Taylor v. Hepper , 5 Thomp. & Cook 173 ( 1874 )

Talcott, J.

We think this action was correctly decided on the merits by the justice before whom it was tried. We understand the law to be well settled as stated in the opinion of Wright, J., in Fonda v. Borst, 2 Keyes, 48, as follows: “When the proprietor of lands surveys, maps and lays out such lands into lots, numbering them with streets designated, named and put down on the map, as between him and a grantee of a lot bounded on one of the designated streets, his conveyance is per se a dedication of the street to the use of his grantee as a street. As between the grantor and grantee it is a street, which the latter has a right to use as such as soon as the conveyance is made to him.

“By force of the grant an easement is attached to the land granted, which thereby becomes an appurtenant, viz., a right of way on and over the strip designated as a street for the use of the lot conveyed.”

The rule thus clearly and tersely stated fully covers and applies to this case. It is true the majority of the court did not coincide with Judge Weight as to the application of the principles stated by him to the case then under consideration, but that case (Fonda v. Borst) was decided upon its peculiar facts, which the majority of the court apparently held toot?it out of the well-settled .general rule, and the fact that the case does not appear among the authorized reports of the court of appeals, affords evidence that the case was understood by the court to have been decided on its peculiar circumstances, and not to afford a general rule of law as authority in other cases not precisely resembling that case in all its facts.

The fact that in the conveyance of lot twenty-nine to John S. Taylor, one of the grantees of the other, a reference was made to the barn obstructing John street, and reserving the use of apart of lot twenty-nine “ as long as the barn stands there,” even if it is to be construed as an implied consent that the barn may stand there for an indefinite period, can only apply to and abridge the rights which the grantee got under the conveyance of lot twenty-nine. It does not purport to be, and cannot operate as, any reservation of, or limitation upon, the rights acquired under previous deeds of the other lots.

The proof of the parol promise by the grantor to remove the barn in a reasonable time does not operate to add any thing to the effect of the deed, or in any manner change its operation. The fact of such a promise and its non performance only went to show the propriety and necessity of commencing this .action in equity, and might have affected the question of costs, which were in the discretion of the court.

The judgment is affirmed with costs of the appeal.

Judgment affirmed.