Swain v. Schonleben , 109 N.Y.S. 223 ( 1908 )

DAYTON, J.

Under chapter 1006, p. 2037, of the Daws of 1895, the fee to the premises in question passed to the owner of lot No.' 102 at the time of the closing of Fifth avenue. It is not disputed that the street has been duly closed and was closed prior to the conveyance from Shaw to Swain. By that conveyance the premises in suit were specifically described as “together with so much of Fifth avenue as shown on said map as adjoins lot No. 102 and lies to the westerly of the center line of said Fifth avenue.” This description unquestionably passed the title to Swain. In his deed to the Schonlebens this recital was omitted. It cannot be said that the premises could be inferentially transferred, nor is the Schonlebens’ contention that reference to the former line of Fifth avenue in their deed is sufficient to pass title to the middle of the street a sound contention. For, as above stated, all easements, both public and private, were extinguished by the closing of the street under the act of 1895, and the fee of that portion which the then holder held subject to an easement passed to him. In other words, Shaw, when the street was closed, was possessed of what may be regarded as two parcels of property. Formerly, he held lot 102 and the fee to the center line of Fifth avenue as then laid out in front of said lot, subject to an easement. After Fifth avenue was closed, he held lot 102 and the fee to the additional small parcel in front thereof to the center line of Fifth avenue as it formerly existed. He was at liberty to inclose the same and use it as he saw fit. By his deed to Swain he passed both parcels. By Swain’s to the Schonlebens the second or smaller parcel was retained by Swain, and the only purpose in referring to the former line of Fifth avenue in the Schonleben deed was to provide an accurate description of what was intended to be conveyed. For the same reasons that prevent the Schonlebens from asserting ownership in the premises- they can claim no easement therein, all easements both private and public having been extinguished as above indicated. They can claim no easement of necessity, since they have ready access over lot No. 103, which fronts on Hawlcstone street, to lot No. 102; both lots having been conveyed to them by the plaintiff in a single deed, which described them as one parcel. And they are, furthermore, estopped from asserting any claim to such easement by virtue of their having accepted an award for damages for a portion of the discontinued street adjacent to another lot (No. 101) which they owned. They have recognized the extinguishment of all private and public easements in and the discontinuance of Fifth avenue. There must be judgment for Mr. Swain in both actions.