Summary
In Duryea v. Mayor, etc. (62 N.Y. 592) it was said that a similar clause did not limit the right of the owners to fill the space between the streets, but on a subsequent appeal (Duryea v. Mayor, etc., 96 N.Y. 477), it was said that the provisions of the sinking fund ordinance had not been called to the court's attention on the first appeal and it was held that the council had given its consent.
Summary of this case from Appleby v. DelaneyOpinion
Argued June 21, 1875
Decided September 28, 1875
A.J. Vanderpoel for the appellant. D.J. Dean for the respondents.
It must be assumed that this case was tried, and the nonsuit granted, upon the theory that the deed from the mayor, etc., of the city of New York to the trust company, the plaintiff's grantor, restricted the grantee and its assigns from filling up or using any portion of the land under water, conveyed by it, until required or authorized to do so by the city. The plaintiff offered to prove that he built a return wharf or open pier, on the north side of the premises which was outside of any street, that he filled in other portions of the land, and also offered to prove facts tending to show that he had been injured by the sewerage turned upon his premises by the defendants. All this evidence was rejected. It would have been competent but for the construction of the deed, that the plaintiff was prohibited from doing any work in filling up the land between the spaces occupied by the streets and wharves as well as the making of the streets and wharves, and the General Term sustained the ruling mainly upon this ground. I am not prepared to assent to this construction. There is certainly no express prohibition or covenant against filling in the intermediate spaces between the shore line and the line of the streets, avenues, wharves, etc. The deed conveys nine several pieces of land under water by metes and bounds, adjoining certain contemplated streets running to the East river. The spaces to be occupied by streets are not conveyed. It contains covenants that the grantee shall, within three months after being required, make and construct the streets and wharves and bulk-heads referred to, "and will also fill in the same with good and sufficient earth, and regulate and pave the same and lay the sidewalks thereof." It also contains a covenant that the grantee will not build the streets, wharves, etc., "or make the lands in conformity with the covenants hereinafter" mentioned, until permission shall be obtained from the city. The only covenant in the deed for making lands applies exclusively to the building of streets, wharves, etc., and there is not a word pertaining to the intermediate spaces. It is claimed that there is an implied prohibition against it because it is impracticable to fill in the intermediate spaces without the streets and wharves for support. There is no evidence to this effect, nor can we take judicial notice of the fact. The return wharf from that in the East river to the shore was built by the plaintiff on his own premises, and of course outside of the street, and I infer that a portion of the space at least back of it might be filled in and used, or piles might be used for foundation without support from the prohibited structures, but this is a question of fact with which we have no concern, and is only referred to for the purpose of illustrating the remark that we cannot take judicial notice of it. The estate granted is a fee simple, and the deed confers upon the grantee and its assigns all the rights and privileges of an absolute owner except as restricted by the covenants and reservations contained in it. The beneficial enjoyment of property belongs to the ownership and the construction contended for would deprive the plaintiff of any such enjoyment, until the city ordered the streets and other structures to be made. It is a general rule that exceptions and restrictions are to be construed strictly against the grantor and are not to be extended beyond the fair import of the language expressed except by necessary implication. No such implication arises in this case. While the city properly retained the control and direction of the time and manner of making streets, etc., it is not apparent how that control is inconsistent with the beneficial enjoyment of the intermediate spaces. It certainly does not appear in the case as now presented. It is unnecessary to consider other questions.
The judgment must be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.