Wood v. City of Williamsburgh

By the Court, Scrugham, J.

The lands described in the complaint were not in the actual possession of the plaintiff, but of his tenants, at the time of the commission of the acts of which he complains; therefore he can only recover for such trespasses as were injuries to the inheritance; and of course this right depends upon his being seised of an estate in reversion in the land upon which the trespasses were committed.

Kings General Term, December 12, 1864.

John Hiller, at the time of his death, owned all of the land described in the complaint, and dying intestate, in-1848, it descended to his heirs at law, who, in 1850, executed to the plaintiff a deed, the boundaries in which include only so much of said land as lies northerly of the north side of South Third street; and unless at that time there was a street or road on the south side of the land described in the deed, the heirs of John Miller remained the owners of all the land described in the complaint which was not included in the boundaries given in their deed to the plaintiff; and, for aught that appears, were such owners at the time of the alleged wrongful acts, and at the commencement of this action. Thus the plaintiff would have no right to claim tor damages to that land. It is only by assuming that at the time of the conveyance to the plaintiff the land lying south of and adjoining that described in his deed was a street, that the plaintiff can claim title to it, and we have no proof of his ownership of this strip of land, except such ás is affolded by the evidence of its dedication by John Miller.

This does not show that it was laid out by him as a private street, for the benefit of himself and those to whom he might grant lands upon it; but that it was recognized by him as part of one of the public streets of the village of Williamsburgh. Being part of a street, the plaintiff's title was subject to the easement over it, and the referee was right in awarding only nominal damages “ for the filling in of the slip.”

The judgment should be affirmed.

Scrugham, Xott, Brovm and X. B. Barnard, Justices.]