[114 N.Y.S. 877] Fowler & Weeks and Green & Woodbury, for appellants.
Pickard & Dean and F. W. Stevens, for respondent.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
The judgment should be reversed so far as appealed from, and a new trial granted, with costs to the appellants to abide event.
The action was brought to determine the rights of the parties with respect to their properties upon and adjacent to Point Stockholm (so called), upon Chautauqua Lake, in Chautauqua county. It is an equity action, and by the judgment affirmative relief was granted to the defendants against the plaintiff. The plaintiff has not appealed, but has acquiesced in the judgment, so far as it is against him. Equitable relief was granted to plaintiff against defendants, and from the provisions affording such relief this appeal is taken.
In the year of 1887, Soderholm and Peterson owned a tract of land, bounded upon two sides by the lake, and they plotted and subdivided it into lots, streets, avenues, parks, and commons. They made a [114 N.Y.S. 878] map of the property and filed it in the county clerk's office, and the property was designated as " Soderholm's and Peterson's Allotment to Point Stockholm, on Chautauqua Lake." The lots were more or less of them sold to parties who erected cottages thereon and occupied the same during the summer months. In 1889 Peterson sold his one-half interest in the property to Soderholm. April 3, 1889, the plaintiff received a deed from Soderholm of lots 1, 2, 3, 4, 5, B & C, upon the point, and June 3, 1901, he also received a deed for another lot known as the " triangular piece." The plaintiff also acquired title to a strip of land adjoining Point Stockholm, 33 feet wide. Six years after Point Stockholm had been laid out, the defendants Swanson, Valien, and Hultquist acquired title to lands lying northwesterly of and adjacent to the point, which up to October, 1893, had been unused and uncultivated. The said defendants built cottages upon these lands, and occupied them as summer resorts. The defendants Rapp and Bergwall purchased lots on the point, and constructed cottages thereon. All the defendants owned cottages on their lands west of the point except Abrahamson. His only cottage was on the point. November 7, 1902, the defendant Abrahamson deeded to defendants Swanson, Valien, Bergwall, Hultquist, and Rapp lot No. 8, on the point. In the fall of 1903 the plaintiff built a wire fence on the line between the 33 foot strip and the triangular piece owned by him and the property westerly, owned by the defendants, down to low-water mark on the lake, so as to prevent the defendants from passing over the triangular piece to and from the point. The defendants Swanson and Abrahamson removed the southerly portion of this fence so as to permit teams and foot passengers to pass between the point and the defendants' premises to the west over the triangular piece. The plaintiff, by his deed of the triangular piece, acquired title to the low-water mark on the lake. At that time the water came up to the triangular piece. In July, 1903, when the water was low, Swanson and Valien and the other defendants, except Abrahamson, made a fill in front of their premises on the shore. They drove rows of piles, and put on planking, and filled in with gravel and stone, in order to extend their lawns. The line where the fence was built is not at right angles with the shore, but if extended, would be for some distance parallel with the shore, include the bay north of the point, and intersect the point itself. The fill was made by the defendants upon the theory that they could extend this line into the lake to low-water mark, and all the land west of it could be used and occupied by them. At the time the plaintiff purchased his premises on Point Stockholm, a natural water course extended from a swamp above down across the 33-foot strip and the defendant Swanson's land west of the point into the lake. It was a live one, always running. After plaintiff purchased his premises he drilled an artesian well on the 33-foot strip, and the surplus water which flows the year around runs off in the water course, and all the waste water from plaintiff's house runs through a wooden culvert into this water course. This statement of facts gives a general idea of the conditions surrounding the property of the parties.
First. The referee held that the defendants had no right to cross [114 N.Y.S. 879] over the westerly line of the triangular piece between the point and their property to the west, on foot or with teams, and by the judgment they were restrained from so doing. The finding and judgment related also to the 33-foot strip. That piece was no part of the point. We do not understand it to be claimed that the defendants had any easement in or right to enter upon or cross that piece. The triangular piece, however, was a part of the point and of the commons, and by this deed the plaintiff acquired the title thereto, subject to the easement which attached to the other commons on the point. The defendants were all owners of property on the point, and by their deeds acquired the easements common to all lot owners thereon. Among these was the right to use the commons, and, as a part thereof, the triangular piece, for any and all proper purposes. To this extent the parties are agreed. The disagreement is as to what was a proper use of this part of the commons. By the language of the grants to the defendants they were given a right to use, in common with all other owners, the streets, avenues, parks, and commons, but no right to use them for any other purpose than such as was usually allowed on streets, avenues, parks, and commons. The grant is no more specific as to the use that might be made of the public parts of the point.
The referee, upon the request of the defendants, has found:
(7) " That one of the uses to which the persons who plotted and laid out Point Stockholm devoted said commons and parks, and for which they them selves used the same, was that of passing to and from lands adjoining Point Stockholm."
(8) " That such use has been continued by owners of lands upon Point Stockholm to the present time."
(9) " That the plaintiff in this action has used the parks and commons for the purpose of passing upon the 33-foot strip adjoining the point, of passing onto the lands owned by these defendants west of said premises, in passing to the lands adjoining known as ‘ Sheldon Hall,’ southeast of said premises."
(10) " That it has been customary for the parties who plotted Point Stockholm, and for the grantees, to pass over the parks and commons for the purpose of visiting the defendants, and that many of the owners of lots upon Point Stockholm have invited these defendants to visit their homes from time to time, and it has been customary for these defendants to visit their homes from time to time, and it has been customary for these defendants to travel over the parks and commons for the purpose of doing so."
(11) " That the owners of lands on Point Stockholm have from time to time, as occasion demanded, used the parks and commons, or portions thereof, for driving upon with various kinds of vehicles."
It would seem, therefore, that the understanding of the parties was that the commons might be used by the owners of lots thereon for going on and off the point. This triangular piece was common, was down next the water, and its westerly boundary was the division line between the point and the defendants' adjoining property. The defendants by express grant in their deeds of property on the point had the legal right to enter and be upon this piece of land as a part of the commons, and to be at the boundary line of the point. What their purpose or design in so doing might be was unimportant. They were under no obligations to have any intentions at all in going upon the commons. What was in their minds could not affect the legality of their entrance upon any part of the commons. Can it be that, [114 N.Y.S. 880] while being legally upon the triangular piece by the boundary line, the stepping over that boundary line upon the adjoining property or from such adjoining property to the commons would be illegal, and should be restrained, by the judgment of the court? This is practically what has been done in this case. The restraint is against going over the boundary line. So far, if at all, as the restraint is from going upon or across the triangular piece, it could not be sustained at all, and apparently the only restraint intended to be imposed was the crossing of the boundary line, the one way or the other. Whether such crossing was on foot or with vehicles could make no difference. The decision was not placed upon any improper use of this part of the common by the use of vehicles, as distinguished from travel on foot. The defendants had a right to go on and off the point, and to use the streets, avenues, parks, and commons for the purpose of such entry and exit. We find nothing in the conveyance requiring them to use any particular way in going on and off the point. If there was a highway adjoining the point, they could pass over any street, avenue, park, or commons ...