Hymes v. Esty

• Decision Date: 26 November 1889
• Parties: HYMES v. ESTY et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 501

22 N.E. 1087

HYMES

v.ESTY et al.¹

Court of Appeals of New York,

Second Division.

Nov. 26, 1889.

Appeal from supreme court, general term, fourth department.

J. H. Jennings, for appellant.

D. C. Bouton, for respondents.

BRADLEY, J.

The action was brought for an alleged breach of covenant of warranty, commonly known as ‘covenant for quiet enjoyment,’ in a deed made by the defendant's testator, conveying to Byron A. Todd lot 1, in block 88, in the village of Ithaca, and which the latter, by deed with like covenant, afterwards conveyed to the plaintiff. The alleged breach was the eviction of the plaintiff from a portion of the lot by the village of Ithaca, which had, before such conveyance to Todd, been appropriated as a part of a public street. The trial court held that no breach resulted from such appropriation and eviction, and nonsuited the plaintiff.

It must be deemed the settled doctrine in this state that the fact that part of land conveyed with covenant of warranty was at the time of conveyance a highway, and used as such, is not a breach of the covenant. This is so for the reason that the grantee must be presumed to have known of the existence of the public easement, and purchased upon a consideration in reference to the situation in that respect, (Whitbeck v. Cook, 15 Johns, 483;Huyck v. Andrews, 113 N. Y. 85, 20 N. E. Rep. 581;) and such is the rule in Pennsylvania, (Patterson v. Arthurs, 9 Watts, 152; Wilson v. Cochran, 46 Pa. St. 229.) But it is contended on the part of the plaintiff that such presumption did not arise in this instance, because there was at the time of the purchase by his grantor, or by him, no indication of a street upon the lot; and that the court erred in refusing to submit to the jury the questions whether at the time of the purchase of Todd from Esty the strip of land in question was actually and so obstructed as to preclude the presumption of any public easement there; and whether there was then, or at the time of the plaintiff's purchase, any indication of a public street there; also, whether the plaintiff had notice, either actual or constructive, of the public easement; and whether the land in question was embraced in the conveyance of Esty to Todd. The defendant's testator took title by deed in September, 1847, and conveyed, May 1, 1869, to Todd, who made the conveyance to the plaintiff in August, 1876. The conclusion was warranted by the evidence that neither Todd nor the plaintiff had any knowledge at the time of the purchases by them, respectively, of the existence of any street, or of the right in the public to one, upon the lot. That fact, of itself, is probably not important, if the situation was such as to indicate it. This lot is bounded on the east by Tioga street; and it is claimed, and there is some evidence tending to prove, that the north-east corner of the lot extended to, or very near to, Cascadilla creek, which runs north-westerly. The complaint is that the plaintiff was evicted from 12 1/2 feet in width at that corner next to the creek. There is evidence tending to prove that in 1848 Esty caused three oak piles to be driven in the creek at this corner, and that he then claimed to won the land to where the piles were placed; that, when Todd purchased, Esty claimed that the north-east corner of the lot went into the creek; that there was then no indication of a highway or street there, but that the fence extended to within two feet of the creek, at which point was located the fence-post, and that the post and the fence there had the appearance of having been standing a long time; that the situation was not changed any at the time of the plaintiff's purchase, except that the north panel of the fence had been taken out simply to enable the occupant of the lot to pass from Tioga street to a barn erected on the back end of the lot; and that there were some other apparent obstructions, further down the creek, to the use of its bank as a public street. In 1881 the village of Ithaca commenced an action against the plaintiff to enjoin him from maintaining, as he persisted in doing, a fence at the north-east corner of the lot extending near to the creek; and that action resulted in a judgment perpetually restraining him from maintaining a fence nearer than 12 1/2 feet from the creek, which space was determined to be within a public street extending along the southerly bank of the creek from Tioga street, on the east, down the creek to Sears street. And, from the record in that action, it appears that a strip of land there 12 1/2 feet in width had been dedicated to the public use as a street more than 20 years before the controversy between the parties to that action arose.

Upon this state of facts arises the question whether it was properly held, as matter of law, that the conveyance must, in effect, be deemed to have been made to Todd or to the plaintiff subject to the public easement, although the conclusion of fact was permitted that they severally purchased without any notice of it, and that there was then no indication of any street on the premises. To so hold is going further than did the court in Whitbeck v. Cook. There it was properly assumed that the highway was in use as such, and may have been seem by the purchaser; that he must be presumed to have known of its existence, and therefore purchased in reference to it. Such were substantially the views of the court in Wilson v. Cochran. And, in...