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Kidder v. Childs

Supreme Court of New York, Appellate Division

January 26, 1909


Submission of controversy between Ruth Seabury Kidder and another, as plaintiffs, and John Lewis Childs and another, as defendants. Judgment for defendants.

Miller and Woodward, JJ., dissenting.

This is a submitted controversy.

The plaintiffs and one Lexow made a contract by which the former agreed to convey to the latter for $175 an acre a tract of land in Suffolk county bounded " on the north in part by the North Country road, Ronkonkoma road, and land formerly of C. Edward Hawkins' estate; on the east by land formerly of Alfred W. Mills, C. Edward Hawkins estate, and Ronkonkoma road and the estate of Wm. Williamson; on the south by land of the estate of Wm. Williamson and land of George Powell; on the west by land of Du Bois Smith," in fee simple " free from all encumbrance" ; and he agreed " to purchase said premises at the said consideration of $175 an acre." The plaintiffs owned the fee to the center of the said boundary roads, subject to a perpetual highway easement, and the deed given by the plaintiffs and accepted by the defendant conveyed to the center of the said highways.

The question in dispute is whether the purchaser has to pay $175 an acre for the land in the said highways, the same as for the land bounding on them. Lexow assigned his contract to the defendant.

Charles Stewart Butler, for plaintiffs.

George M. Mackellar, for defendants.



The words of description in the contract, viz., bounded " by" the said roads, would, in a conveyance, although it does not in terms include the strips of land in the said roads, carry along the right, title and interest of the grantor in the said strips, i. e., to the middle line of the said roads. 3 Kent's Com. 433; 3 Wash. on Real Est. (5th Ed.) 448; Elliott on Roads and Streets (2d Ed.) c. 31. But it does not follow that the true construction of the contract is that the purchaser is to pay for the acreage in the highways, in addition to that within the precise terms of the boundaries. The contract sets boundaries to the land in the vendors' possession and to be paid for. For that purpose the land is bounded by the road and not by the middle line of the road. For the courts to make a rule that such a description, though not in terms including it, will draw or carry along with [114 N.Y.S. 562] the grant the grantor's encumbered fee in the highway, is not the same as making a rule as to whether the acreage in the highway, which is outside the precise terms of the boundary, shall be included in the acreage to pay for where the price is fixed by the acre. The one is no premise or foundation for the other. The former is an artificial rule made to prevent unintentional inconvenience and trouble. It rests on the presumed intention of grantor and grantee not to disconnect the highway strip and leave the title to it in the grantor, who could make no use of it. But an intention that such strip is to be paid for by the grantee at the rate an acre or square foot fixed by the contract for the land described therein is quite another thing and not to be presumed. If the contract does not expressly include the road or street area in the land to be paid for by the acre or square foot, such an intention cannot be implied. The rule in respect of boundaries by, on or along a road, street or nonnavigable river (and it is the same as to each), carrying the grantor's right, title or interest therein cannot be resorted to as the basis for such an intention. It is an artificial rule which stands alone, having a reason, history and literature all its own.

It is often the case that the vendor does not own into the road or street; in which case it could not be claimed that by a contract with a description like the present one he bound himself to convey the fee to the middle line of the road or street, and that his inability to do so was a breach. The terms of the contract in such a case would not be extended by the said artificial rule. This illustrates that the contract in and of itself is only for the land within the precise boundaries therein given; but if it happen that the vendor own the strip in the road, also, then the said rule comes into play, and by force of it the description carries along the said strip.

A contract of sale of a city block, bounding it by the surrounding streets, would carry the strips in the streets, for the rule is the same in respect of city lots as of farms. The same would be the case of a contract of sale by the map number of a city lot as the only description. Bissell v. N.Y. C. R. Co., 23 N.Y. 61.Could an intention be implied from this that the grantee must pay for the square feet in the streets, if the contract be for payment by the square foot? In the case of a corner lot 25 feet front, such street area would be more than twice that of the lot, assuming streets 100 feet wide. No one seems to know of such a claim having ever been made. And what of the case of land on a stream or river however broad?-for the cause would still be the same. The research of counsel has discovered no authority for the proposition that the bed of the road, street or river would have to be included in order to determine the area to be paid for. Reliance is placed on the rule that a description by, on or along a road, street or river carries to the middle line, but it does not apply.

The defendant should have judgment.

Judgment for the defendants, without costs, in accordance with the ...

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