This is an action to recover damages for an alleged trespass, the plaintiff thereby seeking to test the validity of defendants' claimed right of way to reach the barn on the rear of their premises over his lands. By the verdict of the jury and the affirmance of the General Term all the material and controverted facts are conclusively found against the plaintiff, and we are called upon to consider the questions of law.
In March, 1889, the plaintiff conveyed to the defendants improved real estate on Partition street, in the village of Saugerties, Ulster county, being a lot nineteen feet three inches in front and rear, and four hundred and seventy feet deep. The buildings consisted of a store and dwelling in front the full width of the lot, and a barn and shed about one hundred feet in the rear of the front buildings. These buildings were over thirty years old at the time of the conveyance.
The barn on the defendants' premises had been reached by a right of way that was open and notorious for more than thirty years, and one witness swearing he had known the "alleyway" for "forty odd years."
The undisputed facts as to title will make this matter of the right of way clear. In 1853 one John Glennon owned the lot which now lies next north of defendants' lot, and is at present owned by the plaintiff. In 1853 one Abigail Heath owned the lot immediately north of John Glennon's lot.
Glennon and Mrs. Heath, in August, 1853, by deed laid out a lane between their two lots eight feet wide and one hundred and fifty feet deep; six feet of the width of this lane was conveyed by Mrs. Heath and two feet by Glennon, the latter paying Mrs. Heath one hundred dollars in addition. The record does not disclose when this way was first laid out, but the evidence shows an alley of some kind prior to 1853.
It was through this lane and over the lot now owned by the plaintiff that defendants and their predecessors in title reached the barn on defendants' premises.
Plaintiff took title to the lot he now owns, on the north of defendants' lot, in May, 1867, and of defendants' premises in April, 1869. *Page 607
Plaintiff conveyed the latter to defendants in March, 1889, the deed making no mention of the right of way.
It is to be taken as established against plaintiff on this appeal that during the negotiations that led up to this conveyance he walked through the lane and over his own lot to the barn with defendant Schwartz and a third party, and pointed out that route as the right of way to the barn — not a new right of way he was then creating, but as an existing one, visible to the eye, and over which they had passed.
It is further to be taken as established that defendants relied upon this statement and representation when they received the conveyance from plaintiff.
It thus appears that the plaintiff stands before the court in a position destitute of all equity, and seeking to inflict great injury upon defendants by invoking certain technical legal principles, which he insists enable him to accomplish his purpose.
It is argued in his behalf that the deed being silent as to the right of way, the plaintiff's representations in respect thereto are immaterial and merged in the written instrument.
It is further insisted that defendants seek to establish a title or interest in real estate by estoppel in contravention of the statute that requires that such title or interest must pass by operation of law, or by a deed or conveyance in writing.
It is also urged that the title to the dominant and servient estates being vested in the plaintiff, the latter estate was merged in the former.
The learned trial judge submitted the case to the jury with the statement that defendants had shown no right of way by prescription or necessity, but allowed the jury to determine whether the representations alleged to have been made by the plaintiff as to the right of way were in fact made, and charged them that if they so found, "the plaintiff so practically located what he sold as to give the defendants such a license coupled with an interest to go through this alley that he cannot and ought not to be permitted to revoke it."
We are of opinion the charge of the trial judge, that the *Page 608 right of way under the circumstances did not pass by the use of the word appurtenances in the deed, was more favorable to plaintiff then he was entitled to ask.
No principle of law is better settled than that some things pass by a conveyance of lands as incident and appurtenant thereto, though not named therein. This is the case with a right of way or other easement appurtenant to land. (Voorhees v.Burchard, 55 N.Y. 98.)
In the case cited the grantor, owning certain premises upon which there was a sawmill, conveyed by metes and bounds the portion thereof upon which the mill was located, with appurtenances, describing it as his mill property. Between the premises conveyed and the highway was a piece of land for many years used as a way to the mill and as a mill yard for storing logs. There was no other access from the mill to the highway, and the use of the land was necessary to the mill as a mill yard.
This court held that an easement in said land for a way and a mill yard was carried by the principal thing conveyed.
In the case at bar we have the defendants' entire front on the street occupied by the building, and no possible way of reaching their barn from Partition street, except by removing a portion of the building, or purchasing a new right of way.
When the plaintiff sold these premises and made the representations he did as to the right of way, the general rule comes in that everything is granted by which the grantee may have and enjoy such use. (3 Kent's Com. 420-21.)
The plaintiff by his representations as to the right of way clearly consented to subject his remaining land to the easement of defendants', and elected to make it a servient estate to that extent. (Lampman v. Milks, 21 N.Y. 505.) This is in addition to such rights as defendants and their predecessors in title had acquired by more than twenty years' use of the right of way as appears by the undisputed evidence.
We are also of opinion that the plaintiff is estopped from denying the defendants' right of way by reason of his declarations and representations in respect thereto. *Page 609
The fact that the party to be estopped made representations in hostility to his record title existing at the time does not prevent the court from enforcing against him the general rule that when a party, either by his declarations or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such third person or to some one claiming under him. (Trustees, etc., v. Smith,118 N.Y. 641, and cases cited.) In the case just cited it was held by the Second Division of this court that if one is induced to purchase lands on representations of another designed to influence his conduct and creating a reasonable belief on his part that he is thereby acquiring a valid title to the same, under which he acts, the party who thus influenced him is estopped from setting up title to himself, existing at the time of the purchase, against that of the purchaser.
The enforcement of this principle in no way contravenes the statute that requires title or interest in real estate to pass by operation of law, or by a deed or conveyance in writing.
In De Herques v. Marti (85 N.Y. 609) this view of the law of estoppel is fully sustained.
FOLGER, Ch. J., said: "The fact that it is real estate that is concerned, the title to which and the rights in which are generally to be affected by instruments in writing formally executed, does not prevent the operation of the estoppel. Looking on in silence and not asserting a right, when other parties are making purchase and transfer of lands, will estop from asserting an antagonistic right therein."
We are of opinion that the defendants' right of way passed to them under the deed they received from plaintiff, and that the latter is also estopped from interfering with the same by his representations acted upon by the defendants.
It follows that the judgment appealed from should be affirmed, with costs. *Page 610