APPEAL by the defendant, Bertram Ball, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of October, 1910, upon the decision of the court, rendered after a trial at the Westchester Special Term, perpetually restraining the defendant from depositing earth or other materials upon a certain strip of land.
James M. Hunt, for the appellant.
George E. Blackwell [William W. Scrugham with him on the brief], for the respondent.
This case was before this court on appeal from an order continuing an injunction pendente lite (137 A.D. 100), at which time
it was suggested that the trial might develop other facts than those presented by the affidavits, and it is evident from a reading of the record that this has been the result. There is practically no dispute as to the facts as the record now stands, if we may except the matter of the grade of the incline reaching down to the plaintiff's lower door in the 'old stone mill,' as it is known in the case, and on this point the evidence merely indicates that there has been some little change, the details of which are not pointed out, and which seem to have no real bearing upon the merits. The record as it now stands shows that on the 30th day of April, 1903, the plaintiff purchased from John B. Copcutt and others, as executors and trustees, certain premises in the city of Yonkers located upon a private right of way leading from Elm street. The purchase made by the plaintiff embraced the 'old stone mill,' which appears to have been erected upon the property some time in 1852, and the frontage of this purchase made by the plaintiff upon this private right of way was 462 feet and 6 inches long, the 'old stone mill' being located directly upon this right of way. The deed of conveyance, after describing the premises, continues: 'Together with a right of way over the strip of land Sixty-six feet wide lying easterly of and adjacent to the land above described, subject to the sewer easement therein of the City of Yonkers and to other rights of way over the same strip of land and to a right of way therein to the parties of the first part and their assigns, all such rights of way to be used in common.' A subsequent purchase from the same parties, which helped to make up the frontage of 462 feet and 6 inches, was made in 1906, and this was on the same terms and conditions in so far as it affected the right of way. In this same year the defendant purchased property bounded on this same right of way, on the opposite side from the premises of the plaintiff, the frontage being 1,040 feet. Later the defendant sold a portion of the premises to an electric lighting corporation, and at the time this controversy began the defendant was the owner of something over 923 feet of the frontage. The stone mill, now a part of a large carpet manufacturing plant, was constructed in a ravine. It is three stories high, the lower floor being below the general level of the right of way, but on an even grade with a portion of the same. In 1866 the city of Yonkers
constructed a bridge in such a manner as to cut off access to the stone mill on the northerly side, and it was then that the right of way southerly of the stone mill came into use. At the point where the right of way joins Elm street it appears to be comparatively level. A little distance away it divides, one side dropping to the level of the lower door of the stone mill, while the other side slopes gradually up toward the north. Taking our stand at the bottom of the ravine in front of the lower door of the stone mill, to get a team out we would start in a northerly direction up an incline. At a distance of 150 feet or more to the north we would reach the level of the easterly portion of the way, and then turning directly south we would reach Elm street by way of the upper slope, which latter passes immediately adjacent the premises of the electric lighting plant and the premises of the defendant. At the beginning of this controversy, as is manifest in this action, the defendant had asserted the right to fill in the lower portion of this right of way, excluding the plaintiff from the lower level of the stone mill, which is the loading point of the factory in sending out its product. The defendant had actually let a contract, and the work was under way when the present action was brought, and an order issued restraining the defendant from prosecuting the work. The defendant has been unsuccessful so far in convincing the court that he has a right to fill up this right of way to the exclusion of the plaintiff from its shipping facilities, and now appeals to this court.
The defendant urges on this appeal that 'the defendant as a grantee of a right of way over this strip of land sixty-six feet wide, has a legal right to fill in any ravine existing in the right of way and to supply any deficiencies in order to constitute a good road over that right of way throughout its entire length and breadth,' and cites Herman v. Roberts (119 N.Y. 37) in support of this contention. We are of the opinion, however, that the case does not support the defendant's contention. In that case the plaintiff purchased a right of way across the farm of the defendant for the purpose of reaching his country home; the object of the purchase for a carriage way was known to the defendant; the construction of the carriage way was attended with expense, and the defendant had asserted a right to make use of this private carriage way for the purpose
of carrying heavy loads, cutting and destroying the same and requiring expensive repairs to make it fit for the very purpose for which the plaintiff had purchased the same. In discussing this situation the court say: 'The grantee thus acquired the right to enter upon the land and construct such a roadbed as he desired, and to keep the same in repair. He could break up the soil, level irregularities, fill up depressions, blast rocks and not only remove impediments, but supply deficiencies in order to constitute a good road. He had a right to exclude strangers from its use, and to restrict such use of it by the owner of the servient tenement, as was inconsistent with the enjoyment of his easement.' This was obviously the law in relation to the facts there present; the plaintiff had purchased a right of way for the very purpose of making a private carriage way, and he had a right to do all things necessary to make his purchase available for that purpose; but that lacks much of holding that one who has been granted a right of way over a particular piece of land, to be used in common with others, has the right to fill in the premises so that he shall have a good road over the entire premises, to the exclusion of like rights in one who is equally entitled to the use of the right of way. The court in the very case relied upon by the defendant clearly points out the proper limitation. It says: 'In considering the extent of the rights of the respective parties in the grant of a right of way it is not proper to refer to the parol negotiations which preceded its execution or the colloquium accompanying it * * *; but we are to regard the language of the grant and, when that is uncertain or ambiguous, the circumstances surrounding it, and the situation of the parties with a view of arriving at the true intent of the parties, as was said in Bakeman v. Talbot (31 N.Y. 370): 'The doctrine that the facilities for passage, where a private right of way exists, are to be regulated by the nature of the case and the circumstances of the time and place, is very well settled by authority."
It is perfectly good law, no doubt, that where a grant of a right of way is made by deed, the extent of the right is to be determined, not by user, but by the terms of the grant. But the terms of the grant are to be determined by the ordinary rules governing the construction of contracts and statutes; we are to read ...