Hopkinson v. McKnight

*425 The opinion of the court was delivered by Elmer, J.

The plaintiff complains of the defendant for-shutting up and obstructing a certain alley and street, claimed to adjoin and to be appurtenant to the plaintiff’s close; and the question now to be decided is, whether the facts agreed, upon entitle him to maintain his action.

Omitting any reference to the mortgage and the proceedings under it, which are stated in the case agreed upon, but which do not appear to be important, it appears that on the 17th day of October, 1846, Jane W. Fraser was the owner of a tract of land and premises in tiie borough of Bordentown, extending from Third to Second streets, which ran north and south, the south line of which abutted on lots of land owned, by Henry Beckett, the plaintiff, and others, which lots had their fronts on a street running east and west. At the date-aforesaid, she sold and conveyed to the plaintiff a parcel of her said tract, described in the deed as beginning at the northwest corner of a lot of land belonging to Henry Beckett,, thence running along other land of said Jane W. Fraser,, north, sixty feet to a stake standing eighty-three feet from Third street, and bounding on an eight foot alley; thence west, along said eight foot alley seventeen feet to a siakej thence, still west along a continuation of said alley or street, said street being thirty feet wide, to a stake; thence south, sixty feet to a stake, corner to other land of said Hopkinsou; thence east, along said Hopkinson’s land one hundred and thirty-three feet, to the place of beginning. Shortly after-wards Miss Fraser sold and conveyed that part of her land which laid north of Beckett’s lot and between Third street- and the parcel sold to the plaintiff, to the said Henry Beckett, and in her deed to him abuts it on the north along an eight foot alley. The defendant became the owner of the other part of Miss Fraser’s land in 1852, and has since enclosed it. It is stated in the case, in connection with the conveyance to the plaintiff, that the land conveyed “ is described as bounded upon an alley and street proposed to be laid out;” and it is further stated that “the street and. *426 alley mentioned in the conveyance to the plaintiff and said Beckett were never opened and used as a street.” Had such alley and street been opened as referred to, they would have ■extended from Third street nearly half way to Second street.

The-cases relied upon in the argument, in support of the plaintiff’s claim to the use of the alley and street referred to in his deed, are cases where it was held, that the circumstances showed that the street in question had been dedicated to the public use. Where the party owning land in a city or village lays off streets, sells lots in conformity with a plan made public, especially if a map made by the public authority is referred to, and the streets are opened and used, it is justly held that he thereby dedicates the streets so laid off as public highways. Den v. Dummer, Spencer 86; Smith v. The State, 3 Zab. 712; Cincinnati v. White, 6 Peters 438 ; Wyman v. Mayor of N. Y., 11 Wend. 493 ; Matter of 29th street, N. Y, 1 Hill 189 ; Walter v. City of Worcester, 6 Grey 548.

But no facts are stated in this case which will justify us in holding an alley or street to have been thus dedicated. No reference is made to a street extending through the block from Third to Second streets, the west line of the plaintiff’s land not being half way between these streets; nor do any ■circumstances show an intention to open a street as a public thoroughfare. We are not informed who proposed to lay ■out the alley and street referred to. For anything that appears, the plaintiff may have intended to incur that expense; or, as is more probable, such an alley and street may have been proposed to be opened by the public authorities of the borough. It is expressly stated, after the lapse of nearly twenty years, that they were never in fact opened and used; that is to say, no such alley or street ever existed. They are not alleged to be ways of necessity. They do not appear to have been laid down upon any public or private map of the premises. The question then resolves itself into this: ■does the description in the plaintiff’s deed, of itself or in connection with the description in the deed to Beckett, amount to a grant to the plaintiff of the alley and road *427 described, or of a right- of way, or to a covenant that he shall have such a right ?

As to the coincidence of a similar description in two deeds for adjoining parcels of land, it can have no effect upon the case before us, unless it would justify us in holding that there was a dedication of an alley and road to the public use. No authority has been produced for the projiosition that the reference in a conveyance of land by definite metes and bounds to an alley or road, as abutting on the premises conveyed, where no such alley or road exist, can be construed to be a grant of such an alley or road. In the case of Harding v. Wilson, 2 Barn. & Cress. 96, a lease had been made of a piece of ground abutting upon an “ intended way of thirty feet,” which would have been on the land of the lessor. The defendant having purchased this land, built a wall which extended three feet upon the intended way. It appeared that the plaintiff was entitled to a way of necessity over this intended way, but the court held that he had no right to the whole thirty feet; and Justice Holroyd said, I think correctly, “the intended way is no jiart of that which was granted, and the declaration of an intention is not an implied grant. In the case before us the abuttal is not upon an intended way, that is upon a way not yet opened, but which the grantor says he intends to open; but upon an alley and street described as actually existing, and which, so far as appears by the deed, both parties supposed actually did exist. It is a case of misdescription. Had the land over which this alley and street were described as running been at the time the property of any other person than the grantor, it would jiot have been supposed that they were included in the grant which, in terms, excludes them. That it happened to belong to the grantor, does not enlarge the description of what was granted. Nor is there any authority for holding that such a description implies a covenant to open a street or to allow a right of way. There are apt and plain words customarily used for granting a right of way, or as a covenant that a way shall be opened, which are not used in this conveyance, and *428 which, I think, we must presume were not used because no such thing was intended. What equitable rights the evident misdescription ■ in the plaintiff’s deed may entitle him to, we are not called upon to consider. In my opinion, our judgment must be for the defendant.

Judgment for defendant.