Potter v. Iselin , 38 N.Y. Sup. Ct. 134 ( 1883 )

Barnard, P. J.:

The right of way conveyed by deed by Davenport to Banks & Yoorhies was not a right in gross and personal to Banks & Yoorhies, but was an appurtenant to the land conveyed by the deed. ' As such it passed to subsequent grantees of the property without any mention of the right of way in the deeds. As to Davenport, by his deed to Banks & Voorhies, Beach avenue was to be an open street forever. The authorities need not accept or work it, and without an acceptance the city, village or town would not be liable for the neglect to work it. As to the grantee and all successors in title, the street was Beach avenue, 100 feet wide from Davenport avenue to the sound.

The judgment should be reversed, with costs, and a new trial granted.

Pratt, J.:

"Where the owner of land lays it out into village lots, intersected by streets and avenues, and sells lots by reference to a map, which he has made and filed, on which such streets are delineated, th map becomes a part of the deed, and the streets on the map become an easement annexed to the estate granted. (Taylor v. Hopper, 62 N. Y., 619.) As between the parties, the dedication becomes complete on the delivery of the deed; and, thereafter, no act of the grantor can diminish the effect of the conveyance. (Id., 650

We think this principle requires the reversal of the judgment. The right of access to the waters of the sound — manifestly of much importance to the owners of lots having no water front — was effectually secured to them by the conveyance, which not only referred to the map, but granted forever a right of way over Beach avenue. v

■ The right thus created became appurtenant to the land conveyed, and passed with it under subsequent conveyances, though not expressly referred to. Such a right could not be abandoned by parole; the testimony of Lawton upon that point was, therefore, not competent to establish a surrender.

The judgment should be reversed, upon both law and facts, and a new trial ordered, with costs to the appellant.

Judgment reversed, with costs to the appellant.