134 N.Y. 58 | NY | 1892
Ejectment for a strip of land forming part of the public highway. In 1856, Flagler owned a farm adjoining the west side of the public highway leading from Newburgh to Marlborough. Weed owned the farm directly opposite and adjoining the east side of the same highway. Each owned to the center of the highway. The general course of the highway was straight, but there being a hill on the west, or Flagler's side, the highway curved around the base of the hill and thus deviated from a straight line. Weed lived on the east, and desiring to enlarge his front yard and straighten and improve the highway, purchased the strip of Flagler sufficient to enable him to do so. The deed from Flagler to Weed conveyed the strip in question to Weed and all Flagler's right, title and interest in the highway. The habendum clause in the deed recited that the grantee was to hold the granted strip "for the uses and purposes of a public road or highway, *60 and for no other use or purpose whatever," and then this reservation followed: "The said parties of the first part reserving the same privileges on said public road or highway as they now have on the highway as at present located in front of the lands owned by said party of the first part."
Upon receiving the conveyance, Weed straightened the highway, enlarged his own door-yard by moving his front fence westerly, graded down the hill upon the westerly side of the highway and built a retaining wall upwards of 400 feet long, and about three feet high, against or very near to Flagler's higher land and within the strip conveyed by the deed. Since 1856 the strip has been used as a highway, and Weed and his grantees, the respondent, have, as occasion required, repaired the wall. By subsequent conveyances, the plaintiff acquired Weed's title, and the defendants Flagler's. In 1879, the defendants built a house upon their premises upon the west of the highway and wall, and opened and have since used a passageway from the highway to their house, and also opened and used another like passageway at another point through the wall, and before the commencement of this action took possession of the entire wall to the exclusion of the plaintiff and the denial of his right to maintain it.
The trial court found that the premises described in the complaint were dedicated and accepted as a highway, and have formed part of it for over twenty years; that the defendants are abutting owners on said highway and have the right to the free and uninterrupted use of it as such. Judgment, however, was directed for the plaintiff for the possession of the strip in question including the wall, reserving to the defendants three specified passageways of thirteen feet in width through the same, and enjoining them from interfering with the wall.
I think the judgment should be reversed. The recital in the habendum clause that the strip was conveyed for no other purpose than a highway may not of itself restrict the full title granted, but this recital in connection with the reservation immediately following, and the grantee's subsequent *61
alteration of the highway, and dedication of the strip to the public as a highway, show what was meant by the reservation. "A reservation is never of any part of the estate itself, but of something issuing out of it, as, for instance, rent, or some right to be exercised in relation to the estate." (Craig v.Wells,
To enable the plaintiff to maintain ejectment for any part of the highway to which he has the title subject to the public easement, the defendants must have taken exclusive possession of it, or imposed upon it some burden inconsistent with the public easement. (Reformed Church v. Schoolcraft,
If the plaintiff chose to remove the wall and grade the highway up to the exact boundary line, a different question would be presented. But the judgment awards him the land upon which the wall stands, and restrains the defendants from interfering with the wall, thus nullifying the reservation in the defendants' favor and thus imposing a burden upon the land, which, under the terms of the grant, they have the right to remove or to lessen by any reasonably practicable means. As they have done no more than was consistent with the enjoyment of their privileges, their possession of the wall was not wrongful.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except PARKER, J., dissenting, and BROWN, J., not sitting.
Judgment reversed.