71 N.Y.S. 293 | N.Y. Sup. Ct. | 1901
Three questions are presented in this case by the pleadings and proof. They are:
First. What rights were originally secured by the public or by the plaintiffs’ ancestor and source of title to have what was then known as Chestnut street (and now as South Crouse avenue) extended over defendant’s premises, and over and through the spot now occupied by its Hall of Sciences, which is the building and encroachment complained of herein?
Second. Have any rights originally secured by either the public or the plaintiffs’ ancestor been lost through abandonment, nonuser or otherwise?
Third. Does said building, under existing conditions, so encroach upon or impair any substantial or material right of the plaintiffs as will- lead a court of equity to cause its abatement and' removal?
I shall consider the material facts which I regard as established in this case in connection with and relating to each of said questions separately, rather than attempt to make one general statement thereof. .
The old Chestnut street, as so referred to, was laid out in straight lines across the premises purchased by defendant upon farm lot 201, extending only to the south line of said lot, and not at all upon or across the premises purchased of Mrs. Raynor. In the negotiations for the purchase by defendant of the lands hereinbefore referred to, and which included the subject of continuing Chestnut street across the lands of Mrs. Raynor, it was decided to change somewhat the lines of said street upon farm lot 201 and to provide for a course across said lot and across farm lots 186 and 187 upon curved lines. Accordingly, October 31, 1870, George E. Comstock, Thomas B. Fitch and Charles Andrews, acting as a committee -for the defendant, presented a peti
The negotiations between Smith, the defendant and the city and those between Mrs. Raynor, the defendant and the city were separate. There was no general contract or proceeding to which all were parties which provided for the new street through all of the premises conveyed by both parties. Each grantor dealt separately in his own behalf.
September 23, 1870, Mrs. Raynor made a contract with the defendant for the sale to it of the lands already referred to, and which consisted of about thirty-three acres, and which included the site of Chestnut street. The grantor agreed, upon payment being made, as in said contract provided, that she would convey “ a good indefeasible title to said premises to said party of the
On or about May 1, 1871, Mrs. Raynor executed to the University a conveyance for the purpose of carrying out said contract. Said conveyance was a warranty deed which purported to convey thirty-three and three hundred and seventy-two one-thousandths acres of land ineluding the site of said street and the , spot whereon now stands the building complained of. Immediately following the description of said premises therein is the following clause: “ Subject, however, to Chestnut Street through said premises as a public highway heretofore laid out and conveyed or dedicated as such highway by the party of the first part.” Otherwise there is no reference to said street and no exception or reservation covering the same. Mrs. Raynor executed a deed, dated October 30, 1870, to the city of Syracuse, whereby by warranty deed she conveyed a strip of land sixty-six feet wide across the premises, conveyed by her to the defendant and retained by her south thereof, to Oakwood and upon the new line of Chestnut street already referred to, “ To have and to hold the said strip or parcel of land so far as the same is part and parcel of said Farm Lots Nos. 186 and 187 unto the said party of the second part thereafter as and for a public street or highway and not otherwise,” and her covenant of warranty provided that it should apply only .so long as said premises should' “ continue to be a public street or highway.” Said deed was acknowledged the day after its date. A certificate of a county clerk to the official character of the person who took the acknowl
The second question relates to the effect of the deed as against the defendant. As already stated, on or about May 1, 1871, Mrs. Raynor had executed to the defendant a warranty deed of premises which included those conveyed by her to the city of Syracuse just referred to and which deed was put on record a couple of days later and thus several months before the deed to the city was recorded, and the query thus arises, what rights did the city of Syracuse acquire as against the University in the premises marked out for the street. There is no evidence from which I feel justified in finding that the deed to the city was delivered or accepted before the day of its record. As I have stated, there is no direct evidence of any person to the fact of its ever-being delivered to the city, and there is no proof of any act or conduct upon the party of the city or its officials which warrants the presumption that the deed had been delivered prior to the date in question. It has been argued by plaintiffs’ counsel that such presumption may be based upon the resolution of the common council adopted November 6, 1870, which was the resolution already referred to changing the course of Chestnut street across the Raynor property from a straight line to a curved one. That resolution contained the following: “ Whereas the owners of the land included in and affected by the said alteration and extension of Chestnut Street have dedicated the same to the City for the uses and purposes of such street, therefore Further Re
There is no other evidence upon which to base a finding of the delivery and acceptance of this deed at any date prior to the date of its record. I reach the conclusion therefore upon this question that Mrs. Raynor’s deed to the defendant was executed and delivered prior to the date when the deed to the city was delivered and that, therefore, the defendant took title to the fee of the proposed street rather than the city.
