38 N.Y.S. 417 | N.Y. App. Div. | 1896
One Samuel Wood, at the time of his decease, was seized and possessed of a tract of land at Woodshurgh, which he devised to his executors and trustees upon certain trusts and also empowered his exeeutors to sell and convey the same. On November 7, 1885, the executors and trustees of Samuel Wood conveyed to the plaintiff a tract of land fronting on the Woodsbnrgh boulevard and Franklin avenue. This conveyance ' cut off from access to the boulevard and Franklin, avenue a tract of which the trustees remained the owners, lying in the rear of the tract conveyed to the plaintiff. For this reason the deed to the plaintiff contained a provision authorizing the grantors to extend another street, called Neptune avenue, through the premises conveyed, upon conveying to the grantee an equivalent amount of equally desirable land. The rear plot, which remained in the , ownership and possession of the trustees, is called the “ 20-acre lot.” In July, 1886, the plaintiff and the trustees of Samuel Wood executed the following agreement:
“ This Agreement made by and between Edward T. Schenck and Alfred L. Simonson, as surviving Executors of and Trustees under the Will of Samuel Wood, deceased, parties of the first part, and Benjamin E. Valentine, party of the second part:
“ Whereas, said parties are owners of real estate at Woódsbiirgh, in the Town of Hempstead, L. I., which is adapted for villa sites, but which has not yet been suitably opened by roads and streets; and
“ Whereas, the parties are desirous of making such agreement in relation thereto as shall be advantageous to the premises of both;
“Now, therefore, the parties, in consideration of their mutual undertakings, agree as follows :
“ 1. Said parties of the first part agree that the highway known as Franklin avenue may be extended on the northerly line thereof where it passes through their premises, by increasing its width to a uniform distance of 60 feet, as adopted for other streets on the Wood estate.
“ 2. Said Valentine agrees that he will at his own expense build a fence of cedar along said northerly line opposite his dwelling like the fenee on the southerly side of said Franklin avenue. '
“ 3. Said parties of the first part agree that they will dedicate*237 and that said Valentine may open for the purposes of a public highway, having a width of 60 feet — a road through and along the northerly line (or at a distance of 1 foot therefrom), of their lot adjoining premises of said Valentine, known as the 20-acre lot of the Wood estate, and designated on the annexed diagram by the letter A. This dedication and opening is to be without expense to the parties' of the first part, except for such surveyor’s fees and other disbursements as may be reasonably required for fixing the boundaries, and for maps, etc.
“4. Said Valentine agrees that the parties of the first part shall have a roadway and right to open a road 60 feet in width from the westerly terminus of said last-named road over the premises of said Valentine, designated on the annexed diagram by the letter B, substantially as indicated on said diagram, to connect the said road from the 20-acre lot of the Wood estate with said Franklin avenue or Sixth street, this to be taken in lieu of and as a substitute for the provision in deed of the parties dated November 7th, 1885, permitting the opening of Neptune avenue by the parties of the first part through land of said Valentine. And as an equivalent for the land of said Valentine so surrendered to the parties of the first ¡Dart for said read, the parties of the first part agree to convey to the said Valentine that portion (of Block 41, as shown on the map of Woods-burgh, filed in the Queens Co. Clerk’s Office),. lying between Boulevard, Sixth street and Franklin avenue, which is designated on the annexed diagram by the letter C.
“ 5. Each of the parties hereto is to have the full and unrestricted right and privilege of access to, and uses of, all and every of said proposed roads and ways and all parts thereof for access to and egress from any and all of their own lands lying near the same, and for the use of their survivors or grantees of any of the said premises without waiting for the acceptance of the same as public highways by the town authorities.
“Witness our hands and seals this 26th day of July, 1886.”
After the execution of this agreement the plaintiff created and constructed a roadway through his own property from the “ 20-acre-lot ” to the highway (Franklin avenue) and also a roadway along the . whole north line of the “ 20-acre lot.” The evidence showed that the defendant, who seems to have gone into possession of the “ 20-acre
The only objection raised to that part of the judgment which en joins the defendant from trespassing on the plaintiff’s land, is that he should have been remitted .to his action at law. The answer to this is that the trespasses wer¿ repeated and continuous, and this is a good ground for equitable relief. (Broistedt v. South Side R. R. Co., 55 N. Y. 220.)
The serious attack, however, on this appeal is directed against the relief granted plaintiff as to his roadway or right of way over the “ 20-acre lot.” It is denied that at-the time of the commencement Of the action the plaintiff had any right whatever in the roadway. As many objections are raised against such right, it will be necessary to discuss them seriatim.
