[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 300 The judgment requires defendant to remove a house and gate erected by him upon premises which the judgment declares to be a private road. From the findings of fact made by the trial court we extract the following:
In September, 1866, John Hill deeded to James Hay 10½ acres of land on the shores of Lake George, and on the same day he deeded to Allen Hay, Jr., a brother of James, 7½ acres immediately adjoining the first-mentioned lot on the south. On the death of Allen Hay, Jr., Allen Hay, Sr., succeeded by inheritance to the latter tract.
In 1891 James Hay and Allen Hay, Sr., verbally agreed, for the mutual benefit of all parts of said lots and for the purpose *Page 302 of making them marketable, that a private road 25 feet in width should be laid out and forever maintained, extending from the extreme northerly part of said 10½-acre lot, across such lot and the 7½-acre lot along the line of an old road, to a point in the highway called the Lake road.
Thereafter they caused a survey to be made of said private road and laid out the tract into building lots, the survey following the old road, as the parties had agreed, the surveyor at the time driving stakes into the ground indicating the center line. Subsequently he submitted a map, showing the private road and the mapping out of the lots (as he had done it upon the ground), to the owners of the property, who thereupon approved and adopted the map, and agreed that the said private road, as indicated on said map, should continue to exist forever for the use and benefit of all of the owners of the lots bounded by the same or which were crossed thereby, all such owners to have the right to pass and repass over said private road without hindrance. They paid jointly the expense of the survey and the making of the map.
Of all of these facts defendant had full notice, including the map, before he purchased the southerly portion of the 7½-acre tract from Allen Hay, and the deed executed to him described one course as running "to the center of a private road (which road is 25 feet in width); thence north 30 minutes east along the center of said road 50 feet." That deed also stipulated that "any fence that may be erected along the line of said private road shall be set not less than 12½ feet from the center line of said road as above described."
The private road described in the deed is the private road surveyed and mapped for Allen Hay, Isabella Hay and James Hay, and it is upon that private road that the defendant's house and gate encroach.
Now, the trial court specifically found "that it was the intention of the parties to said deed (meaning the deed from Hay to this defendant) to ratify and confirm the said verbal agreement respecting the said private road. That it was the intention of said parties to create in perpetuity a road 25 feet *Page 303 in width as mapped by said Brown, so far as the same is described as a boundary of the land conveyed, 12½ feet in width to be taken off the land conveyed and 12½ feet in width to be taken off the land of the grantors, and to be kept open for the use, not only of the parties to said deed, but for the use of the owners of any and all lands through which such private road ran as indicated by said map." After which, the findings say, the defendant entered into possession of the parcel conveyed to him, and, in obedience to the description contained in the deeds and the understanding of the parties, built a wire fence along said road on its easterly side from the junction with the Lake road, which fence was intended to, and did observe the restriction in said deed, being 12½ feet from the center line of said private road.
Subsequently, Allen Hay and Isabella Hay conveyed the rest of the 7½-acre tract to James Hay, and later James Hay conveyed to Isabella Hay the whole 10½-acre lot without mentioning the private road in the deed. But the grantee was a party to the original verbal agreement and had full knowledge of all conveyances and restrictions theretofore made.
Other conveyances there were, but it is not important that they should be mentioned, the defendant's position having been that the purchasers of the lots in the 10½-acre piece had no right to pass and repass upon the so-called private road, and hence he made the erections which the judgment in this action requires him to remove.
The findings of fact conclude as follows: "That prior to the purchase made by Antonio Knauth the said private road had been used by teams passing to and from lot 8 in said 10½-acre piece. That said road had been graded and is in use from the said house erected by Antonio Knauth to its intersection with said Lake Road and has been partly graded across the said 10½-acre piece * * * for the purpose of making an outlet from said private road to said Lake Road as contemplated by said verbal agreement."
Assuming as we must (this not being a short decision) that *Page 304 the findings of fact are not only true but that they express the whole truth, in view of the unanimous affirmance by the Appellate Division, the conclusion necessarily follows that the plaintiff was entitled to the judgment rendered, for they established:
(1) The making of an oral agreement between the owners of all the lands to establish such private road for the benefit of all parts of such lands.
(2) That the oral agreement became an executed agreement by a part performance of its stipulations by all the parties to it before the defendant purchased his lands.
(3) That defendant purchased with full knowledge thereof and with the intent to be bound thereby.
In such case equity will protect the contract and if need be will enforce specific performance, although the contract itself be within the Statute of Frauds. (Canda v. Totten, 157 N.Y. 281;Cooley v. Lobdell, 153 N.Y. 596; Young v. Overbaugh,145 N.Y. 158.)
The judgment should be affirmed, with costs.
O'BRIEN, BARTLETT, MARTIN, VANN and CULLEN, JJ., concur; LANDON, J., not sitting.
Judgment affirmed.