Opinion
Argued May 3, 1907
Decided May 10, 1907
John O'Leary for appellant. V.K. Kellogg for respondent.
In 1865, Lucy M. Grenell purchased an island in the St. Lawrence river and she caused the same to be laid out into lots, with boulevards, streets and roads; according to a map which she made and filed. Upon this map the lots were numbered and, in 1894, she sold to Hopkins Chamberlain "the lot numbered 34 as laid out on the map of the Grenell Island Park, the lot laying ( sic,) on the South east shore and adjoining lot 175, on the south west of lot now deeded to Widener, the lot 126 feet front and 68 feet deep, supposed to contain 60 by 100 feet, the same more or less." Thereafter, in 1897, Hopkins Chamberlain conveyed the same lot, by the same description, to Robbins. In 1901 Robbins conveyed to this plaintiff "the cast one-half of lot number 34 as laid down on a map of Grenell Island Park, said lot being on the south-east shore * * * together with the dock and dockage in front of said lot and the water rights acquired and used by parties of the first part and the boat house on said lot and dock" etc. "South Boulevard" upon the Grenell map extends along the southerly shore of the island and intervenes between lot 34 and the river; being 50 feet in width. While Robbins owned the lot he constructed on the shore, in front of it, a crib dock, upon the westerly end of which he placed a building. Subsequently, another person, a stranger to the title, placed a building upon the easterly end of the dock and paid the Grenells a rental. After the plaintiff had acquired the easterly half of the lot, he purchased the building in front of it upon the dock. He then commenced this action to determine the title to the street in front of his land. The defendant was the husband of Mrs. Grenell, the original owner, who has succeeded to all her right and title, as the devisee under her will. He claims that no part of the land in the boulevard was conveyed by his wife's deed to Hopkins Chamberlain and denies any right in the plaintiff to possess, or to use, the shore. He succeeded in recovering a judgment establishing his title to the south half of the boulevard and to the riparian ownership. This judgment, however, was reversed by the Appellate Division; where it was held, the court being divided in opinion, that, upon the facts, the plaintiff was shown to be the possessor of the legal title to the street and to the boat house and dock; subject, as to the street, to the exercise of the public easement.
I think that the determination by the Appellate Division was correct. So far as the description of the premises included dimensions, they may be disregarded, as affecting, or limiting, the land conveyed. The words "lot 126 feet front and 68 feet deep, supposed to contain 60 by 100 feet, the same more or less," if not meaningless, are too ambiguous. What the original deed of Mrs. Grenell intended to grant was to be ascertained from her map. It conveyed a piece of land known as lot No. 34 on the map, being on the southeast shore, with a road in front of it extending to the waters of the river. Had the grantor intended to reserve the land in the roadway, or any part of it, she could have done so; but there is an absence of any language, from which such an intention could be implied. Indeed, there is no sufficient reason apparent to infer an intention by the grantor, when parting with her title to the only land adjoining the road, to reserve any interest in the fee of the road itself. Manifestly, from the facts, an inducement to the purchaser of the lot was its being shown, and stated, to lie upon the shore of the island and the enjoyment of the riparian advantages conferred a distinct value. The ordinary presumption is that, in the absence of contradictory terms, the grantor does not intend to retain the fee of the soil in the street. ( White's Bank of Buffalo v. Nichols, 64 N.Y. 65, 70.) The grantees of Mrs. Grenell, in this case, had the right to rely upon the application of the rule that a grantor will not be supposed to have reserved the title to the road bounding a grant of lands, if its control ceased to be of importance to him by reason of his having parted with all of his interest in the lands adjoining it. ( Haberman v. Baker, 128 N.Y. 253.) That Mrs. Grenell's grantees took by her deed, certainly, one-half of the road was conceded and had she owned any land upon the other side of the road, the other adjoining half of the road would have remained hers. As we have seen, that was not the case and the defendant cannot claim that any riparian rights remained in his predecessor in the title. In the absence of anything expressing a contrary intention, those rights follow a grant of the uplands.
It was held in Haberman v. Baker, ( supra), that "where the highway has been, as in the present case, wholly made from and upon the margin of the grantor's land, his subsequent grant of the adjoining land should be deemed to comprehend the fee in the whole roadbed, upon the same principle that exists for giving the fee to the center in other cases." In the present case the control of the boulevard, which had ceased to be of importance to Mrs. Grenell after she had parted with the adjoining land, was important and essential to her grantees, for obvious reasons connected with their full enjoyment of the premises.
In the cases of Bissell v. N.Y.C.R.R. Co., ( 23 N.Y. 61); Haberman v. Baker, ( supra), and Graham v. Stern, (168 ib. 521), will be found ample support for the doctrine that in the case of such a grant as this record presents, in legal intendment, the grantor conveyed her property in the whole road bounding the premises granted.
I advise that the order appealed from be affirmed and, under the stipulation of the appellant, that judgment absolute be ordered for the respondent, with costs in all the courts.
CULLEN, Ch. J., O'BRIEN, VANN, WERNER and WILLARD BARTLETT, JJ., concur; CHASE, J., dissents.
Ordered accordingly.