This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
29. Pitts v. Baltimore, 73 Md. 326, 21 Atl. 52; Bushman v. Gibson, 15 Neb. 676, 20 N. W. 106, 289; Hopkinson v. Mcknight, 31 N. J. Law 422; King v. New York, 102 N. Y. 171, 6 N. E. 395; Re Brook Ave., 40 App. Div. 519.
58 N. Y. Supp. 163; Neely v. Philadelphia, 212 Pa. 551, 61 Atl. 1096.
30. Fitzgerald v. Barbour, 55 Fed. 440, 5 C. C. A. 180; White v. Tidewater Oil Co., 50 N. J. Eq. 1, 25 Atl. 199; Livingston v. New York, 8 Wend. (N. Y.) 85, 22 Am. Dec. 622.
That a conveyance of bind bounds it on a non existent street does not impose any obligation on the grantor to make a street or way accordingly, which will be fit for travel. Loring v. Otis, 7 Gray (Mass.) 563; Hennessey v. Old Colony & N. R. Co., 101 Mass. 540, 100 Am. Dec. 127; Durkin v. Cobleigh, 15(1 Mass. 108, 17 L. R. A. 270, 32 Am. St. Rep. 436, 30 N. E. 474.
Eluded from denying the existence of an easement in favor of his grantee on the land retained by him, one to whom he subsequently conveys the latter land is also so precluded,31 but not one claiming under title paramount, as for instance at a sale under a prior mortgage.32
One can obviously not create an easement by describing the land conveyed as bounded by a street or way. if he does not own the land on which the street or way is supposed to be located, that is, he cannot thus create a right of way over another's land.33 And it has been decided that such a reference to a nonexistent street or way does not, merely because it cannot operate as creating a way, take effect as a covenant as to the existence of the street or way, for breach of which dam-hues may be claimed.34 The statement not infrequently found in the cases,34a that the reference to a street involves an "implied covenant" on the part of the grantor that there is such a street, appears ordinarily to
31. Fitzgerald v. Barbour, 55 Fed. 440, 5 C. C. A. 180; Thomas v. Poole, 7 Gray (Mass.) 83; Rogers v. Ballinger, 59 Ark. 12, 26 S. W. 12; Cox v. James, 45 N. Y. 557; Suetter v. Welzel, 242 Pa. 355, 89 Atl. 455. Contra Briz-zalaro v. Senour, 82 Ky. 353.
32. See Tuttle v. Sowadzki, 41 Utah, 501, 126 Pac. 959.
That a subsequent grantee of part of the land, away from the asserted street, cannot assert the existence of the way, see Dawson v. S. Paul Fire & Marine Insur. Co., 15 Minn. 136, 2 Am. Rep. 139.
33. Dorman v. Bates Manuf'g Co., 82 Me. 438, 19 Atl. 915; Cole v. Hadley, 162 Mass. 579, 39 N. E. 279.
34. Wimpey v. Smart, 137 Ga. 325, 73 S. E. 586; Howe v. Alger, 4 Allen (Mass.) 206; Fulmer v. Bates, 118 Tenn. 731, 10 L. R. A. (N. S.) 964, 121 Am. St. Rep. 1059, 102 S. W. 900. Contra, Trutt v. Spott, 87 Pa. 339;. Talbert v. Mason, 136 Iowa, 373, 14 L. R. A. (N. S.) 878, 113 N. W. 918 (semble).
34a. See e. g. Rogers v. Bellinger, 59 Ark. 12. 26 S. W. 12; Haynes v. Thomas, 7 Ind. 38. White v. Flannigan, 1 M'd. 525, 54 Am. Dec. 668; Tufts v. Charles-town, 2 Gray (Mass.) 272; Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; Greenwood v. Wilton R. R., 23 N. H. 261; Bellinger v. Union Burial Ground Soc, 10 Pa, 135.
Mean merely that he is precluded from denying the existence of the street.
There are quite occasional decisions and dicta to the effect that if one conveys land as abutting on a legally existent highway, the fee of which he owns, and the highway is subsequently discontinued, the grantee still has a right of passage where the highway previously existed, which cannot be obstructed by the grantor or one claiming under him,35 This view involves the assumption that the description in a conveyance of land as abutting on a highway has the effect of creating a private right of way, irrespective of whether the highway does or does not exist.
While the courts, as above stated, in deciding that the grantee of land may acquire an easement in the grantor's adjoining land by reason of the fact that the conveyance bounds the land on a nonexistent street or way, base this in terms on the ground of estoppel, they give practically no satisfaction as regards the character and theoretical basis of the estoppel. If they regard it as a case of estoppel by deed, that is, if they mean that the grantor having, in a formal conveyance, referred to a street as existing on his land in a particular location, he is estopped to deny that it does so exist,36 the fact that the grantee knows that the street does not exist would presumably be immaterial, as would the fact that the conveyance is by way of gift.37 The courts,
35. Bayard v. Hargrove, 45 Ga. 342; Leffler v. Burlington., 18 Iowa, 361. Parker v. Farmingham, 1047; Dobson v. Hohenadel, 148 Pa. St. 367, 23 Atl. 1128. Shetter v. Welzel, 242 Pa St. 355, 111. Van Buren v. Trumbull, 92 8 Mete. (Mass.) 260; Plumer v. Johnston, 63 Mich. 165, 29 N. W. 687; White's Bank v. Nichols, 64 N. Y. 65; Holloway v. Southmayl. 139 N. Y. 390, 34 N. E. 89 Atl. 455; Sowa.iski v. Salt Lake
County, 36 Utah, 127, 104 Pac. Wash. 691, L. R. A. 1917A, 1120. 159 Pac. 891; Central Trust Co. v. Ktennen, 90 Fed. 593, 33 ('. ('. A. 189. But see Kimball v. Ken osha, 4 Wis. 321.
36. It is referred to as a case of estoppel by deed in Billings v. Mckenzie, 87 Conn. 617, 89 All. 344; Rlietter v. Welzel, 242 Pa. 355, 89 Atl. 155: Bigelow, Estop-pel (6th Ed.) 403.
37. That the fact that the conhowever, occasionally refer to the probability that the supposed existence of the street constituted part of the consideration which induced the purchase, and from this point of view the estoppel is not by deed, but is by representation, and the fact that the purchaser was aware of the facts and was consequently not misled, or that the conveyance was by way of gift, would prevent the estoppel taking effect.3'8
If the grantee's acquisition of the easement is by reason merely of the fact that the conveyance purported to bound the land by a street, without reference to whether the grantee was induced to suppose that a street actually exists, the rule might as well be stated, it seems, without reference to the doctrine of estoppel. So considered, the rule appears to be merely one of construction, that a conveyance of land as bounding on a nonexistent street is presumed, if no such street exists, to be intended to vest in the grantee, as appurtenant to such land, easements of passage and of light and air, similar to those which he would have acquired had the street actually existed.38a If on the other hand the purchaser's acquisition of the easement is by reason of his having been induced to believe that a street exists, without reference to whether the grantor intended to create such an easement in his favor, the rule is, it seems, properly expressed in terms of estoppel, and the language of the conveyance in reference to the street would appear to be material only as raising a presumption that similar language was used by the vendor in the negotiations which preceded the conveyance. So far as estoppel by representation is concerned, the fact veyance is by way of gift is immaterial see Flersheim v. City of Baltimore, 85 Md. 489, 36 Atl. 1098.