majority">By the Court, Rosekrans, J.

There can be no question as to the correctness of the referee’s findings of facts and conclusions of law. The plaintiff’s grantors are the original owners of the lots conveyed to the plaintiff, and of the strip adjoining those lots on the south, called South alley. Before the conveyance to the plaintiff, they had made a map of the lots and alley, and filed.it, and the conveyances bounded all the lots “along the north line of South alley,” and conveyed them as lots known and distinguished on a map of village lots, owned by the grantors, by their numbers, with the appurtenances ; and the simple question is whether, under such a conveyance, the grantor, or those deriving title from him to the land described as an alley, can inclose it and exclude the plaintiff, and his heirs and assigns, from using the alley as a way.

In the case of Badeau v. Mead, (14 Barb. 328,) Strong, J., in delivering the opinion of the court, says: “I consider it to be well settled that where the grantor bounds the lands which he conveys, by roads, whether existing or to be made, over lands retained by him, he conveys to the purchaser, as incident to the grant, a right to use such roads as described, when they adjoin the premises, and, if necessary, out. to the common highway. Such right becomes appurtenant to the land conveyed.” In that case, the grantor had laid out a tract of land into village lots, and had made and filed a map, upon which the lots, and streets, and alleys adjoining them were described; and the conveyance of the plaintff’s lot wa.s in almost the precise language of the conveyance to the plaintiff in the present case. It conveyed the lot by its number, and bounded it by the southerly line of an adjoining street, and conveyed the appurtenances. The grantor obstructed the end of the *157street, where it entered the White Plains road. In reference to the street which was obstructed by the grantor, Strong, J., said: “ The plaintiff has a right to an unobstructed way to the White Plains road, and can have the fence across it removed, when he seeks for it in an appropriate proceeding.” The case was approved by the Court of Appeals, in the case of Fonda v. Borst, (2 Keyes, 51.) There the defendant had laid out a tract of land into village lots, and had filed his map and conveyed to the plaintiff’s grantor a lot by its number, as described on the map. Brown, J., delivering the opinion of the court, repeats the rule laid down in Badeau v. Mead, that “ when a grantor bounds the lands which he conveys, by roads, whether existing or to be made over the lands retained by him, the purchaser takes, as an incident of the grant, the right to the use of such roads.” This, he says, “is the'rule as to rural property, so that whether the servitude which the plaintiff claims be a rural or an urban servitude, to this extent his claims could admit of no dispute.” In the cases cited, and in the one now before us, the reference to the map upon which the lots conveyed were described, introduced the map into the deeds, and made them a parcel of the deeds, and the several grantees were entitled to the use of the streets, along which their lots were described as lying, as appurtenances to the grants.

[St. Lawrence General Term,October 5, 1869.

The plaintiff is entitled to the unobstructed use of the alley-way along which his lot is described as lying, upon-the map. (See opinion of Wright, J., in Fonda v. Borst, supra.)

The judgment should be affirmed.

James, Rosekrans and Potter, Justices.]

Citation profile

Relationships

How this case has been treated — in progress