This conclusion, however, does not bar the other one that the city by its deed as against the defendant acquired the right to use and occupy the premises for a public street. I think that this result and effect was secured by the contract and deed between Mrs. Raynor and the University and that such right in
Assuming that the reservation in question applied to the deed to the city when executed, or that the defendant is estopped from denying the existence of such rights in favor of the city for a public street over the lands in question as would be naturally implied from the language used in the deed, it seems to me that the rights reserved against it would be satisfied by holding that the city under its deed from Mrs. Raynor and by virtue of the contract and deed between her and the defendant acquired a right of way across defendant’s premises for a public street and did not by its deed as against defendant acquire the title to the land.
Concededly during the thirty years which have elapsed since the conveyances referred to nothing has been done by the city or anyone else in the way of laying out, opening up, working or making suitable for travel this portion of the proposed street. It has never been used by the public or the plaintiffs or their grantor as a street, but has lain in common with the other lands owned by the defendant upon each side and subject to use by the latter in such way and to such extent as it desired. It has not been opened and worked within the meaning of the statutory provisions next hereinafter referred to. Horey v. Village of Haverstraw, 124 N. Y. 273; Excelsior Brick Co. v. Village of Haverstraw, 142 id. 146; Beckwith v. Whalen, 70 id. 430.
Under such circumstances, section 1 of chapter 311 of the Laws of 1861, carried into the present Highway Law as section 99 of chapter 568 of the Laws of 1890, applies. The first statute provides that “ Every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall not be opened and worked within the like period, shall cease to be a road for any purpose whatever,” etc. The latter section provides to substantially the same effect that “ Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public or laid out shall cease to be a highway,” etc.
An effort has been made by plaintiffs’ counsel to draw a distinction between highways in cities and in the country as governed by these statutes. The distinction, however, seems to be one not applicable to this case, if I am right in my conclusion that the city did not secure the fee to the highway. It is settled that where the fee is secured the statutes in question do not apply,
He has also suggested rather than urged very strenuously that this abandonment of a highway does not take effect until the commissioner of highways has filed a description of the abandoned highway as provided by the statute. This, however, does not seem to be the meaning of the language used, and no such construction has been placed upon it by the decisions called to my attention.
I have not considered so much of the alleged street or highway in question as lies north of the premises granted by plaintiffs’ ancestor, but the rule is laid down in the case of Horey v. Village of Haverstraw, supra, that, even if Chestnut street had been opened and worked as to that portion, it would cease, as to the part heretofore considered, to be a highway, if not opened and worked within the statutory time.
I conclude, therefore, upon this question, that the city of Syra-. cuse has lost its right to open and use for a public highway so much of the original proposed Chestnut street as was granted or dedicated by plaintiffs’ ancestor.
Plaintiffs’ counsel, however, has earnestly urged that Mrs. Ray-nor, and, through her, these plaintiffs, acquired a right to have Chestnut street reserved and kept open through the lands granted by them, which was independent of the right granted to the city, and which could not be lost or abandoned through any act or neglect upon the part of the city. He argues that, out of the negotiations and transactions between Mrs. Raynor and the University, as evidenced by the contract and deed referred to, a servitude or . easement was imposed upon the lands granted to the latter in i favor of those retained by Mrs. Raynor to have Chestnut street maintained as a passage-way, even if not a public street; that this right was created in favor of Mrs. Raynor, the grantor, and continues to exist in favor of her descendants, even though the city has lost its rights.
