. Div. | 1896
We agree that this judgment cannot be supported upon the ground that this lane was a public way, as there is no proof which would warrant such a finding, and for the further reason that such question was eliminated by the concession made upon the trial, that such ground would not be relied upon. It may not, therefore, be now considered. We also agree that no right has been acquired by the plaintiff in the land by user alone or by express grant, or by virtue of convenience or necessity, for when plaintiff acquired title there was no obstacle which prevented his reaching any part of his premises from the public highway, which ran in front and upon which he bounded. This brings us to the only remaining question in the case, which is, did a right of way arise by implication as an appurtenance to the premises under the grant made by Purdy to Patrick Fahey, through whom plaintiff makes title ? It may be observed that the question is somewhat close, and some authority exists warranting the claim that a right of way in the lane is not in a technical sense an appurtenance to the premises conveyed. However this may be, we think the question is one that must be governed by the intent of the parties, to be extracted from the grant and its language and the circumstances and conditions which existed at the time when the grant was made. It is undisputed that the lane was established by Purdy as a private way for himself and certain of his grantees upwards of fifty years ago, and that it has since been continuously used by these and other persons prior to the time when
In Parsons v. Johnson (68 N. Y. 62), relied upon by the appellant, the way was laid out by tenants in common. One of the tenants subsequently mortgaged the land lying on the east of the way, “ with appurtenances.” The mortgage gave the western boundary of the premises on a line coincident with the east line of the way; the way was not mentioned or referred to in any manner and it was not -essential for access tot the mortgaged premises.. The. court held that no easement passed in the way under the mortgage or judgment of foreciosure thereunder ; that the use of the word “ appurtenances ” did not pass it, 'and that defendant having become possessed of the dominant and seiwient tenements had the right to close the way.
It is at once- seen that a radical difference exists between the grant in that case and the present one. There no reference was made to the way. Here the way is asserted as existing, it is practically located, and the boundary-of the premises is thereon. This distinction is clearly pointed out in the discussion: Judge Earl, in dis
In Franklin Insurance Co. v. Cousens (127 Mass. 258) a mortgagor had laid out on his premises a private way running from one-public street to another. The mortgage made no reference to the way, but the premises bounded on its exterior line. Subsequently the mortgagor executed another mortgage to a third party of other premises including therein, by metes and bounds, the private way. The first mortgage was recorded before the second mortgage was given. It was held that the purchaser acquired an 'easement in the private Way, the court saying: “ The only question in this case is whether the plaintiff took by implication a right of way over the. thirty-fóot passageway, and we are of opinion that it did. The rule is that when a grantor conveys land bounded on a street or way over his other land, he and those claiming under him are estopped to deny the existence of such street "or way.” This case may carry the doctrine of implied grant beyond the rule laid down in the courts of this State. But it is authority for the rule announced in the Parsons Case (supra), that a reference to an existing way in the grant carries with it an easement in the way in the grantee.
We think the same question is decided-in Hutteneir v. Albro (18 N. Y. 48). It is true that that case presented an element of necessity.
In all of the cases where' the question has arisen in this State, which have fallen under our observation, there ' has been present some condition beyond the boundary of the land conveyed by reference to- the. way. But the trend of authority seems to be that, where the. way exists and the boundary is made • thereon by reference to the existing way, such déscription indicates ah intent that the way shall remain open as appurtenant to the premises conveyed. As was said by Judge Strong in Huttemeier v. Albro (supra): “ If the alley was to be abandoned and no longer exist, it would hardly be made a part of the description of the land, to aid in identifying it, not merely at the time of giving the deed but in future.” A like rule is adopted in Michigan. (Smith v. Lock, 18 Mich. 56.) This rulo is in harmony with that laid down. by Mr. Justice Storey in United States v. Appleton (1 Sumn. 492), that every grant of a .thing necessarily imparts a grant of it as it actually exists unless it be otherwise provided. And this rule was adopted by the Court of Appeals in Holloway v. Southmayd (139 N. Y. 390-407), the court adding: “ It is the better rule to hold that, to exclude a grantee from the perpetual beneficial' use of the open way in front of the premises granted to him, the language of -the deed should' clearly express such an intention.”
If we .are correct, it follows that the judgment should be affirmed, with costs.
'All concurred.
Judgment affirmed, with costs.