Beach v. Hudson River Land Co.

Pitney, V. C. There was no assertion or contention, or room for any, that any fraud or misrepresentation was practiced upon Ryan in the making of his contract, or that he was not fully acquainted with the premises and the existence of the highways thereon. Moreover, he is a member of the bar of New York and presumed to be acquainted with the law of the land. The contract of sale was therefore a fair one. If he did not intend at the time he entered into it to pay for that part of the land included within the highways, he should have made provision for it at that time. The general description found in the contract includes the high-ways. The description by metes and bounds found in the actual conveyance is in precise accord with the general description contained in the contract. On all these points there is no dispute, so that if the case stops just there, it seems to me, there would be no room for doubt. But it does not stop there. It appears, by the letter of Judge Garrick of 10th of January, 1898, prior to the delivery of the deed and of the mortgage, that the question of how the acreage was to be arrived at, and whether the amount of acreage included within the limits of the highways was to be counted and paid for, was raised between Mr. Ryan and Judge Garrick, and Judge Garrick stated in that letter, in effect, that he should insist that the amount in the highways should be included and paid for. Now, in that state of affairs the bond and mortgage are executed, and by their explicit terms, as above set forth, the quantity of land in the limits of the survey, “exclusive of the part owned by the Northern Railroad of New Jersey,” should be the basis of the consideration-money. The language states, with the utmost [434] precision, jnst what part of the lands included within the survey should be counted in making up the consideration-money. It seems to me that it is impossible' to escape this result. The provision for the exclusion of the amount occupied by the Northern Railroad of New Jersey is conclusive evidence that the land included within the limits of the highways should be included. The maxim, inclusio unws exclusio alterms,, applies. In answer to this, the counsel for defendants rely upon the little contract of January 13th, añade at the tune the deed and mortgage were- severally delivered, and it may here be observed that the deed of conveyance contains no covenants whatever. Now, I am raoaable to- find aaaything in that little contract which alters the situation as it is found in the deed and conveyaaaoe, except that it anay reserve to Mr. Ryan the right to sue the executors for a breach of contract in not conveying all of the laaad free aaid clear of encumbrance, and that right I shall assuaaae iaacluded the right to set off such damages against the aanouait due oaa the anortgage upon a final accouaitiaig. There is aaothing in the coaitract just naaned which justifies or in any way sustaiais the notioai that iaa computing the area of the land eontaiaaed within the descriptioai for the purpose of ascertaining the coaasideration-anoney, any allowance was to be made for the aanount iaicluded in the highways. Nothiaog iaa the origiaaal contract supports that notion, and nothioag in the conveyance or anortgage saapports it. It simply says that the amount of the board and mortgage is to be adjusted arad the fulfillment of 'the contract is to be completed according to the terms contaiaaed in said coaatract. That has been done with great care and accuracy. By the'terms of the contract, the highways are uaadoubtedly included. It seems to me that the point of view most favorable to the defendant from which to consider the effect of the contract of January 13th is to suppose the complainant was here now with a bill for -the specific performance of the original contract of 1897, arad I will so consider it. ■The universal practice is, arad always has been, in New Jer [435] sey, to include in • a conveyance, without excepting or noting the same, all highways which cross or lie upon the land conveyed, and where it does not appear by the description that a highway-is included1 the presumption is that the title goes to the centre of any highway adjoining the premises conveyed. I am not aware of any case in New Jersey - where a considerable tract of land, like the present, has been sold by the acre; that in the absence of a specific provision any deduction has ever been made in the contract price, either on specific performance or on foreclosure of a purchase-money mortgage, on account of the existence of highways within the limits of the survey, where those highwaj's were open and visible to the eye. I am not aware that it has ever been decided in New Jersey that the existence of a highway upon a tract of land, and included within the metes and bounds thereof, amounts to a breach of covenant against encumbrances. It has been held in Pennsylvania that it does not, and I believe; also, in New York. Rawle Cov. Tit. (2d ed.) 141-147 (1854). And, certainly, the sentiment of the profession in this state is'to that effect, else there would have been innumerable actions for damages for breach of warranty on account of "the existence of highways on or across lands. The simple reason for this is that they are patent encumbrances which cannot be removed, and an action for damages on account of their existence would produce, in ninety-nine cases out of a ..hundred, no more than nominal damages. The eases referred to by counsel for 'the defendant on shortage of acreage have no application here. There is here no shortage of acreage nor any defect of title to any part of the premises, except, indeed, that conveyed to the railroad company. Title to the part covered by the streets is completé, subject, however, only to the encumbrance of the public highway. The utmost that defendant could claim, under the most favorable aspect that could be taken of its case, would be that it was entitled to a reduction from the purchase-money for the amount which the encumbrance of the highway reduced the land in [436] value. No evidence was produced on that point, but it was well said by complainant, in his argument, that it is plain that the existence of the highways increases, rather than diminishes, the value of the property.. A glance at the map shows that the taking away of any one of the three highways which cross the land’would be a. positive detriment to it for the purpose for which it was undoubtedly purchased, viz., the laying of it out in building lots, and the taking away of all the highways would well nigh ruin it for that purpose. I will advise a decree according to complainant’s contention,