Counsel cites in behalf of his contention a large number of cases, and especially calls attention to, and seems to rely upon, that line of authorities which hold that where a grantor has conveyed lands, bounding them by a street, his grantee and their grantees have a right to insist that the strip of land described as
The authorities cited do not seem to me to sustain the rights claimed for plaintiffs in this case. Where a grantor conveys lands, in a proper and necessary manner referring to or bounding them by streets, it is well settled, as claimed by counsel, that the grantee has a right to have those streets kept open, even though the public has acquired no such right.
There is an implied covenant that there is such a street, which the grantor is prohibited and estopped from denying. White’s Bank of Buffalo v. Nichols, 64 N. Y. 65.
The grantee acquires the right of way as an appurtenance to the lands conveyed to him. Cox v. James, 45 N. Y. 557, 561.
It is to be assumed that the grantor has received the full value of the streets in the increased price of the lots sold upon the same. Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61, 66.
But I do not think that, in this ease, the defendant has taken its lands subject to any special right of way created in favor of its grantor, but that it took subject only to the right of the city to open and maintain a public street across itk premises. It is claimed that it wás very desirable for Mrs. Raynor that she should secure a street through the premises granted to defendant for the benefit of the lands lying south thereof, which she retained. Very likely that was so, and undoubtedly she might have secured to herself, and for the benefit of the lands retained by her, a right of way across defendant’s premises, which should exist even though the city did not acquire or should lose the right to lay out and open a public street. But, as it seems to me, she did not do this, but limited her rights to, and took her chances upon, the opening and maintenance by the city of a public street, and that she made defendant and its premises subject only to that
I reach the conclusion, therefore, upon this point, that the plaintiffs’ grantor, by her contract and deed with the defendant, limited her rights to the opening and maintenance of a public street by the city of Syracuse through the premises in question,, and did not reserve or secure to herself any other rights or privileges; that the limit of defendant’s obligation was to allow the
It may be suggested that the contract between Mrs. Raynor and defendant provided that the city of Syracuse might “ at any time ” continue and lay out Chestnut street, and that, therefore, the six years’ statute hereinbefore referred to would not apply. My opinion would be, in the first place, that this contract was merged and satisfied by the deeds to the University and to the city, and that these conveyances define and limit the rights of the parties.
In the second place, however, if this were not so, the provision “ at any time ” would be construed to mean a reasonable time, which has long since elapsed.
If the conclusions which I have reached as to the nature and loss of the rights originally acquired by the city of Syracuse and plaintiffs’ grantor, to have Chestnut street maintained across the lands conveyed by Mrs. Raynor to defendant, are correct, they lead to the still further conclusion that the plaintiffs cannot recover in this action.
If, however, it should be assumed that the right still exists in favor of plaintiffs to have a street maintained upon and across the premises so conveyed to the defendant by Mrs. Raynor upon the lines originally indicated, I am led to the consideration of the third and last question suggested at the beginning, whether the right to have said street so continued at said point would be of any such use or value to plaintiffs that the encroachment upon its line by defendant’s building in question causes an injury to plaintiffs, so special and important in its nature, that a court of equity will compel the abatement and removal of said building. The answer to this question involves the consideration of the conditions surrounding said strip of proposed street, and a statement and consideration of facts some of which have not as yet been referred to.
It is claimed by defendant that said section of the street, if opened, would start from plaintiffs’ premises upon the south and be blocked and terminated at the southerly line of lot 201, thus leading nowhere and being of no use or value to plaintiffs.
Chestnut street, as projected upon the altered lines fixed at
The lines of the proposed new or altered Chestnut street nearly coincided with the lines of the old Chestnut street at what is now the northerly line of University Place, and from that point curved and deflected towards the east as they were continued across the premises conveyed by Mrs. Raynor. Short and Sperry conveyed to the defendant lands lying upon the westerly side of and extending to the center of old Chestnut street, between University Place and the southerly line of lot 201. One Smith conveyed to defendant lands lying upon the easterly side of and extending to the easterly line of the proposed new Chestnut street.
