#### Joseph Schonleben and Mary P. Schonleben, His Wife, Appellants, *v.*Harold Swain, Respondent. Harold Swain, Respondent, *v.*Joseph Schonleben and Mary P. Schonleben, His Wife, Appellants.

First Department,

February 11, 1909.

Beal property — conveyance of land bounded by exterior line of street — when fee to bed of street does not pass—- extinguishment of private easements on closing street under chapter 1006 of the Laws of 1895 — when subsequent grantee does not acquire easements.

Where a conveyance bounds lands by the exterior line of an abutting street instead of by the street itself, the fee of the street does not pass to the grantee unless there be circumstances indicating a different intention.

Where a street is closed under chapter 1006 of the Laws of 1895, not only public but private easements are extinguished, contrary to the common-law rule. Hence, where an owner subsequently conveys lands bounded by the exterior line of the former street his grantee obtains no private easement of light, air and access.

Such private easements over lands embraced in the closed street are not recreated by the grantor, merely because in describing the property he makes a reference to an old map on which the former street was delineated, where the old street had been discontinued at the time of the conveyance and the bed thereof had been inclosed by a fence running on the exterior line of the street and used by the grantor as a garden.

The question of whether or not a grantor conveying property bounded by a street grants easements therein is one of intention tó be ascertained not from the description alone, but from the visible condition of affairs when the conveyance was executed.

*522Appeals by Joseph Schonleben and another, the plaintiffs in the first and theMefendants in the second above-entitled actions, from a judgment of the Supreme Court in each action in favor of Harold Swain, entered in the office of the clerk of the county of Hew York on the 27th day of March, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.

*Harlan F. Stone,*for the appellants.

*Benjamin N. Cardozo [Harold Swain*with him on the brief], for the respondent.

Scott, J.:

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 Hew 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 inap of the village of Mount Eden on which was laid out a street designated as Fifth avenue. The property between the streets and 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 ás fronting on and bounded by Fifth avenue. The plot of land in dispute lies in front of .lot Ho. 102 and comprises one-half of the land designated as Fifth avenue opposite the lot. In 1879 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 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 Hew York (within which the *523property in question is located) with power within these wards to lay out and locate new streets, roads, avenues and public squares and jfiaces, and with the concurrence of the board of street opening and improvement to change or close established streets, roads, avenues and public squares and places. By chapter 712 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, Hawk-stone street, Grand boulevard and Concourse, and Lockwood 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 of the Laws of 1895 further provisions were enacted regulating the closing of the streets. In March, 1897, commissioners were duly appointed in proceedings to open the streets specified on the map filed in November, 1895. In this procéeding 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 of the Laws of 1895. These commissioners, among other things, reported as follows : “ We further report that our awards herein are based on the assumption that upon the discontinuance and closing of the streets or 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 or 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 owner 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 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 *524when 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. .

