Taylor v. Hepper

We think this action was correctly decided on the merits by the justice before whom it was tried. We understand the law to be well settled, as stated in the opinion of Mr. Justice Weight, in Fonda v. Borst, * and as follows: “ Where the proprietor of lands surveys, maps and lays out such lands into lots (numbering them), with streets designated, named and put down on the map, as between him and a grantee of a lot bounded on one of the designated streets, his conveyance is per se a dedication of the street to the use of his grantee, as a street. As between the grantor and grantee it is a street, which the latter has a right to use as such as soon as the conveyance is made to him. By force óf the grant, an easement is attached to the land granted, which thereby becomes an appurtenant, viz.: a right of way on and over the strip designated as a street, for the use of the lot conveyed.” The rule thus clearly and tersely stated, fully covers and applies to this case. It is true, the majority of the court did not coincide with Mr. Justice Weight as to the application of the principle, stated by him, to the case then under consideration; but that case † was decided upon its peculiar facts, which, the majority of the court apparently held, took it out of the well settled general rule; and the fact that the ease does not appear among the authorized reports of the Court of Appeals, affords evidence that the case was understood by the court to have been decided on its peculiar circumstances, and not to afford a general rule of law, as authority in other cases, not precisely resembling that case in all its facts. The fact that, in the conveyance of lot twenty-nine to John S. Taylor, one of the *652grantees of the others, reference was made to the barn obstructing John street, and reserving the use of a part of lot twenty-nine as long as the barn stands there, even if it is to be construed as an implied consent that the barn may stand there for an indefinite period, can only apply to and abridge the rights which the grantee got under the conveyance of lot twenty-nine. It does not purport to be, and cannot operate as, any reservation of or limitation upon the rights acquired under previous deeds of the other lots. The proof of the parol promise, by the grantor, to remove the barn in a reasonable time, did not operate to add anything to the effect of the deed, or in any manner change its operation; The fact of such a promise, and its non-performance, only went to show the propriety and necessity of commencing this action in equity, and might have affected the question of costs, which were in the discretion of the court.

The judgment is affirmed, with costs of the appeal.

Present — Tappen and Talcott, JJ.

Judgment affirmed, with costs.