SCHONLEBEN ET UX.
SCHONLEBEN ET UX.
Appeal from Special Term, New York County.
Two actions, one by Joseph Schonleben and Mary F. Schonleben, his wife, against Harold Swain, and the other by Harold Swain against Joseph Schonleben and Mary F. Schonleben, his wife. From a judgment in each case in favor of Harold Swain (109 N.Y.Supp. 223), the Schonlebens appeal. Affirmed.
Harlan F. Stone, for appellants.
Benjamin N. Cardozo (Harold Swain, on the brief), for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, HOUGHTON, and SCOTT, JJ.
Both of these cases have to do with the title to a strip of land in the bed of what was formerly Fifth or Sherman avenue, in the borough of the Bronx, in the city of New York, and which lies in front of and abuts upon a plot of land heretofore conveyed by the respondent, Swain, to the appellants, Joseph and Mary P. Schonleben. In one action the Schonlebens seek to enjoin Swain from interfering with their use of the disputed plot. The other action is brought by Swain to determine the respective rights of the parties to the plot in question.
Both actions arise upon the same facts, and involve the same questions of law. It appears that on February 14, 1854, there was filed in the office of the clerk of Westchester county (in which these premises lay) a map of the village of Mt. Eden, on which was laid out a street designated as " Fifth Avenue." The property between the streets and [115 N.Y.S. 24] avenues designated on that map was laid out into lots and numbered. The lots numbered 101, 102, and 103, all of which are now owned by the appellants, were shown as fronting on and bounded by Fifth avenue. The plot of land in dispute lies in front of lot No. 102, and comprises one-half of the land designated as " Fifth Avenue" opposite the lot. In 1878 an official map was filed by the park department, upon which Fifth avenue was shown, and designated " Sherman Avenue." It appears to have been graded, worked, and used as a public street until about the year 1895. By chapter 545, p. 965, of the Laws of 1890, provision was made for the election of a commissioner for the Twenty-Third and Twenty-Fourth wards of the city of New York (within which the property in question is located), with power within these wards to lay out and locate new streets, roads, avenues, and public squares and places, and, with the concurrence of the board of street opening and improvement, to change or close established streets, avenues, and public squares and places. By chapter 712, p. 859, of the Laws of 1896, the Legislature expressly confirmed the maps and plans drawn, approved, and filed as specified in the act of 1890 as the final map of the street system of the Twenty-Third and Twenty-Fourth wards. Among the maps thus drawn and confirmed was one filed on November 2, 1895, showing a square or plot of land inclosed and surrounded by four new streets, to wit, Walton avenue, Hawkstone street, Grand boulevard and concourse, and Rockwood street. That portion of Fifth avenue involved in these actions was inclosed within the square thus formed, and was indicated for discontinuance as a public street. By chapter 1006, p. 2037, of the Laws of 1895, further provisions were enacted regulating the closing of streets. In March, 1897, commissioners were duly appointed in proceedings to open the street specified on the map filed in November, 1895. In this proceeding was included the ascertainment of the damages to be awarded to the owners of property abutting upon Fifth avenue by reason of the discontinuance of said avenue as a public street pursuant to the provisions of chapter 1006, p. 2037, of the Laws of 1895. These commissioners, among other things, reported as follows:
" We further report that our awards herein are based upon the assumption that, upon the discontinuance and closing of the streets and avenues for whose discontinuance and closing we have awarded damages, such parts or portions thereof as are included within the boundaries of any square or plot of ground made by the intersection of any streets and avenues laid out by the local authorities upon the permanent map or plan of the city were no longer streets or avenues for any purpose whatever, and that the owners in fee of the land or soil within the boundaries thereof became entitled thereupon to enclose, use and occupy the same to the exclusion of all others, and that all easements of light, air and access in the same were thereupon extinguished."
Under chapter 1006, p. 2037, of the Laws of 1895, the portion of Fifth or Sherman avenue within the block or square bounded by the new streets hereinbefore mentioned, ceased to exist as a public street when any one of the boundary streets became open, and thereupon the owners in fee of the land comprising such discontinued street became entitled to occupy it as if it had never existed as a public street. The four new streets bounding this block or square were opened at various dates between February 20, 1897, and June 1, 1904.
