#### Theodore Westlake, Resp’t, *v.*Rosina Koch *et*al., App’lts.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

*1.*Deed—Resbbvation—Habendum.

In 1856 one Flagler conveyed, by full covenant warranty deed, to respondent’s grantor, a strip of land along and in the highway in front of his farm, of about 5U0 feet in length, thirteen feet wide at the centre and running to nothing at the ends. The land retained by Flagler was higher than the highway, and his grantee dug out the earth and built a retaining wall about three feet in height along the west line of the strip purchased, leaving the remainder in the highway. Respondent purchased the strip with the farm lying east of it, and both grantees maintained the wall till 1886, when appellants, who had purchased the farm of Flagler, by deed bounding it east by the highway, took possession of the lands on which the wall stood and refused to allow respondent to come upon them. The conveyance under which appellants claimed was subsequent in date and record to that under which respondents claimed. Respondent’s deed contained, in the *habendum,*this clause: “For the uses and purposes of a public road, or highway, and for no other use or purpose whatever, the said parties of the first part, reserving the same privileges on said public road, or highway, as they now have on the highway as at present located in front of the lands owned by said party of the first part.” The action was in ejectment and the trial court found title to the strip in question in plaintiff, with right to defendants to cross the strip through their gateway used by them. *Held,*that the title and right of possession is now in the respondent, with right to occupy the premises and maintain the wall.

3. Ejectment—Right to maintain fob lands in highway.

Lands subject to an easement, servitude or public use, may be recovered in ejectment.

Appeal from judgment in favor of plaintiff rendered after trial by the court at special term. The action was twice tried, with the same result, defendant having secured the second trial as of right in ejectment.

*Albert H. F. Seeger,*for app’lt; *Darwin W. Esmond,*for resp’t.

Pratt, J.

The respondent owns lands on the east side of the highway leading from Newburg to Marlborough; the appellants own the lands on the opposite side of the highway. Each of the parties claimed to own the fee to a strip of land of varying depth, running about 500 feet in length along the eastern boundary of the lands of the appellants, and forming a part of the said highway.

This action is brought to eject the appellants from this strip of land.

In 1856 the respondent’s grantor (Weed) bought this strip of land of the appellant’s grantor (Flagler). The deed of conveyance was the usual full covenant warranty deed, and conveyed the strip in question and also all Flagler’s right, title and interest *284in the highway. Immediately following the *habendum*clause in the deed was the following: “ For the uses and purposes of a public road or highway and for no other use or purpose whatever. The said parties of the first part reserving the same privileges on said public road or highway as they now have on the highway as . at present located in front of the lands owned by the said party of the first part.”

Upon receiving the conveyance- Weed graded the land and built a stone wall about three feet high along the western line of the highway and upon the strip so conveyed, for the purpose of retaining the embankment, which was higher than the road on that side.

From that time, some thirty years ago, the strip has been used as a public highway, and Weed and his grantee, the respondent, have from time to time, as the occasion required, repaired the wall.

The court upon the trial found that the wall was upon the land deeded by Flagler to Weed, and by him to respondent; that the respondent was the owner of the fee, and that the public had the right to use, as a highway, so much of said land as lay east of said wall. Such findings were clearly justified by the evidence. Weed testified that he had the strip surveyed at the time he took title ; that he agreed with Flagler as to the west line of the wall, and that the west line was several inches within the strip conveyed. It is not material by what description Flagler subsequently conveyed his farm to the appellant’s testator, for he had, more than two years before, conveyed to Weed the strip in question ; .and also his right in the highway. The deed to Weed was on record, so that the appellant’s testator had notice of what it contained.

The restriction in the *habendum*clause of Flagler’s deed to Weed is of no particular importance here, for the reason that the land has been used for the purposes therein expressed.

The only question that remains is whether an action in ejectment will lie, in case of ouster, where lands are held in fee subject to the right of the public to use as a highway. The decisions of the court of appeals have settled the question beyond doubt. They hold that the owner of the fee can maintain ejectment. *Wager*v. *Troy Union R. R.*Co., 25 N. Y., 526; *Reformed Church*v. Schoolcraft, 65 id., 150, 151.

The judgment appealed from seems to have been as favorable to the appellants as the facts warranted.

Judgment affirmed, with costs.

Barnard, P. J., concurs.