Blackman v. Riley

• Decision Date: 06 June 1893
• Parties: BLACKMAN v. RILEY.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 318

34 N.E. 214

BLACKMAN

v.RILEY.

Court of Appeals of New York.

June 6, 1893.

Appeal from supreme court, general term, first department.

Action by John E. Blackman against Charles Riley to recover possession of land. From a judgment of the general term affirming a judgment for defendant on the report of a referee, (18 N. Y. Supp. 476,) plaintiff appeals. Affirmed.

George Hoadly, for appellant.

Henry H. Anderson, for respondent.

PECKHAM, J.

In 1759 Cornelius Cosine, the elder, was the owner of a farm of about 200 acres, the northern and southern boundaries of which were nearly, but not quite, coincident with the lines of what are now Fifty-Seventh and Fifty-Third streets, in the city of New York. The North river formed the western boundary, while the eastern was formed by what was termed in the descriptions of the day the ‘common lands' of New York. The Bloomingdale road, running about north and south, cut through the farm, leaving land on each side of it. It ran a little distance west of and parallel with the line now forming Seventh avenue. If a full recital were given of all the facts relating to the disposal of the farm thus mentioned, and out of which has grown the present controversy, we should be taken back to Colonial times, when, in the year above mentioned, (1759,) the elder Cosine is alleged to have deeded this farm to his two sons, Cornelius, Jr., and Balm Johnson, Cosine, and thereby excluded three other living children from any benefit arising from his ownership of such farm. We do not intend to enter upon either a recital of the facts surrounding and following the claim made under this alleged deed, or to make a statement of the many legal questions which, in one aspect, abound in this case. We refrain from so doing because, in our opinion, the case can and should be decided for the defendant upon a question of fact, and, therefore, a discussion of the interesting legal propositions becomes unnecessary. This question of fact is based upon a deed to one Jacob Harsen and wife from the widow and heirs of the above-mentioned Balm Johnson (osine, one of the two grantees in the alleged deed from the elder Cosine, made in 1759. This deed to the Harsens was executed in 1809, and it may be assumed all questions arising prior to that date should be decided in favor of the plaintiff. The deed of 1809 conveyed to the Harsens the southern portion of the old Cosine farm, extending from the common lands of New York on the east to the North river on the west, and through it ran the Bloomingdale road. The portion thus conveyed consisted of all the land lying on both sides of the road, between the northern and southern boundaries of such portion. The deed describes, by two separate descriptions, the lands conveyed, one description being used for the land on the west and the other for the land on the east side of the road. The land on the west was first described, and then the deed continues, ‘and the other of the said two lots, pieces, or parcels of land begins at a point on the east side of the Bloomingdale road aforesaid, * * * and runs from thence north * * * along the east side of said road’ a certain number of feet, and the description is continued until the line is brought to the place of beginning. It is argued by the defendant that the deed in fact conveys the fee in the road. He claims that the parties to it were then engaged in carrying out a compromise in regard to the title to this farm, and that it was clearly the intention of the grantors to convey to the grantees all the interest which the former had in any portion of the farm contained within the limits of the description, and that there could have been and was no intention to reserve from such conveyance any interest in the land forming the bed of the road which ran through this portion of the farm. It is difficult to conceive of any reason for consciously reserving or failing to convey the roadbed of this road, subject to the public easement. We cannot think it was ever really intended, yet, nevertheless, we are disposed to hold that, by the language actually used, the grantors in fact failed to convey any portion of the land forming the bed of the road in question.

The plaintiff alleges that the premises in question formed a part of the southern portion of the Cosine farm, and also a part of the bed of the Bloomingdale road, at the date of the deed in 1809, and that the premises did not pass to Jacob Harsen and wife by virtue of that deed. The plaintiff claims, by various mesne conveyances, a certain portion of the title which he alleges was in the widow and heirs of Balm Johnson Cosine at the time of the execution of the deed by them to the Harsens. The respondent, on the other hand, claims title under several conveyances which passed to him all the title which the Harsens took from the widow and heirs as stated. It is further alleged, on the part of the defendant, that the premises in question did pass by the deed of 1809, and that such premises formed at that time no part of the old Bloomingdale road. The defendant sets up many other defenses to the claim of the plaintiff, but if the plaintiff has failed to prove that the land in controversy formed a part of the Bloomingdale road, and that, therefore, it did not pass to Jacob Harsen and wife by virtue of the deed to them in 1809, he has, in that event, failed to prove title to the locus in quo. He maintains that he has made such proof, while it is claimed on the part of the defendant that he has not. This is the question of fact arising out of the execution and delivery of the deed of 1809. We think the plaintiff has failed to show that the premises did form a part of the roadbed at the time when the deed was executed. As the action is one in ejectment, the burden is upon the plaintiff to show that he has title to the premises, and he must recover, if at all, upon the strength of that title, and not by reason of any weakness in that of his adversary. The question whether the premises formed part of the roadbed in 1809 depends upon the width of the road at that time. The western boundary thereof is not disputed, and it always remained fixed and unaltered. If, in 1809, the road was actually of the width of four rods, then these premises formed part thereof; and if the road at that time were only of the width of two rods, they did not form part of such road, and they passed to the Harsens under the deed to them. The referee finds as a fact that the road, at the time of the death of the elder Cosine, was only two rods wide at the point in question. We think there is evidence upon which to base this finding. He also finds that, upon maps made in 1820, the road appeared to be of the width of four rods at this point, and that the widening of the road prior to 1820 was exclusively from the eastern side of the road. He does not find when the widening actually took place, nor does he, in terms, find what was the width in 1809, and the evidence is not of such a nature as to compel a finding that a widening took place prior to 1809. Indeed, the plaintiff claims that the whole matter of any widening of the road is a myth, and that the width was never less than four rods in law, whatever may have been the fact as to the width which was kept in repair and actually used. But if the space really occupied by and used as a road in 1809 were but two rods in width, we think that a description in a deed conveying land bounded by the road should, in the absence of some words indicating the contrary, be construed as referring to the actual road as worked, kept in repair, and used, and not to an abstract legal line, invisible, unused, and practically unknown. The road was laid out in 1703, (or possibly,) re-established under the act of that year,) a very early period in the history of the laying out of roads under statutory authority in this state. Bradford's Ed. New York Colony Laws, 1691-1724, p. 52. The act provided for laying out the road four rods wide, and commissioners to carry the act into effect were therein appointed. There was not, however, any provision made for the payment to the owners for the land to be taken for the highway, nor was there any provision for a compulsory taking of the land for highway purposes. The...