New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-10-18

the property OF plaintiff besn taken for pubic nse
within the meaning of the Constitution OF this state
The plaintiff claims that by the true construction Oh inc
deed from The city of his original grantors the oeu o'
Frontst. Qhen Waterst.J was included IN th' grant
and that he is now the Of the Zee OF cneha OF the
bed of Fronst in front OF his lots But If tls claim be
not sustained then he nssts that IN the orisina gI
OF the premises in question, the Glty OF Nen, n
oO ran n open street forever that this covenant
being for the benefit OF the abung lands Is one run
thereby ecnstitutes property within the meaning OF
Article L. Section of the Constitution which pr0ylaes
that private property shall not DC taken ior p"'o uo
The plaintifss lots Nos and o. AUDITING Frontst,
were formerly water lots land under water. THESE
lots the streets part OF larger tract owned
Vsy ed and laid ont hto streets and lots and nated
upon nap. In MAY and December, 1IJ3, the Guy
other lands De Peyser and tne other lot to one
Ellison. The boundary OF the grant on one side began at
Dockst. extending casterly the street. then
s Sa What It" would 1 be- the westerly limits Of the
streets mentioned said grant made and constructed
The plaintiffs lats described "a being upon the sue
and sundry other lots by Gerard Banoker dated INC
10Th day November l772 and filed In the Office OF te
town clerk, as will more fully appear WIN the appurte
nanoes thereto belonging aud apperalnlg l9e grantees
anted and agreed 10 widen Don 81 bheen leet
and 10 build aud construct good anu suostnnt hteee
a. widened, To make and construct wafer Nov
tai doe& or street on the outward boundary
of their respective grants; and the deed then declares
continue DO the free aud common passage Of aud
public streets and ways for the lnhaoitnts OF tue
said city and all others passing through or by the same
in like other streets OF the same city now are
OF lawfully ought 10 be-"
THE CONSTRUCTION OF THE GRANT.
The trial court finds that the grantees made and
constructed several streets mentioned in the grant,
ana that the plaintiff the OF scid lots, upon
which erected warehouse occupying the entire front
and four stories high The defendant insists, and the
trial court found. that by the true constluc
ton of the deed the bed OF Front-st
was excepted therefrOm and never passed TO the plain
tits original grantors The necessary elect OF TINS con
sirucon Of the grant Is to make the covenant fonnd
therein that several streets shall forever Thereafter
continue to be public Streets covenant Oh the cry anu
ant was made by Inc partv VINO held the title the
bed of ihe and therefore had power to control us
such power If tine bed of the included in the
grant and the title thereto passed 10 the grantees the
the covenant of the city. The Land DESIGNATED OH
the map street with other lands on bo SIDES Thereon
ana abtng thereon being conveyed to private persons
SolH nov ar v dcdicati"n OF ii v the owners to
the public use and its acceptance by the pubic Mere
% o. Hnlic street until accented by the public all-
thortes construction of the street by the grantees
ID performance OF the covenant on their part would
amount to dedication of the street to public use The
covenant of the city that the street when construc ted
should be and remain pubic street forever,
acceptance by the city OF the iandS thllS 9caicG
The City OF Oswego against the Oswego Canal Co., n
Y, PSI. Lee against sandy Hill 40 N u, Az
Relua against Rochester, 10 y. Y, 120.
Assuming the construction placed upon the grant or
below to be correct we have 10 consider the
effect OF such covenant III grant OF ilnd maze oy
municipal corporation having authority 10 ay our anu
open streets, and 10 acquire land for that purpose
Where individual conveys village or city lots desg
mated upon map Us AUDITING upon pubic stIect, the
map being referred to IN the deed Is well settled mat
the grantee acquosces against the granOr right or
way over the strip OF land referred 10 street al
having Hccn @ecepte ps e ne land IL deemed 10
nave been dedicated TO the public by the granor and he
thereafter appropriate the said lands TO any use
N. H.
James 40 \. y. 557. Smiles against Hastings, - ~
applies to the state municipal corporation where II
deals with its lands owner or proprie;ors The city Oh
In the case, First Wcnd., 262. the Court says:
" In such case the grantee OBTAINS
called street" In Second Wend -upraO IN such . case
purchaser shall have an easement orIght OF way IN the
the fu extent o. it, dimahsl0ns Ine Cy OF
New having power TO lay out and open streets and
10 acquire land for such purposes had power uecate
its lands TO such uses anu 70 Dad Itse by cove
lar street should forever be kept ~ public street
Wa S s street bT ma ant and
a pubic street and it was at the same
time agreed between him ana the graator
that ;aar piece of land belonging 10 me later on
sold, should be bu upon, but should be deemed
public property; and the graltOr executed to the |
grantee Gecd OF the land SOLD ana bono 9r the per
Torrance OF agreement as to me triangular piece OF
land both instruments being proved and record d. ii.
GfleTwari purchased OF me grantee e Idhd OPPOSITE
the triangular piece alter ueins informed ny blin
Chancellor; tHat IL. entitled to the benefit |
of the agreement and that the gTanee could |
new arrspecment with the holder Of lie a estate in
the triangular by which buildings shJuG Dc erected
thereon; mat tins right or privilege constituted an
easement IN the triangular piece IL w7 inrtner held
and pass grantee Of such estate IL also hed
that they also charge upon TIE estate o. me scr
yienf tenement and follow such an estate hands
OF those TO whom scryient tenement any pant
thereof conveyed The same question was again before
the ChanceOrin therases TIE trustees III NaeIONn
White AIT. COwen Bagg Where It WAS again held that
"a grantee lot adjoining pablo square. who mas
special covenant IRON The Original owner OF the ground
that shall be kept en- Tor the bceic OF is Land may
restrain the grantor from violating INC covenant IL was
also held that covenant III deed OF ahd 1t 20 erect
building common square owned by thc S1antee III
front the premises conveyed is covenant running
with the land and was the grant of privilege or ease
ment which passed to a subsequent grantee OF the |
without any special assignment OF the covenant
APPLICATION OF PRECEDENrs.
The principle OF these recently affirmed by |
this Court the OF the PhGng Insurance Company
against the Continental Insurance Company. In tie |
case lasted H. conveyed land to b. decd and the
grantee coyenantoG for himself, his rerese aYes aud
assigns, to be erected any building
or eIecl9 Oh S S'I diot si'i IN & ~ ,' J1,d az
coyehant both ia respect 70 the burden and the
benefit alDeres ana follows the respective par
title, and the right enforce the covenant
as,ed no the painti As subsequent grantee OF H. OF inc
dominant tenement and the covenant would De enforced
by court OF equity AGAINST a subsequent purchaser
covenant. These are directly IN point, and 10
follows that by the law OF this state interpreted and
held by its highest courts Tor the last ity years without
criticism doubt the grantees OF the city by fore Of
their grant acquired the right have
frOntsL forever public street. The |
street has become what known to the
common as the eervient tenement aud the lOts
abutting thereon the dominant tenement such seryi-
tude constitutes private easement IN the bed OF the
street attached lots abutng thereon and passed
the plaintiff the owner OF such lots Tnat
property within the meaning OF the Constitution
cannot be doubted.
thus was expressly adiudcated In this Court in the
case of Arnold the Hudson River EairOd Company
Arnold mail factory, together with the right 20
take certain quantity Of water creek ana
cLIrl...n L.Al.r. LL-L .Ln..I- l