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 .
38. That the grantor had previously told the grantee that he did not intend to give him such an easement was regarded as immaterial in Kenyon v. Hookway, 17 N. Y. Misc. 452, 41 N. Y. Supp. 230. A contrary view is taken in Bushman v. Gibson, 15 Neb. 678, 20 N. W. 106, 289.
38a. Post, this section, note 54a.
That the conveyance bounds the land by a street is immaterial if the purchaser has been expressly told, or has reason to believe, that no such street exists. The same considerations apply in the case of a reference to a private passage way as a boundary. If the language of the instrument operates to create an easement in the grantee, irrespective of whether the grantee was induced to believe in the existence of the passage way, the easement is created by the language of the conveyance, and the introduction of the doctrine of estoppel is unnecessary, while if the instrument creates an easement in the grantee merely because it indicates that the grantee was induced to purchased in the belief that the passage way existed, the easement is properly said to be created by estoppel.
- (b) By reference to plat. It is frequently stated that if one sells land, or conveys it, with reference to a plat, on .which plat appear streets, squares, quays, or the like, the plat is in effect made a part of the transaction of sale or conveyance, with the result that the vendee or grantee acquires a right to insist that, in so far as the property belongs to the vendor or grantor, the parts designated on the plat as streets, squares, quays or the like, shall continue to be devoted to such public use free from interference by the grantor or one claiming under him.39 The cases ordi39. Danielson v. Sykes, 157 Cal 689, 109 Pac. 87, 28 L. R. A. (N. S.) 1024; Pierce v. Roberts, 57 Conn. 31, 17 Atl. 275; Fisk v. Ley, 76 Conn. 295, 56 Atl. 559; East Atlanta Land Co. v. Mower, 138 Ga. 380, 75 S. E. 418; May-wood Co. v. Village of Maywood, 118 111. 61, 6 N. E. 866; Swedish Evangelist Lutheran Church v. Jackson, 229 111. 506, 82 N. E. 348; Field v. Barling, 149 111. 556, 24 L. R. A. 406, 41 Am. St. Rep.
311, 37 N. E. 850; Fisher v. Beard, 32 Iowa, 346; Cleaver v. Man-hanke, 120 Iowa, 77, 94 N. W. 279; Rowan's Excrs. v. Portland,
8 B. Mon. (47 Ky.) 232; Memphis & St. L. Packet Co. v. Grey,
9 Bush (72 Ky.) 13; Bartlett v. City of Bangor, 67 Me. 460; Burn-ham v. Mahoney, 222 Mass. 524, 111 N. E. 396. Ilorton v. Williams, 99 Mich. 423; Lennig v. Ocean City Ass'n 41 N. J. Eq. 606, 56 Am. Rep. 16, 7 All. 491; Dill v. Board narily refer to this as arising from a sale according to a plat rather than from a conveyance according to a plat, but when the sale is according to a plat the conveyance by which the sale is consummated is usually according to the same plat, and it may be questioned whether, when the courts refer to a sale according to a plat, they do not usually have in mind such a sale followed by a similar conveyance. As is subsequently indicated,40 whether a sale according to a plat, that is, a reference to a plat in connection with the negotiations for a sale, will have the same effect in this regard as such a reference incorporated in the instrument of conveyance of the land, has been questioned.
In some cases,41 in giving this effect to a conveyance according to a plat, language is used by the court indicative of the view that this result is attained by an application of the same principle which operates to preclude one who conveys land as bounded on a street or way from denying the existence of tile street or way, and that the cases are exceedingly analogous appears not to be open to question. In some cases the view is asserted that the reference to the plat operates to vest an easement in the grantee as inducing him to believe that the streets or other public places exist as indicated on the plat,42 thus in effect applying the doctrine of estoppel of Education of City of Camden, 47 N. J. Eq. 421, 10 L. R. A. 276, 20 Atl. 739. Bissell v. Railroad Co., 23 N. Y. 61; Henn.essy v. Murdock, 137 N. Y. 317, 33 N. E. 330; Buffalo L. & R. Co., v. Hoyer, 214 N. Y. 236, 108 N. E. 455; Chapin v. Brown, 15 R. I. 579, 10 Atl. 639; Chambarsburg Shoe Mfg. Co. v. Cumberland Valley R. Co., 240 Pa. 519, 87 Atl. 968; Oney v. West P>uena Vista Land Co., 104 Va. 580, 2 L. R. A. (N. S.) 832, 113 Am. St. Rep, 1066, 52 S. E. 343
(bridge). Wilson v. Acree, 97 Tenn. 378, 37 S. W. 90; Tuttle v. Sowadzki, 41 Utah, 501, 126 Pac. 959.
40. Post, Sec. 366(c), note 54.
41. See Booraem v. North Hudson R. Co., 40 N J. Eq. 557, 5 Atl. 106. Dodge v. Pennsylvania R. Co., 43 N. J. Eq. 351, 45 N. J. Eq. 366; Wyman v. New York, 11 Wend. (N. Y.) 486; Bissell v. N. Y. Cent. R. Co., 23 N. Y. 61; Mccall v. Davis, 15 R. I. 579.
42. Presoott v. Edwards, 117 Cal298, 59 Am. St. Rep. 186; Mayby representation. Frequently the courts refer in this connection to the fact that, as appears to be agreed in this country,43 a sale of lots with reference to a plat involves a dedication to public use by the vendor of those parts indicated on the plat as intended to be so used,44 apparently regarding this as the basis for recognizing a right of way in the vendee. But this, it is conceived, involves a misapplication of the doctrine of dedication. The existence of a right of way in the vendee by reason of a sale to him by reference to a plat is entirely independent of whether any right exists in the public.45 For instance, although the public authorities refuse to accept the dedication, or vacate a street appearing on a plat, so that the dedication of the street is practically a nullity, nevertheless the vendee's rights remain the same as if the authorities had not taken such action. That the right of the vendee or grantee in such case is not dependent on the doctrine of dedication is apparent upon consideration of the analogous case of a private right of way appearing on the plat with reference to which the sale or conveyance is made. The doctrine of dedication is absolutely inapplicable in connection with a private way, and yet the vendee or wood Co. v. Village of May wood, 118 111. 61, 186, 49 Pac. 178; Clark v. Elizabeth, 40 N. J. L. 172; Mc-farland v. Linderkugel, 107 Wis. 474, 83 X. W. 757. Mccall v. Davis, 15 R. I. 579; Van Buren v. Trumbull, 92 Wash. 691, L. R. A. 1917A, 1120, 159 Pac. 891.