At the time of the discontinuance'of Fifth avenue as a public street lot Ho. 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, lie 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 Ho. 103, onto which he moved a house whicli he occupied. He fenced off that portion of the bed of Fifth avenue, or nearly all of it, which lay in front of lot Ho. 102, and used it as a vegetable garden, running the fence along the street line between lot Ho. 102. and the bed of Fifth avenue in front of it for about two-tliirds of the width of the lot. This condition of affairs continued until he sold lots Hos. 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 Ho. 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 April, 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 Ho. 102; second, that if he .did not convey a fee there remained appurtenant to lot Ho. 102 private easements of light, air and access which had not been extinguished by the proceedings which resulted in the closing of Fifth avenue; and, 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 Ho. 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 *525had 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 Mount 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 point of intersection of said *westerly side*of Fifth Avenue with the southerly 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. *Hath*away, 15 Johns. 447 ; *English*v. Brennan, 60 N. Y. 609 ; *White's Bank of Buffalo*v. Nichols, 64 id. 65 ; *Kings County Fire Ins. Co.*v. Stevens, 87 id.*287 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) 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 to 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 not 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 a highway or commences at a point upon one side thereof and thence runs along the side to a point specified, but where the premises aré bounded by, on or along a highway, or running along a highway without restricting or controlling words the instrument must be construed as conveying the grantor’s title, in the land to the center of the *526highway.” (P. 203.) Tire respondent was careful in his deed to the appellants to bring himself within the foregoing authorities by bound* ing the property conveyed by the westerly side of Fifth avenue, thus excluding from the operation of the conveyance any part of .Fifth avenue. The second contention of the appellants, that notwithstanding, the closing and discontinuance of Fifth avenue as a public highway' there still remained private easements therein appurtenant to the abutting property, is, as we think, equally untenable. The law of this State recognizes a distinction between public and private easements in a public highway, and it has been held that the discontinuance of a street by act of the municipal authorities, while it destroyed the public easements therein, left the private easements of the abutting, owners unaffected and unimpaired. *(Holloway*v. Southmayd, 139 N. Y. 390.) To remedy the confusion arising from the application of this rule the Legislature passed chapter 1006 of the Laws .of 1895 under which,- as it has been held, when a street is discontinued under the provisions of that statute all easements,.both public and private, are destroyed, the abutting owner being compensated for the loss of Ids private easements. *(Matter of Mayor,*28 App. Div. 143; affd., 157 N. Y. 409 ; *Matter of Mayor, Vanderbilt Ave.*95 App. Div. 533 ; 119 id. 882; affd., 189 N. Y. 551.) - It is clearly shown by the report of the condemnation-commissioners quoted from in the statement of facts that they made their awards upon the theory and assumption that all easements, private as well as public, were acquired and extinguished by the closing of Fifth- avenue;, and they actually made a substantial- award to the appellants for their private easements appurtenant to lot Flo. 101 adjoining the premises in question. Whether or not. -Shaw, Swain’s grantor, was awarded damages for the private - easements appurtenant to lot Fib. 102 does not appear and- is not important. He had and reserved by his deed the right to such damages and it is of' no moment whether he pursued 1ns claim or not, for the street had been actually discontinued long before lot Eo¿ 102 came into-the ownership of the appellants. We are, therefore, of the opinion that the private easements of air, light and access over the lied of what had been Fifth avenue, formerly appurtenant to lot Ee-. 102, had been extinguished before Swain conveyed that lot to the appellants, and consequently that no. such private easements passed to *527appellants "by his deed. The third contention of the appellants is that by his conveyance Swain recreated and re-established easements of light, air and access over the bed of what had been Fifth avenue in favor of lot Mo. 102 conveyed to appellants. This contention is based upon the fact that in the description of the property conveyed reference is made to the Mount Eden map on which Fifth avenue is laid out and indicated as a public street, and that Fifth avenue as shown on that map constitutes one of tlie boundaries of the property conveyed. The appellants invoice in aid of this contention the general and well-established rule that when property is described as bounded upon a street an easement for street purposes is impliedly created by the grantor in favor of the grantee over the designated street, whether then actually existing as a street or merely indicated as intended to be used as a street. While this rule is one which is generally applied, it is not inflexible or universal. The question whether or not a grantor conveying property bounded upon a street grants easements therein is one of intention, to be ascertained not from the description of the property alone, but also from the condition of affairs as they visibly exist when the conveyance is executed. The question in each case is whether the reference to the street or avenue was made only for the purposes of identification and location, or with the design to include street easements in the conveyance. *(Matter of Brook Ave.,*40 App. Div. 522; affd. on opinion below, *161*N. *Y.*622; *Matter of One Hundred & Sixteenth Street, 1*App. Div. 436.) In the present case, when the conveyance to appellants was made, Fifth avenue had been legally discontinued by the municipal authorities, and could not again be opened and used as a public street without most improbable action by suph authorities. The bed of Fifth avenue in front of the premises conveyed had been inclosed, and openly and notoriously applied for several years to uses quite inconsistent with its use as a highway, and the appellants themselves had applied to a like inconsistent use a part of the bed of Fifth avenue lying in front of and adjoining the lot owned by them. Upon a very similar state of facts, when after a statutory closing of a highway, an owner of premises abutting thereon conveyed them, bounding the land conveyed by the discontinued highway, the Court of Appeals said: “ Merely bounding premises by a public highway for purposes of *528description, and where it is referred to as any fixed mark or monument might be, is very different from selling by reference to a map or plat on which the grantor has laid out streets and made a dedication and exposed himself to the equities of an estoppel; and then the road was in fact closed when the deed was made to Brennan, who knew or was bound to know that the public highway no longer existed, and must be presumed to have bought and fixed his price in view of that fact.” *(King*v. *Mayor, etc., of N. Y.,*102 N. Y. 171, 175.) Under all the circumstances of this case, we are of the opinion that the reference to Fifth avenue in the deed from. Swain to the appellants was merely made as to a convenient monument, and that it was not intended by the grantor, nor understood by the grantee, that easements for street purposes were included in and recreated by the conveyance.

It follows that the judgments appealed from were right, and must be affirmed, with costs.

Patterson, P.J., Ingraham, Laughlin and Houghton, JJ., concurred

Judgments affirmed, with costs.