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 .
- (a) By reference to non existent way. If one, in conveying land, describes it as bounded on a street (or other highway) which is in fact nonexistent, he is, as against his grantee, it is said, estopped to deny the existence of such street, the result being that he in effect grants, in so far as he owns the land covered by the supposed street, a right of way along the route thereof for the purpose of access to the land conveyed,22 and also easements of light and air such as the grantee would have had were the street actually existent.23 Likewise if land conveyed is de20. Beggs v. Duling, 102 Iowa, 13, 70 N. W. 732. As to what constitutes a new use of a new wall erected in place of an old one, so as to impose liability under the statute, see Hoffstott v. Voigt, 146 Pa. 632, 23 Atl. 351; German Nat. Bank v. Mellor, 238 Pa. 415, 86 Atl. 415.
21. Sheldon Bank v. Royce, 84 Iowa, 288, 50 N. W. 986.
22. Teasley v. Stanton, 136 Ala. 641, 96 Am. St. Rep. 88, 33 So. 823; Rogers v. Ballinger, 59 Ark. 12, 26 S. W. 12; Petitpierre v. Maguire, 155 Cal. 242, 100 Pac. 690; Billings v. Mckenzie, 87 Conn. 617, 89 Atl. 344; Poole v. Greer, 6 Del. 220, 65 Atl. 767; Schreck v. Blum, 131 Ga. 489, 62 S. E. 705; Young v. Braman, 105 Me. 494, 75 Atl. 120; O'linda v. Lathrop, 21 Pick. (Mass.) 292; Driscoll v. Smith, 184 Mass. 221, 68 N. E. 210; Dawson v. St. Paul F. & M. Ins. Co., 15 Minn. 136, 2
Am. Rep. 109; Plumer v. Johnston, 63 Mich. 65, 29 N. W. 687; Crosby v. Greenville, - Mich. -, 150 N. W. 246; Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; Lindsay v. Jones, 21 Nev. 72; White v. Tidewater Oil Co., 50 N. J. Eq. 1; Imperial Realty Co. v. West Jersey & S. R. Co., 78 N. J. Eq. 110, 77 Atl. 1041; United N. J. Railway & Canal Co. v. Crucible Steel Co., 86 X. J. Eq. 258, 98 Atl. 1087, affirming 85 N. J. Eq. 7, 95 Atl. 243; White's Bank v. Nichols, 64 N. Y. 65; Niagara Falls v. New York Cent. & H. R. R. Co., 168 N. Y. 610, 61 N. E. 185; Weeks v. New York W. & B. Ry. Co., 207 N. Y. 190, 100 N. E. 719; Ott v. Kreiter, 110 Pa. St. 370, 1 Atl. 724; Shetter v. Welzel, 242 Pa. 355, 89 Atl. 455; Gish v. Roanoke, 119 Va. 519, 89 S. E. 970; Espley v. Wilkes, L. R. 7 Exch. 298.
23. Trowbridge v. Ehricli, 191 scribed as bounded, not by a street or other highway, but by a private alley or passageway, the grantor is said to be estopped, as against the grantee, to deny that such an alley or passageway exists, that is, he grants to that extent a right of way appurtenant to the land conveyed.24 And it has been decided that if the conveyance bounds the land on a way which is actually laid out, the grantee acquires a right of passage for the whole length of such way, so far as it is upon the grantor's land, and not merely for the length of the boundary of the land conveyed.25
While a reference to a non existing street or way as a boundary has thus ordinarily been regarded as involving the grant of a right of way, a different view has been adopted when the land was in terms bounded on the side line of the street or way,26 when the street or way was referred to merely for the purpose of locating the starting point of the description, and the land was described by courses and distances, although one of the courses happened to correspond with the side line of such street or way,27 and when the land was bounded on a "continuation" of a supposed street.28 And generally the particular language used, or the circumstances of the case, may be referred to for the purpose of showing that there was no intention, in bounding the land on a non-existent street or way, to give any easement in the land retained.29
N. Y. 361, 84 N. E. 297; Dill v. Board of Education of City of Camden, 47 N. J. Eq. 421, 10 L. R. A. 276, 20 Atl. 739; Fitzgerald v. Barbour, 55 Fed. 440, 5 C. C. A. 180.
24. Garstang v. Davenport, 90 Iowa, 359, 57 N. W. 876; Riley v. Stein, 50 Kan. 591, 32 Pac. 947; Reccus v. Weber, 142 Ky. 157, 134 S. W. 145; Young v. Braman, 105 Me. 494, 75 Atl. 120; Fox v. Union Sugar Refinery, 109 Mass. 292; Mckenzie v. Gleason, 184 Mass. 452, 100 Am. St. Rep. 566, 69 N. E. 1076; Gould v. Wagner, 196 Mass. 276, 82 N. E. 10; Flagg v. Phillips, 201 Mass. 216, 87 N. E. 598; Carlin v. Paul, 11 Mo. 32, 47 Am. Dec. 139; Cox v. James, 45 N. Y. 557; Hennessy v. Murdoch, 137 N. Y. 317, 33 N. E. 330; Rhoads v. Walter, 61 Pa. Super. Ct. 43. But see Milliken v. Denny, 135 N. C. 19, 47 S. E. 132.
The fact that land is bounded by a private passageway does not, it has been decided, give any rights of light and air as regards the space occupied by such way, except in so far as required for the purposes of passage. Bitello v. Lipson, 80 Conn. 497, 16 L. R. A. (N. S.) 193, 125 Am. St. Rep. 126, 69 Atl. 21. And a description of the land conveyed as bounded on an "open court" was held to give no easements of light and air which would prevent the erection of a building on the court. Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453.
25. Thomas v. Poole, 7 Gray. (Mass.) 83; Rodgers v. Parker, 9 Gray (Mass.) 445; Ralph v. Clifford, 224 Mass. 58, 112 N. E. 482; Tobey v. Taunton, 119 Mass. 404; Mcconnell v. Rathbun, 46 Mich. 303, 9 N. W. 426; Schreck v. Blun, 131 Ga. 489, 62 S. E. 705. Compare Langmaid v. Hig-gins, 129 Mass. 353.
One thus acquiring an easement by a grant to him of land as bounded by a street which is nonexistent has the right to have the supposed street kept open to its full width, as indicated on a plat referred to or otherwise.30
In so far as one who has conveyed land as bounded on a street or way which is in fact nonexistent is pre26. Mckenzie v. Gleason, 184 Mass. 452, 100 Am. St. Rep. 566, 69 N. E. 1076.
27. Lankin v. Terwilliger, 22 Ore. 97, 29 Pac. 268; Talbert v. Mason, 136 Iowa, 373, 113 N. W. 918 (dictum); Pierpoint v. Har-risville, 9 W. Va. 215 (semblc). And see Neely v. Philadelphia. 212 Pa. 551, 61 Atl. 1096.
28. Atwood v. O'brien, 80 Me. 447, 15 Atl. 44. But see Teasley v. Stanton, 136 Ala. 641, 96 Am. St. Rep. 88, 33 So. 823.