67 A.D. 573 | N.Y. App. Div. | 1902
Lead Opinion
It is evident that the rights of' the parties in the present action are to be determined by a construction of the deed from Gouverneur Morris to John Rushby in 1848, in connection with, the map filed at the time when the deed was executed and the - circumstances surrounding the transaction. This deed bounds these premises along the lines of the respective streets by giving distances surrounding the property conveyed. It has been assumed for- many years-to be settled law that such a description bounding upon a,street or highway laid out upon a map carried with it title to the land to the center of the street. The reason for such rule was found in the fact that ordinarily, in conveyances of such a character, no purpose would be served by reserving to the grantor the title embraced within the street opposite to the premises conveyed, as it wduld not be available for any purpose of use independent of an easement for passage by the public; and for this, among other reasons, a presumption was indulged that the conveyance carried title to the center of the street, even though such part was not contained within the metes and bounds of the conveyance. (White's Bank of Buffalo v. Nichols, 64 N. Y. 65.) In all cases, however, the question as to. whether the. title to the street passes is one of intent of the parties to the conveyance. It was said in the case above cited, “ Whether a grant of lands bounded by a street, highway or running stream extends to the center of such street, highway or stream, or is limited to the exterior line or margin of the same, depends
In Mott v. Mott (68 N. Y. 246) the rule of the above case was reaffirmed. It was there said that “ An intent to exclude the highway or bed of the stream will not be presumed, but must appear from the terms of the deed as interpreted and illustrated by surrounding circumstances.” And further, “ It depends upon the intent of the parties to be gathered from the description of the premises read in connection with the other parts of the deed, and by reference to the situation of the lands and the condition and relation -of the parties to those and other lands in the vicinity, whether the grant extends to the center of the road or stream. This is the recognized rule of interpretation, and it is a question of interpreta^ tion and intent.” In that case the subject-matter presented was whether a conveyance adjoining a lane was held to be included within a description bounding thereon, and also whether a certain •other private road, upon which other lands involved in the action were bounded, conveyed to the center of the same; and it was held that, as the lane was a private way of which use could be made by the grantor, the rule was different as applicable to a public street, and an intent was deduced from the instrument and surrounding ■circumstances to exclude it from the operation of the grant. As to "the. highway, the deed, although bounding thereon, assumed to reserve an easement in the roadway to the grantee in the deed, and it was held that reserving such rights evidenced an intent on the part of the grantor to retain title to the road, subject to an easement of the grantee therein.
The question again arose in Muldoon v. Deline (135 N. Y. 150). In that case parol evidence was offered of conversations.and negotiations between the parties, together with other circumstances, for. the
We think it has been generally understood that these and other authorities bearing upon this question had established the rule that, in a conveyance which bounded by, upon or along a highway or stream, or where other equivalent phrases were used, it evidenced, an intent from which was raised the presumption that the grant extended to the center of the highway or stream, and that in the; absence of other language contained in the deed qualifying or limiting it, such presumption became conclusive and precluded ant inquiry by evidence aliunde of the conveyance for the purpose of; showing a different intention.
This rule seems, however, to have received recent modification. In Graham v. Stern (168 N. Y. 517) the question arose respecting the grant of lands- bounded by and upon a city street. The presumption that such a description would carry the title to tlie -center of the street was recognized as laid down in the authorities we have cited. But it was also held that, as the original grant came from the city at the time when the street was in existence, such presumption was offset by the fact that the city, was charged with the duty, to keep and maintain the street for the passage of the public, and! that such interest and duty was inconsistent with an intent to convey title thereto, and that, therefore, no title to the street passed to-the grantee in the.deed. The court in its opinion discussed the.rule of interpretation as applied to such grant under ordinary circumstances between individuals, saying: “ The general rule that a conveyance of land bounded by or upon a street carries the fee to the
As we understand this statement of the law, it means to announce a rule that where the presumption of an intent to convey to the center of the street or stream is founded upon words, out of which the intent to convey to the center is presumed, as by, or upon, or along, or other equivalent phrases, it is not conclusive as such, but may be inquired into by any evidence, parol or otherwise, which tends to establish the existence of a different intent. In other words, it is no longer the rule that the intent is to be found in the language of the instrument associated with the circumstances and surroundings existing at the time of the grant, but any evidence competent as indicative of an intent to limit the operation of the grant may be proven. And such seems to be the construction placed by this case upon the authorities to which we have called attention.
Independently of the question as to whether our construction of the Graham case be correct or not, we think that sufficient appears in this deed, within the rule of all the authorities, to show an ambiguity in the description of the premises intended to be conveyed thereby. The courses and distances given in the deed corre spond with the measurement of lot 142 as laid out upon the map at the time when it was filed and the deed executed. The deed itself purports to convey an acre of land, more or less. The area of lot 142, excluding Spring place, is sixty square feet less than an acre; but including fifty feet of Spring place and' twenty-five feet of Franklin avenue, half its width, the area is one and one-half acres. The excess is, therefore, nearly fifty pér cent, and it is scarcely possible to ascribe an intent to convey fifty per cent more of land than the instrument expresses an intention to convey. Where a specific quantity of land is located by precise measurements, such measurements may be laid hold of as evidencing the intent of ■ the parties, and will be controlling of the center of the street as a monument, when .it appears that the quantity of the land within such boundary evidently answers to the intention of -the parties. (Higinbotham
If the deed to Rushby did not operate to convey title to the center of the street, then the deed from Morris to the trustees of Morrisania operated to convey a good title, as Morris was then possessed’ of it. Consequently, the narrowing of the street by municipal! authority did not cause the title to revert to the owners of lot 142,. as the owners of that lot never acquired title to it. It was still held; subject to the right of the city or the trustees therein, and could be-subsequently used for street purposes by the proper authorities. In any event, it is of no consequence to the plaintiff in the present action, for as against the city he has no title, right or interest, as none of his grantors ever had title to the twenty-foot strip in Spring place.
If these views be correct, it follows that the judgment should be affirmed, with costs.
Van Brunt, P, J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
I do not concur in the proposition that the deed from Morris to. Rushby, executed and delivered in 1848, is to be affected by a deed: made by Morris to the board of trustees of the town of Morrisania, executed in 1864, to which the grantee in the deed of 1848 was not a party, and of which, so far as appears, he had no knowledge. That this deed from Morris to Rushby would, standing alone, convey to the grantee the fee of the abutting streets seems to be conceded in the prevailing opinion, and while we may concede that the surrounding circumstances ' or the cotemporaneous acts of the parties; might rebut the inference that the property conveyed extended to
The effect of a description relating to property upon this map and the title to Spring place was before the Superior Court, of the -city of New York in the case of Pollock v. Morris (51 N. Y. Super. Ct. 112). The deed there under consideration conveyed a lot diagonally across Spring place from the lot in question, and the description was almost identical with the description- of the lot now under consideration, and it was held that under this description onelialf of Spring place was included; that the grantee took to the ■center of Spring place, and that no seizin, right, interest or reversion therein remained in Morris, and this decision was affirmed on ¡appeal to the Court of Appeals. (See 105 N. Y. 676.)
' It does not appear-that Spring place was. accepted - by the public authorities as a public street before the conveyance from Morris to ■
Judgment affirmed, with costs.