104 N.Y.S. 1106 | N.Y. App. Div. | 1907
Lead Opinion
In this action tbe plaintiff seeks to enforce private easements of light, air and .access over lands belonging to defendant immediately in front of and abutting upon lands belonging to plaintiff, and from a judgment dismissing his complaint upon the merits the plaintiff appeals. The plaintiff owns'. four - lots of land, in tbe city-" of New York, which taken together contain one hundred feet on One Hundred and Third street-, extending hack one hundred feet nine inches .to the middle of the block, between One Hundred and Third and
It is not disputed that Avenue A was laid out as a street in 1807 by commissioners appointed under an act of the Legislature.
Much reliance is placed by the respondent upon Matter of Brook Avenue (40 App. Div. 519; affd. on opinion below, 161 N. Y. 622). While there are undoubtedly expressions in that opinion which, read alone, would seem to favor the respondent’s contention, the question herein presented was not involved, and consequently was not intended tó be decided. The controversy there was over the payment of an award for opening the aveniie; and all that was decided was that the owner of the abutting lots was entitled to no part of the award, because by the opening of the avenue he received all that his deed entitled him to, that is, that the avenue should be opened and kept open as a public street; in . this regard following Matter of One Hundred & Sixteenth Street (1 App. Div. 439) and City of Buffalo v. Pratt (131 N. Y. 293).
Other casps are cited to us as tending in one way or another to qualify or limit the general rule upon which the plaintiff’s case re ts. It is Unnecessary to discuss or distinguish them at length, as that has already been done by the Court of Appeals in Holloway v. Southmayd (139 N. Y. 390). It appears in this case that Avenue A was never opened 0r worked as a public street; and that after the making of the Cummins mortgage, and before its foreclosure,
Upon the undisputed facts the plaintiff was entitled to relief, and the judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the. event.-
Patterson, P. J., and Laughlin, J., concurred; McLaughlin ‘ and Houghton, LL, dissented.
See Laws of 18071 chap. 115.— [Rep.
Dissenting Opinion
This action was brought to procure a judgment establishing a private right of way over certain real estate of- the defendant, and
There is little or no dispute as to the material facts involved. In 1807 a street called Avenue A, running between One Hundredth and One Hundred and Sixth streets and parallel to and east of First avenue, was laid out on a map of the city'of New York, made by commissioners appointed under an act of the Legislature.
Thé plaintiff is the owner of a tract off land situate on the northwesterly corner of Avenue A and One Hundred and Third street, extending 300 feet westerly along One Hundred and Third street, and approximately 100 feet northerly along Avenue A to the center of the block. The defendant owns the westerly half of Avenue A adjoining the plaintiff’s premises. Both parties trace their title to a common grantor, one Cummins, who became the owner in I860.* In 1869 he mortgaged the property now owned by the plaintiff, describing it as .follows: “All those twelve certain lots, pieces or parcels of land situate, lying and being in the Twelfth Ward of the Cify of New York,'bounded and described as follows: Beginning at a point formed by the intersection of the westerly side of Avenue A and the northerly side of One Hundred and Third street; running thence westerly along the northerly side of One Hundred and Third street Three Hundred (300) feet; thence northerly and parallel with Avenue A One Hundred (100) feet Nine (9) inches- to the centre line of the block; thence easterly along the said centre line Three Hundred (300) feet to the westerly side of Avenue A; thence along the westerly side of Avenue A One Hundred (100) feet Nine* (9) inches to the place of beginning.” This was the same description by which the property was conveyed to
In Underwood v. Stuyvesant (19. Johns. 181) the ..owner ■ of a
In Hopkinson v. McKnight (31 N. J. L. 422) it was held that a conveyance of a lot which was bounded upon an “ alley and street proposed to be laid out,” but which was never opened and used as a street, did not amount to the grant of an easement or right of way.
In Matter of Brook Avenue (supra) a grantor had conveyed property which, as here, fronted on an existing public street. On one side it was boúnded by the line of “ Brook Avenue as laid out by the department of public parks of the city of New York.” Brook avenue, like Avenue A, was never opened or used as a public street and it was held that the grantee acquired no private easement therein.
All of the plaintiff’s property has a frontage on One Hundred and Third street. Avenue A lias never been used, either as a public or private street. There is nothing to indicate that Oummins, in his mortgage, or any of the subsequent grantors of the lots now owned by the plaintiff, intended the grantees should have a right to any present use of the land included within the bed of Avenue A ór any other or further easement, except that which might accrue, to them if such*avenue should be opened as a public street; a contrary -intention, it seems to- me, necessarily must be inferred from the language used by Oummins in the mortgage and in the respective deeds of conveyance which thereafter followed. Iii considering the intention of the parties and the inferences to be drawn from the mortgage made' by Oummins, the history of the conveyances of the tract in question is important. All of the deeds of the property, previous to that which put the title in Cummins, conveyed the bed of Avenue A by the following words : “ Together with all
This conclusion is strengthened by the fact that the reservation of the fee in the street, if it were to be burdened with a private easement after the street had been stricken" from the city map, would have amounted to little or nothing so far as preserving property rights is concerned. It is also strengthened by the fact that the alleged right had never been asserted nor sought to be used, and that no claim was made by reason of it until nearly thirty years after the foreclosure of the Cummins mortgage, and a portion óf that time at .least the same had been occupied in open and notorious hostility to such claim.
I am of the opinion that the judgment appealed from should be affirmed, with costs.
Houghton, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
See Laws of 1807, chap. 115.— [Rep.