First, it is said that the agreement created no valid dedication of the roadway across the “ 20-acre lot.” This may be conceded, but it is immaterial to the disposition of the case. Granting • that the roadway never became a public highway, still the provisions of the agreement are express : “ Each of the parties hereto is to have the full and unrestricted right and privilege of access to, and uses of, all and every of said proposed roads and ways and all parts thereof for ■access to and egress from any and all of their own lands lying near the same, and for the use of their survivors or grantees of any of the said premises without waiting for the acceptance, of the same as public highways by the town authorities.” There is no force in the objection that this clause does not use the word “ grant ” of purport in express words to grant to the parties a right of way. It is settled law that easements may be created by agreements or covenants that one shall have a right or privileges in the estate of another, as well as by express grants. Such agreements are- grants in effect. . (Washb. on Ease. [4th ed.] 43; Stetson v. Curtis, 119 Mass. 266 ;. Wetmore v. Bruce, 118 N. Y. 319.)
I agree with the counsel for the defendant that the grant of the right of way was not a grant in gross, personal to the plaintiff, hut appurtenant to the lands he then owned. The agreement provides that the parties shall have the use of the proposed roads “ for access to and egfess from any and all of ■ their own lands lying near the same, and for the use of their survivors or grantees.” The general rule is that a grant in gross is never presumed when it can be fairly construed as appurtenant to some other estate (Washb. on Ease. [4th ed.] 45), and certainly the language of the agreement supports the latter construction. (Huntington v. Asher, 96 N. Y. 604.) .
" The plaintiff still holds the premises then owned by him. He has since purchased a tract on the north of the roadway across the “ 20-acre lot.” As owner of this last tract he may have no right to use the road, hut as owner of the first parcel he has the right to use it to go to the last purchase, or to aiiy other point where he may be able to obtain exit. It will he seen from the relative position of the property of the plaintiff and the “ 20-acre lot,” that the roadway over the “ 20-acre lot ” was. not necessary, nor could it be used as a means of obtaining access from plaintiff’s lot to the highway. This part of the roadway was a mere eul-de-sae. When, therefore, the plaintiff was granted a right of way over it, he was entitled to go over it to any highway or to any property which he might either have owned or have permission to go over. In other words, he was entitled to go over it to any point where he could find an exit, and a similar right to return, and the new purchase neither increased nor diminished his rights in this respect, nor did it increase the extent of his grant.
■ It is f urther claimed that the plaintiff has lost whatever right he had under this agreement with the trustees. The first ground' of this claim is that before the commencement- of this action he conveyed the lands he had first purchased to one Elizabeth H. Valen-tine, who in turn reconveyed to him, and that'in neither conveyance was there in terms any grant of the right of way. We think it entirely clear that the right of way passed to the grantee in those conveyances under the term “appurtenances,” as appurtenant t.o the land conveyed. This- is the general rule of law. (3 Washh, on
The judgment appealed from should be affirmed, with costs.
Brown, P. J., Bartlett and Hatch, JJ., concurred.
This controversy relates to what has been called, but what seems to me to be rather proved to be, a right of way claimed by plaintiff over lands which, defendant claims under a lease. The plaintiff’s claim is founded upon the act of the trustees under the will of Samuel Wood, the CQmmon source of title. Wood owned all the land in his lifetime, and made and filed a map, indicating that he contemplated opening certain streets or roads through his land.
.The trustees conveyed a part of the land owned by their-testator to plaintiff in 1885, bounding the same in part by a highway known as_ Brower Point road, which, on the map, was called Franklin avenue. The first point in the description in this conveyance is at a point on this road (Franklin avenue) "opposite the northerly line of JSTejitune avenue as now opened.” The parties to that grant plainly contemplated the opening of other roads or streets, for it contained a provision that if the grantors, within .two years after their grant, should decide to extend said Neptune avenue through the premises conveyed they should have the right to do so, by conveying to plaintiff an equivalent amount of other equally desirable land to compensate for that so taken for the said street, and complying with other terms. Thereafter, and within said two years, the grantors decided to extend
, We, therefore, reach the conclusion that one of the objects of this so-called road agreement was to give plaintiff and his grantees a right of way over the entire strips A and B at his will and pleasure, and especially so after his subsequent purchase along the strip A.
We may now obtain a clearer view of defendant’s contention that this road agreement was not within the powhr of the trustees under the will of their testator. I think it was within those powers for two reasons. In the first place, this road agreement was really a part of the original grant by the trustees to plaintiff. It was made in pursuance of a reservation contained in that grant, and the trustees had just as much right to exercise their option thus reserved and agree with plaintiff upon the terms thereof as they had to make the grant itself. The latter right is not controverted. In the next place, the trustees evidently deemed that this proposed road, when accepted by the public, and the private right of way thus in the meantime obtained by them over plaintiff’s land from the'junction of Neptune avenue and the old Brower Point road (Franklin avenue) to their lot lying along the strip A, was beneficial to the trust estate. We have no difficulty in seeing that it was beneficial to the estate. Certainly, the learned trial judge was justified in such a finding by the evidence before him, and that would seem to satisfy the requirements of the will.
We do not understand that defendant’s landlord or the defendant himself, each of whose rights are subsequent to the plaintiff’s,, claim
Judgment affirmed, with costs. Order affirmed, without costs. •