Hennessy v. Murdock

• Decision Date: 28 February 1893
• Citation: 33 N.E. 330,137 N.Y. 317
• Parties: HENNESSY v. MURDOCK.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 317

33 N.E. 330

HENNESSY

v.MURDOCK.

Court of Appeals of New York.

Feb. 28, 1893.

Appeal from supreme court, general term, fifth department.

Action by Catherine A. Hennessy against Archibald R. Murdock to recover for an alleged trespass. From a judgment of the general term (17 N. Y. Supp. 276) denying a motion for new trial on exceptions from the circuit court, Cayuga county, ordered to be heard at the general term in the first instance, plaintiff appeals. Reversed.

Teller & Hotchkiss, (John D. Teller, of counsel,) for appellant.

Lyon & Pierce, (L. A. Pierce, of counsel,) for respondent.

MAYNARD, J.

We think the plaintiff and defendant each has title to the fee of the land to the center of the lane in controversy, subject to an easement or common right of passage in the whole lane. Both titles have their source in James T. Smith, who in 1835 owned the entire square, bounded on four sides by public streets, which was then unimproved. He employed one Clark, a surveyor, to subdivide the plot into lots, numbered from 1 to 29, inclusive, and to make a map of the plot, as thus subdivided, which he filed in the county clerk's office. Upon this map there was a public lane or alley laid out, one rod in width, extending from Washington to Jefferson street, through nearly the center of the plot, and upon which all the lots abutted. Smith first conveyed the defendant's lot, No. 15, describing it as surveyed and marked on the map, making the southerly boundary a line running from Washington street westerly 130 2/3 feet, on an alley, and concluding with the following paragraph: ‘Together with the right of way of the alley aforesaid, which is forever to be kept open for the use and benefit of the lots to which it is adjacent; said alley being one rod in width, and extending from Washington to Jefferson streets, as laid down on the map before mentioned.’ The next year Smith conveyed No. 16, part of which is now owned by the plaintiff, in which reference is made to the lot as numbered and marked upon the map on file in the county clerk's office, and the northerly line is described as running from Washington street, ‘thence two hundred and three feet and one-third of a foot along an alley,’ etc. In all the intermediate conveyances of both parties, reference is made to this map in describing and locating the premises conveyed. In the defendant's deeds the lane or alley is always mentioned,-in one, in the exact words of the first conveyance by Smith; and in others, as bounded on the south side by a one-rod lane or alley, according to the map on file, or by a public lane.

Both parties, being in privity of title with Smith, are estopped by the recitals and descriptions in the conveyances from him, so far as they relate to the estate conveyed; and, under the repeated decisions of this court, it must be held that the plaintiff's deeds operate as a conveyance to her of the fee of the southerly half of the lane adjacent to her lot, with the right of passage, in common with the defendant, in the whole lane. Bissell v. Railroad Co., 23 N. Y. 61;Perrin v. Same, 36 N. Y. 120;In re Ladue, 118 N. Y. 220, 23 N. E. Rep. 465; Haberman v. Baker, 128 N. Y. 259, 28 N. E. Rep. 370; City of Buffalo v. Pratt, 131 N. Y. 298, 30 N. E. Rep. 233. The correctness of this conclusion is not disputed, except upon a single ground. The title to the whole of lot 16 vested in one William Hosmer in 1865. The lot was then vacant, and in 1881 he conveyed the part now owned by plaintiff to Maria L. Irish, describing it as a part of lot No. 16 on a map made by James T. Smith, and filed in the clerk's office of Cayuga county, April 24, 1835, with a specific boundary, beginning at the northeast corner of No. 16 on the west line of Washington street, and running from thence westerly, along the north line of the lot, two chains. The north line is the line along the lane; and it is insisted that this description did not include the fee of one half the lane, but that the title thereto remained in Hosmer, and that, as the plaintiff must rely upon the strength of her own title, she must fail in this action. But we cannot distinguish this case from the Bissell Case, and other kindred authorities upon this point. It was there held that, as between grantor and grantee, the conveyance of a lot bounded upon a street in a city carries the land to the center of the street, and that there is no distinction in this respect between the streets of a city and country highways, and that the rule applies although the conveyance contains no reference to the street by name, but the lot is described by the number, according to an allotment and survey made by the original proprietor, upon whose map this lot is represented as abutting upon a street, and the depth of the lot is stated by figures which would not include any part of the street. This construction has so long prevailed that it has become a rule of property, and it is founded upon the presumed intent of the parties to the conveyance. It is not reasonable to infer that the grantor intended to reserve the title to the fee of the narrow strip lying between the physical boundaries of the lot conveyed and the center of the street, or that the grantee understood that any such reservation had been made. The use of the fee of the bed of the street is so inseparably connected with the ordinary use of the adjacent lot that a severance of the two will not be deemed to have been effected unless the presumption that the grantor intended to pass title to the center of the street is rebutted by other parts of the deed, and by the condition and relation of the parties to the lands conveyed, and other lands in the vicinity. Mott v. Mott, 68 N. Y. 246. There is nothing inconsistent in the Hosmer deed with this presumption, but its provisions are in...