Wheeler v. . Clark

Church, Ch. J. It cannot be and is not seriously claimed, but that the Cripplebush road was legally discontinued as a public highway, under and by virtue of the legislative acts of 1835 and 1839. The findings of the referee, which are abundantly supported by the evidence, are conclusive upon this point. The plaintiff claims, however, that he is entitled to a private right of way over that portion of the old road -in front of the defendant’s premises, and extending to the center; and he predicates this right upon two grounds, viz., by prescription. and by grant, or a reservation in the nature of-a grant. The answer to a claim by prescription is, that there could not be the requisite user under an adverse claim of right against the owner. The rule is, that in order to give a user this effect, it must be “ while all persons concerned in the estate,- in- or out of which it is derived, are free from disability to resist it, and are seized of the same in fee, and in possession during the requisite period.” (2 Wash. Real Property, 42.) That the defendant was powerless to resist the use of the road by the' plaintiff while it was- a public highway is obvious; and it continued such highway down to a short period prior to the commencement of this action. The material facts as to other ground are: That in 1835, *271 one Sandford owned the four lots now owned by the plaintiff and defendant, and conveyed the same by numbers, and also by metes and bounds, by a deed containing this clause: “And also the land forming the streets, avenues and roads adjoining and in front of the said lots,' to the middle of such streets, avenues and roads, and subject to the use of said land, by all the owners of lots laid down on said map, and by the public generally, as public streets, avenues and roads, and the said streets, avenues arid roads to be opened and remain open accordingly.” Subsequently, one Hand became vested with the title to all the lots, but from different sources, and in 1845 conveyed the three lots owned by the defendant, by deed containing the same clause above specified; and the ■defendant, through several intermediate conveyances, in 1865 received a deed of these lots, describing them by metes and bounds, and extending to the center of the “ old Cripplebush road.” In 1864, Hand conveyed one lot to the plaintiff by metes and bounds. Neither the deed to the plaintiff nor defendant contained any limitation to the use of the premises, or any reference to the clause above quoted. Without discussing the legal effect which the clause above quoted might have upon the claim, of the plaintiff to a private right of way over the defendant’s land, if such right was clearly embraced in it, we think it cannot properly be construed as intending to reserve any such right. The language upon which the claim is based follows the transfer of the fee in the streets to the grantee, and was, doubtless, intended to guard against any liability in consequence of such use of the streets by the public, and such- is its fair import.- The owners of the lots and the public were to have the same rights, which were to use them as public streets, avenues and roads, and they were to be kept open accordingly, that is as public streets. There is no intimation in the language of any right additional to that of the public, or that any of the parties would possess any after the streets ceased to be used by the public. We must presume that those interested understood that they held Subject to public .necessity and authority. If *272 not, it is remarkable that a different purpose was not in some form expressed; and it is significant, that both these parties received conveyances which did not contain a word upon this subject. At that time, this old road was virtually closed as a public highway, by authority of law, the actual closing only being delayed until Nostrand avenue should be open and fit for travel. The parties are presumed to have received their deeds with this knowledge, and if the plaintiff supposed that he was entitled to an easement, which his grantor could convey, it'would have been natural that he should have required some mention of it, instead of relying upon a conveyance with a general description. However this may be, we concur with the General and Special Terms, that a proper construction of the clause in question confers no such right as the plaintiff claims. The judgment must be affirmed. All concur. Judgment affirmed.