Summary
In Fiebelkorn v. Rogacki (280 App. Div. 20, 21, aff'd 305 N.Y. 725) citing Lord v. Atkins (supra) and other cases, the court said: "The rule of law is that when an owner of property sells lots in reference to a map, which lots abut upon a street as shown on the map, the grantees are entitled to have the land shown as a street left open forever as a street or highway".
Summary of this case from Low v. Humble Oil Refining Co.Opinion
APPEAL from a judgment of the Supreme Court in favor of plaintiffs, entered June 26, 1951, in Erie County, upon a decision of an Official Referee (ALONZO G. HINKLEY, Off. Ref.), directing (1) that plaintiffs have a valid, absolute and unincumbered title to certain premises, (2) that the counterclaims of defendants be dismissed, (3) that plaintiffs have full and exclusive possession of the premises and are entitled to possession thereof as against the defendants, and (4) that plaintiffs have costs and disbursements of this action. The action was brought pursuant to article 15 of the Real Property Law to determine claims to real property, consisting of a strip of land fifty feet wide known as Walter Avenue. In 1892, the Bellevue Land and Improvement Company conveyed a tract of land to John R. Walter and Henry Schwabl which included the premises in dispute. At the time of purchase the grantees gave the grantor a purchase-money mortgage to secure the sum of $25,000. Thereafter in 1896, the grantor filed a subdivision map of the premises in the office of the Clerk of Erie County, which showed a street fifty feet wide marked Walter Avenue. After the grantor had reacquired title by a referee's deed on foreclosure of the mortgage in 1900, it again conveyed the premises to Henry Schwabl. By deed dated in 1902, Henry Schwabl and his wife conveyed subdivision lots to the south of Walter Avenue as filed under the map to Joseph Young, defendants-appellants' predecessor in title. The next day Schwabl and his wife conveyed to John Schwabl lands to the north of the said Walter Avenue by subdivision lot numbers. In 1941 Gertrude Schwabl, widow of Henry, conveyed by warranty deed, which described the land by metes and bounds, the premises in question and adjoining lands to plaintiffs, who subsequently, in 1950, acquired the title held by John Schwabl's estate. Thereafter plaintiffs used the premises for lawn and grass.
COUNSEL
Maurice J. Rumizen for plaintiffs-respondents.
Brennan and Brennan for appellants.
Howard A. Davidson for defendant-respondent.
PIPER, J.
We agree with the trier of the fact that the Town of Lancaster had not officially accepted the strip of land known as Walter Avenue as a public highway and that appellants failed to establish that it had become a public highway by user. We think, however, that the judgment must be reversed on other grounds.
While the Bellevue Land and Improvement Company did not have title to the premises in question at the time the subdivision map was filed, it reacquired title by referee's deed on the foreclosure of the mortgage, which deed referred to the map, and it adopted and recognized the map in its conveyance of premises and more to Henry Schwabl. He in turn conveyed to Joseph Young (appellants' predecessor in title) by subdivision lot numbers, which conveyance included all the lots abutting on the southerly line of Walter Avenue as shown on the map. Henry Schwabl also conveyed, by lot numbers, ten lots (Nos. 23 to 32 inclusive in block 'M') abutting the northerly line of Walter Avenue to John Schwabl.
The rule of law is that when an owner of property sells lots in reference to a map, which lots abut upon a street as shown on the map, the grantees are entitled to have the land shown as a street left open forever as a street or highway and this is so whether or not it is accepted by the town or municipality as a public highway. ( White's Bank v. Nichols, 64 N.Y. 65, 73; Lord v. Atkins, 138 N.Y. 184, 191; Johnson v. City of Niagara Falls, 230 N.Y. 77, 82; Matter of City of New York [Brigham St.], 246 A.D. 819, affd. 273 N.Y. 508; Erit Realty Corp. v. Sea Gate Assn., 249 N.Y. 52, 57; Matter of City of New York [Northern Blvd.], 258 N.Y. 136, 147; Matter of City of New York [Sedgwick Ave.], 213 N.Y. 438, 442; Dalton v. Levy, 258 N.Y. 161, 165; Mills v. City of New York, 269 A.D. 306, 312, affd. 295 N.Y. 879; 28 C. J. S., Easements, § 39, p. 701; 17 Am. Jur., Easements, § 47, p. 958.)
It is also well settled that the conveyance of subdivision lots under such circumstances, in the absence of express reservation, conveys the fee to the center of the street on which the lots abut, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes. (Bissell v. New York Central R. R. Co., 23 N.Y. 61; Geddes Coarse Salt Co. v. Niagara, Lockport and Ontario Power Co., 207 N.Y. 500; Trowbridge v. Ehrich, 191 N.Y. 361, 365; Haberman v. Baker, 128 N.Y. 253, 257; Paige v. Schenectady Ry. Co., 178 N.Y. 102, 110, 111.)
Under these well-established rules, it is clear that the appellants own the fee from the south line to the center of the street shown as Walter Avenue on the map of the subdivision and are entitled to have the use of the entire fifty-foot strip of land for highway purposes. Assuming, as to the parties to the action, that the deed purporting to convey the ten lots, owned by John Schwabl in his lifetime, to respondents was a valid conveyance of those premises, the respondents own the fee from the north line of Walter Avenue to the center line thereof subject to the right of appellants and their invitees to the use of the entire fifty-foot strip for highway purposes.
The appellants should be entitled to judgment directing the respondents to remove from Walter Avenue all obstructions and encroachments placed or erected thereon by respondents, and declaring their rights in and to such street in accordance with the decision here made, with costs.
All concur. Present--TAYLOR, P. J., VAUGHAN, KIMBALL, PIPER and WHEELER, JJ.
Judgment reversed on the law and facts, with costs and judgment directed in favor of appellants in accordance with the opinion, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.