[115 N.Y.S. 25] At the time of the discontinuance of Fifth avenue as a public street, lot No. 102, and one-half of the bed of Fifth avenue lying in front of it, belonged to Alexander D. Shaw. He conveyed the lot to the respondent, Swain, in July, 1904, by a deed in which he expressly included all his right, title, and interest in the bed of Fifth avenue, reserving to himself all claims for damages for the closing thereof. At about the same time Swain acquired the adjoining lot No. 103, onto which he moved a house, which he occupied. He fenced off that portion of the bed of Fifth avenue, or nearly all of it, which lay in front of lot No. 102, and used it as a vegetable garden, running the fence along the street line between lot No. 102, and the bed of Fifth avenue in front of it, for about two-thirds of the width of the lot. This condition of affairs continued until he sold lots Nos. 102 and 103 to the appellants by deed dated April 2, 1906. He continued to retain physical possession of the land in controversy, being the bed of what had been Fifth avenue lying in front of lot No. 102, which he continued to use as a vegetable garden, replacing the wire fence which ran along the street line by a wooden fence on the same line and extending the whole width of the lot. In May, 1907, these actions were commenced. The appellants contend: First. That by his deed to them Swain conveyed to them the fee of the bed of Fifth avenue lying in front of lot No. 102. Second. That, if he did not convey a fee, there remained appurtenant to lot No. 102 private easements of light, air, and access which had not been extinguished by the proceedings which resulted in the closing of Fifth avenue. Third. If neither of these contentions can be upheld, that Swain by the terms of his conveyance to the appellants recreated and re-established in favor of lot No. 102 private easements of light, air, and access over what had been the bed of Fifth avenue.
The first contention of the appellants, that Swain conveyed to them the fee in the bed of Fifth avenue, is clearly untenable. Swain had acquired such a fee by the express terms of the deed to him from Shaw, but when he came to convey to the appellants he was careful to use different language. He refers, it is true, to the Mt. Eden map on which Fifth avenue was shown as a street, and he refers to Fifth avenue in bounding the property conveyed; but he does so in a manner which serves to exclude any part of Fifth avenue from the operation of the conveyance. The boundary line runs, so far as concerns Fifth avenue:
" Thence easterly parallel with Walnut street 100 feet to the westerly side of Fifth avenue as laid down on said map, thence northerly along the westerly side of Fifth avenue 114.83 feet to the intersection of said westerly side of Fifth avenue with the northerly side of Hawkstone street," etc.
The rule in this state is that the bounding of a lot by the exterior line of an abutting street, as contradistinguished from bounding it by the street, excludes from the conveyance any part of the abutting street, unless there be circumstances (of which we find none in the present case) indicating a different intention. Jackson v. Hathaway, 15 Johns. 447, 8 Am. Dec. 263; English v. Brennan, 60 N.Y. 609; White's Bank of Buffalo v. Nichols, 64 N.Y. 65; [115 N.Y.S. 26]Kings County Fire Ins. Company v. Stevens, 87 N.Y. 287, 41 Am. Rep. 361; Augustine v. Britt, 15 Hun, 395.The question of the effect of a boundary by or along a lane or highway was recently discussed at length by the Court of Appeals in Van Winkle v. Van Winkle, 184 N.Y. 193, 203, 77 N.E. 33, 35, wherein it was said:
" The general rule both in England and in this state is that the fee of the soil of the highway is presumed to belong to the adjoining owners, and that a person holding land bounded on a highway between two estates is prima facie the owner of the center of such highway, subject to the easement of the public to the right of way; but that such presumption can be rebutted by an express provision in the deed to the effect that the fee to the highway was no intended to be conveyed, or by the use of such words as necessarily exclude the highway from the description of the premises conveyed, as where the description of the premises is bounded upon the exterior line of the highway, or commences at a point on one side thereof, and thence runs along the side to a point specified; but ...