131 A.D. 564 | N.Y. App. Div. | 1909
The first difficulty arising in the disposition of this case is to determiné the ownership of the east half of the alley Between subdivision lots 15 and 16,, which rests largely on the- construction of the deed of part of lot 15 from Robinson to Pomeroy in 1849,
If the Pomeroy deed had bounded lot 15 on the west by the west line of lot 15 it would have no doubt conveyed title to the easterly half of the alley, under the authority of Hennessy v. Murdock (137 N. Y. 317). In that case the north line was “ from thence westerly along the north line of the lot ” (p. 322). The remark of Judge Maynard (at p. 323) that an examination of the map in question disclosed that the boundaries of the lot carried it. to the center of the lane, so far as it effected a conveyance of the fee, was argumentative only. The so-called Clark map attached to the appeal book in the Hennessy case shows an alley laid out precisely as in. this case, with no line in its center indicating a division of the fee between
The plaintiff is, therefore, not the owner of the fee of any part of the alley. But the legal effect of the original grants from Mr. Evans was to convey to the grantees and their successors in title the right of way over the alley as laid out, and the right conveyed can be defeated only by showing that it has been waived or lost in some of the ways known to the law. Among many authorities for this proposition may be cited the Ilennessy case already mentioned, the subdivision map in which compares very closely with the Evans map in this case. (Haight v. Littlefield, 147 N. Y. 338; Wiggins v. McCleary, 49 id. 346; Cox v. James, 45 id. 557.) In the last case the plaintiff’s description bounded on the south along the north line of the alley and the authority is peculiarly applicable as showing the right of the grantee in the Pomeroy deed and his successors under the same description. It may also be noted that in that case the defendant claimed the whole land embraced in the alley as her own under a subsequent conveyance from the party who originally mapped the tract, a situation not unlike that of the defendant here, arising under the deed from Evans to Young, already referred to.
Pomeroy, therefore, by his deed acquired an easement consisting of the right to use the whole width of the alley, but no interest in the fee thereof. There is nothing in subsequent deeds of lot 15 - altering this right. 'Any loss or modification of the right must.