Opinion
Argued May 17th
Decided May 23d 1871
Amasa J. Parker, for the appellant. A. Pond, for the respondent.
The exception to the finding, by the referee, of the fact that Louisa A. Maxwell, at the time of and prior to her conveyance of lots forty-eight, forty-nine and fifty to the plaintiff, was the owner thereof, and of the piece of land known as South alley was not well taken. To render this exception available in this court, the fact must be wholly unsupported by proof. ( Mason v. Lord, 40 N.Y., 476; Wegman v. Childs, 41 id., 159.) It must appear that the case contains all the evidence given relating to such facts, otherwise it will not affirmatively appear that none was given tending so establish it. In the present case, it appears that a map was given in evidence of the lands in question, and of other lands in the possession of the plaintiff's grantors, showing that such lands had been surveyed and subdivided into lots by them. This map is not found in the case. It may have contained evidence as to the ownership as between Mr. and Mrs. Maxwell. But assuming that it contained no such evidence, the facts in question cannot be said to be wholly unsustained by proof as to South alley; it was proved that Mrs. Maxwell gave a quitclaim deed thereof to the defendant, who went into possession claiming under this deed. This, as against the defendant, was sufficient evidence that Mrs. Maxwell owned the land prior to and at the time of giving the deed. This deed was given to the defendant subsequent to the grant by Mr. and Mrs. Maxwell to the plaintiff of lots forty-eight, forty-nine and fifty. The conveyance to the plaintiff was by a joint warranty deed from both Mr. and Mrs. Maxwell, and was, therefore, evidence that they claimed the land in common, and their possession with this, would sustain a finding that they were so seized. If Mrs. Maxwell united in this conveyance as part owner of the lots for the purpose of conveying such interest therein, and was at the time the owner of South alley, her deed to the plaintiff gave him the same right of way in the alley, as though she had been sole owner of the lots, and had solely deeded them to the plaintiff. The defendant gave no evidence as to the title to the lots or of South alley. No motion was made to dismiss the complaint for want of proof of Mrs. Maxwell's title to the lots conveyed by her to the plaintiff. There is no more reason for a presumption that Mr. Maxwell was the owner, and that Mrs. Maxwell united with him in the deed for the purpose of extinguishing her inchoate right of dower, than for a presumption that she was the owner, and Mr. M., her husband, united in the deed for the purpose of extinguishing his interest as tenant by the curtesy. As above remarked, the only legitimate presumption was that they were equal owners in common of the land. The question whether the lot conveyed to the plaintiff was bounded by the north side of or the center of the alley, is not material to the right claimed by the plaintiff in the action, which was a right of way over the alley, and the correctness of the legal conclusion of the referee upon this point will not be examined. The judgment declaring the plaintiff entitled to a right of way over the alley cannot be sustained upon the ground that he acquired the right as a way from necessity, for the reason that access might be had from the land conveyed to public streets; nor can it be sustained upon the ground that the alley had been dedicated to the public as a highway, for the reason that it had never in any way been accepted or used as such by the public. The only ground upon which the judgment can be sustained, is that the plaintiff acquired a right of private way over the alley as appurtenant to the lands conveyed to him by the Maxwells. This right had not become appurtenant to the lands in consequence of a previous user in connection therewith, the alley never having been so used. The substantial facts proved and found by the referee, are that the Maxwells, prior to their conveyance to the plaintiff, were the owners of a parcel of land, embracing the lands conveyed to the plaintiff, South alley and other lands; that they caused the said parcel to be surveyed and subdivided into lots, of suitable size for building purposes, and a map thereof to be made, upon which the lots were designated by numbers, and South alley designated as an alley, and afterward conveyed lots forty-eight, forty-nine and fifty to the plaintiff, describing lot fifty as all that certain lot situate in the village of Saratoga Springs, known and distinguished as lot number fifty on a map of village lots owned by the parties of the first part, referring particularly to the said map, and specifying the boundaries of the lot as laid down thereon, referring as follows to South alley. Thence to a stake in north line of South alley; thence along the north line of South alley, etc. South alley was laid down on the map as an alley running along the boundary of the lot sixteen feet in width, continuing along past the rear of lot fifty, and along other lots owned by the Maxwells. This conveyance of the lot, so made in reference to the map designating the strip as an alley, gave the plaintiff a right of way over the alley to the rear of his lot, as against his grantors and their subsequent grantee of the alley. ( In re Mayor, 2 Wend., 472; Smyles v. Hastings, 22 N.Y., 217; Badeau v. Mead, 14 Barb., 328.) The question whether the plaintiff had not an adequate legal remedy for the disturbance of this right of this way does not arise, as it was not insisted upon in the answer. ( Roy v. Platt, 4 Paige, 77; Truscott v. King, 2 Seld., 147.) The rights of the parties were established by the conveyances. This renders an examination of the exceptions taken by the defendant to other evidence introduced by the plaintiff unnecessary.
The judgment appealed from must be affirmed, with costs.
All concurring, judgment affirmed.