Badeau v. Mead , 14 Barb. 328 ( 1852 )

S. B. Strong, J.

The plaintiff does not complain of the continuance of the fence across Garden-street, at its junction with the White Plains road, as a grievance, but simply states the fact as a part of his history of the case. Neither does he ask for its removal. It is therefore unnecessary to consider whether such continuance is an infringement of the rights acquired by his deed; and the referee erred in directing the defendant Mead to remove all obstructions in that street. Neither does the complaint rely upon any verbal representations made by Mead, or the auctioneer, at the time of the sale, or in any manner allude to them. Even if such representations had been made and had been set. forth in the complaint, they could not have been given in evidence to qualify or extend the plaintiff’s right, as they would have been merged in his deed. Such evidence would have been competent had the plaintiff complained of fraud as a cause of action, or as a basis for relief, or had he relied at all upon a dedication of the streets mentioned and described on the map, and its acceptance by the public. But he has done neither.

The essential statements contained in the complaint, and upon which alone the plaintiff must rely in support of his application for redress and relief, are that Mead caused a tract of land, of which the tract or lot conveyed to the plaintiff is a part, to be surveyed, and had a map of it made, on which were designated various lots, which were numbered successively from 1 to 20, and three roads, named Garden-street, which joined the tract purchased by the plaintiff, and passed from that to the White Plains road, which was the nearest highway, and Cottage avenue and Orchard-street; that the map was exhibited by the auctioneer at the time of the sale, and that Mead, by making the survey, running out the lots, streets and avenues, and exhibiting the map previous to and at the time of the sale, represented that the purchasers should have the use and benefit of such streets and avenues, of the width, extent and location as laid down on such map; that the plaintiff, at such sale, purchased his tract, which was subsequently conveyed to him by a deed referring, in the description of the premises, to the map as filed in the office of the county clerk, and describing the northerly boundary as running along the southerly side of Garden-street, as laid down on the map, two hundred and fourteen feet; that Mead had since sold another part of his tract to the defendant Holmes: that Holmes had commenced making a fence across Cottage avenue at a place on the land conveyed to him, and that Mead has declared his intention of shutting up the avenue and obstructing Orchard-street, and the plaintiff therefore prays that the defendant may be restrained from obstructing the said avenue and street, (referring of course to Orchard-street which had been last named,) and directed to remove existing obstructions in the avenue, and that they should pay the plaintiff’s damages.

It is apparent, from this statement, that the plaintiff’s whole reliance for relief must be upon his deed and the map to which it refers. He can claim no other, at any rate, in this suit. He does not alledge fraud, and there is no latent ambiguity in either of those papers which would justify the admission of extrinsic evidence to explain them. If those papers do not confer upon the plaintiff all the rights to which, under the circumstances, he is entitled, he can have them reformed, under a proper proceeding instituted for that purpose, but if, without that, he asks for relief, he must take them as they are.

As Mead retained the intervening land between the tract sold to the plaintiff and the highway, the plaintiff would have taken a right of way over such remaining lands, as incident to his grant, had none been specified. If it had not been particularly located and defined in the deed, he would have been entitled to a convenient passway. The description in the deed, or, which is the same thing, the map to which it refers, locates the road, and defines its boundaries; it also, by omitting any limitation, calls for an unobstructed way. I consider it to be well settled that where the grantor bounds the lands which he conveys, by roads, whether existing or to be made, over lands retained by him, he conveys to the purchaser, as incident to the grant, a right to use such roads as described, when they adjoin the premises, and, if necessary, out to the common highway. Such right becomes appurtenant to the land conveyed. We can, I think, go to that extent—no farther, at least as to rural property. Upon this principle the plaintiff has a right to an unobstructed way to the White Plains road, and can have the fence across Garden-street removed, when he seeks for it in an appropriate proceeding.

But although an appurtenance may well be over an adjoining tract of land, because there may be the requisite connection, yet it cannot, for obvious reasons, ■ extend to separate and distinct premises. Any privilege over them is a distinct subject. It is not in any manner dependent upon, nor absolutely necessary for, the use of the principal thing granted. If it passes at all it must be by a specification of it as a distinct subject, and not as adjunct of something with which it has no connection. (1 Bulstrode, 17. Grant v. Chase, 17 Mass. Rep. 443. 2 Metc. Rep. 457, 464.)