There is nothing in the deed from Short and Sperry to the defendant, or in the contract for the sale of the lands covered thereby, which, as I understand it, is claimed to impose upon the defendant any obligation to keep open the new Chestnut street. The agreement between Smith and the defendant called upon the latter to open Chestnut street souih of farm lot 201, but neither said contract nor the deed executed in pursuance of it imposed upon defendant any obligation as to Chestnut street north of farm lot 201, outside of the fact that the descriptions referred to said street. The deed from Smith to the city of Syracuse of the easterly half of Chestnut street was executed and delivered sometime prior to December 14, 1870, and it recites a conveyance of the land in question “ so long as the same shall be used as a public highway or street and upon the express condition that said street shall be laid out and opened to the public on or before May 1, 1871.” And also that said party of the second part is “ to have and to hold the said premises so long as the same shall be used as a public highway or street.” As a matter of fact, the city of Syracuse has never entered upon, opened up or worked said street, and the same has never been used by the public as a highway. The claim was made by .plaintiffs, upon the trial, that at one time, under a franchise granted by the city, a street railway extended its line through part of said section of said street. This claim, however, was disputed, and I do not think that the plaintiffs have produced such a preponderance of evidence upon that question as entitles me to find said fact established. There has been a roadway leading from University Place southerly over a strip of this proposed street, but that has been a private way maintained. by and under the control of the defendant.
We thus have it that of the lands over which Chestnut .street would have to be continued from the southerly line of farm'lot
Neither does the building impair any substantial or beneficial right of the plaintiffs by obstructing any passage over the street which would be useful or beneficial to them. They have no abutting lands, ingress to and egress from which is stopped. They
In Adler v. Metropolitan El. R. Co., supra, page 180, the rule is quoted by Judge Andrews as elementary “ that a private individual cannot maintain an action to abate a public nuisance unless he is specially injured, nor will the court exert its equitable power of injunction in a case of a violation of a mere abstract right, unaccompanied with any substantial injury, present or apprehended.”
In Wakeman v. Wilbur, 147 N. Y. 657, 663, the court lays down the rule that, while a person who sustains a private and peculiar injury from the obstruction of a public highway may bring an action to abate the nuisance, the injury must be special and not merely nominal.
In Prince v. McCoy, 40 Iowa, 533, substantially the same question here under discussion was decided adversely to the plaintiff. He had brought an action to restrain the defendant from obstructing or inclosing a public street. The defendant, in answer to the petition, amongst other things, alleged that the streets in question in their then condition were not susceptible to use as such, and had not theretofore been used, and that, therefore, plaintiff would in no manner be injured in the free use and enjoyment of Ms property by their inclosure. The plaintiff’s demurrer to this answer was overruled, the court holding that if the streets had not been and could not be used for the purpose of their dedication, it was impossible to see in what respect plaintiff could be injured.
See, also, to same effect, in case of criminal proceedings, State of Iowa v. Shinkle, 40 Iowa, 131.
In Zabriskie v. Jersey City & B. R. Co., 13 N. J. Eq. 314, it was held that the court of equity would not abate what was alleged to be an obstruction in the highway where, under condi
In order that a plaintiff may succeed in an action of this kind he must show that he has suffered, or will suffer, substantial injury, for which he would be entitled to recover damages at law. A court of equity will intervene when the injury complained of is undeniably a nuisance and irreparable injury will ensue. Richeson v. Richeson, 8 Ill. App. 204. See, also, for general principles applicable to an action of this kind, Callanan v. Gilman, 107 N. Y. 360; Buchholz v. N. Y., L. E. & W. R. R. Co., 148 id. 640.
In accordance with these views, findings and judgment may be prepared, dismissing plaintiffs’ complaint, with costs.
Complaint dismissed, with costs.