But it is contended by the plaintiff that Mead dedicated the roads laid down on his map to the public, and that as such dedication is referred to in the conveyance to the plaintiff, he has a right, so far as it relates to the defendants, (one being his vendor and the other a subsequent grantee,) to enjoy them as public highways, and to call for a removal of any existing obstruction, and the prevention of new ones. He claims the right as one resulting from his deed, and not merely as a public privilege. The cases quoted by the plaintiff’s counsel, on the subject of dedication, have reference to city lands, and are not, to the extent to which they go, applicable to rural property. In the case of Livingston v. The Mayor, &c. of New- York, (8 Wend. 98,) Chancellor Walworth says, “The right of way, as a mere rural servitude, is confined to a convenient passage from the property granted, to the public road or highway, and the principles of construction applicable to grants of property ip the country, do not apply to conveyances of city lots.” In the case of Wyman v. The Mayor, &c. of New- York, (11 Wend. 486,) Chief Justice Savage said, “ The chancellor, in Livingston v. The same defendants, (which I have quoted,) has taken a very proper distinction between grants of property in the country and of city lots. The rules of law applicable to the former are not so to the latter.” The property in the case under consideration was in the country, but as it was laid out, and no doubt designed, for village lots, it may be well enough to inquire as to what has been necessarily decided in the cases, on the subject of the dedication of city streets, in the courts of this state. I say necessarily decided, because to that extent only can they be considered as binding authority. If we are to be governed by the loose opinions thrown out sometimes by judges, and often by other members of the late court of dernier resort, we should have such a medley that there would be all sorts of law upon all controverted subjects. Those cases, when the facts are examined, decide that where a map had been made by the city authorities, and individuals had subsequently conveyed their lots bounded by streets as described on the city map; or where individuals had in the first instance made a map of their own lands, locating and describing streets, and such streets were afterwards accepted by the public either formally or when the land was open, by using it, there was a dedication of such streets, and the proprietors, when the city authorities should subsequently take formal possession of them, were entitled to only nominal damages. In such cases there could not well be much room for doubt. The proprietors of the lots granted would be entitled, on principles applicable to conveyances as well of country as of city property, to the use of the street as described in front of their respective houses. Subject to such right the interest of the street owner would be worthless. He could not use it at all, for his private emolument, and as when taken fully by the public he would be entitled to only its value to him at the time, the constitutional requisition would be satisfied by giving him a nominal compensation. In- both classes of cases to which I have referred, there had been a mutuality; the land proprietor had given to the public the land for which the public by describing it as a street had asked, or the public had either directly or inferentially, when the land designated as a street was originally, and had continued open, accepted what had been first offered. There is nothing in these cases to overthrow the well settled rules, that a grant, whether inferential or direct, or whether to the public or to a private individual, is inefficacious until accepted by the grantee; or that an offer, whether made to an individual or to the public, may be withdrawn at any time before it is accepted; or that a grant to an individual comprehends only the thing granted, with its appendages and appurtenances, and does not extend to other matters with which the property conveyed to him has no immediate connection. Opinions may have been, and I think were, expressed by some of the members of the court for the correction of errors, that a purchaser of a city lot had an interest in all the streets described in the map of a large tract owned by the vendor, to which a reference was made in his deed; but that point was not necessarily involved, and any opinion upon it, opposed as it is by well settled principles, cannot be considered as a controlling authority.

The doctrine of dedication has been carried quite far enough, and ought not to be extended. Persons who have from mere kindness suffered others to enjoy privileges in their lands, have been eventually coerced into parting with them entirely, without compensation, and to yield up as rights what they had previously suffered or allowed as favors, and the simple expression of an intention has often been distorted into a positive promise, and occasionally to those who have no distinct interest in its performance. Our title to our lands is too important to be lightly lost, upon slight presumptions. Before the owner should be deprived of his property, his intention to part with it should be clearly and unequivocally expressed. And for greater certainty it would be better, far better, that to be effective it should be evinced by writing, rather than by doubtful conduct or still more doubtful declarations.

There are undoubtedly cases where parties, who have induced others to act upon representations designed for the purpose, are and should be compelled to make those representations good. But such assertions must be of something existing at the time, and their falsity must be prejudicial to the legal interests of the one who seeks redress. No one can call for the redress of an injury to others, whether they be individuals or the public, unless his own rights are invaded. Neither can one be required .to carry into effect his expressed intentions as to the future, unless he has directly promised to do so, and then only by one legally interested in the performance of the promise.

[Dutchess General Term, October 4, 1852.

Barculo, Brown and S. B. Strong, Justices.]

In the case under consideration, there is no assertion or evidence that the dedication, if tendered, was accepted by the public, or that if effectually made, the plaintiff so far as it relates to the two streets in question had any private interest in the property dedicated, or that he was induced to make his purchase by the assertion of any thing as to the present, or the promise of any thing as to the future.

Upon the principles which I have laid down, the present action cannot be maintained.

The report of the referee must be set aside, and the judgment entered upon it must be reversed, and judgment given for the defendant.

Barculo, J. concurred.

Brown, J. dissented.

Judgment reversed.