Considered from a pecuniary point of view this action is a trivial one, but the principle to be established by our decision is one of importance and, possibly, of far-reaching consequences. Whether the defendants had a right of way across the rear of plaintiff's lot to a barn on their own lot is the subject of controversy. The defendants sought to establish their title by necessity, by prescription, by estoppel, and they also claimed that the right of way passed as an appurtenant to the plaintiff's grant to them of a lot, for the benefit of which they claimed the right of way to have been originally created. All the judges who have had to do with this litigation, from the trial judge to and including the members of this court, have agreed that the alleged right of way did not pass as an appurtenance to the plaintiff's grant, and that the defendants failed to establish title by necessity or by prescription. The trial court was of the opinion that if the defendants' testimony was true, the plaintiff, pending the negotiations for the purchase from him of the lot by the defendants, did point out to them "the said route as the right of way to the barn" upon said lot; the defendants, in making the purchase, relied upon such representations, and, therefore, title by estoppel resulted. With that view the Appellate Division agreed. The plaintiff denied ever making any such representation, and his testimony is corroborated; but the jury believed the defendants, and the conflict of testimony is of no importance whatever on this review, except in so far as it calls attention to the fact that we have here present an illustration of the danger that the lawmaking power aimed at when it enacted that "no estate or interest in lands * * * shall hereafter be created, granted, assigned, surrendered or declared unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the parties. * * *" This provision, which found its proper place in that portion of the statutes relating to fraudulent conveyances and contracts, was intended to prevent fraud and to render it impossible either by honest errors of memory or perjured statements, to overthrow titles, and to create doubt and distrust where certainty and *Page 611 confidence should exist. The right of way claimed by the defendant is, of course, an interest in lands within the meaning of the statute, and it will hardly be asserted by any one, at this late day, that it was within the power of this plaintiff to have vested in these defendants title to this alleged right of way by parol. (White v. Man. Ry. Co., 139 N.Y. 19; Welsh v.Taylor, 134 N.Y. 450; Crosdale v. Lanigan, 129 N.Y. 604 -610; Taylor v. Millard, 118 N.Y. 244; Nellis v.Munson, 108 N.Y. 453; Cronkhite v. Cronkhite, 94 N.Y. 323;Pierce v. Keator, 70 N.Y. 419.)
It has not been pretended in this case that the plaintiff at the time he conveyed to the defendants the lot adjoining the one over which the alleged right of way passes, could by any oral promise or agreement have vested in the defendants an easement consisting of a right of way across the lot not sold and have attached it to the land conveyed. The contention rather is that while he could not vest in the defendants an interest in the lot not sold, and attach it to the lot sold, if he should try ever so hard to do so by parol, yet if he represented that there was such a right of way when in fact there was not, and could not be, as matter of law, which the defendants were presumed to know, then the plaintiff will be held to be estopped from denying that he created such an easement and annexed it to the freehold conveyed by him to the defendants. If this contention be sustained, then the doctrine of estoppel has made great encroachments upon the statute. A vendor of real estate has only to point to wagon tracks across lands retained by him, or to a private alleyway on valuable city property, and say to an intending purchaser, "this is your right of way," in order to carve out a servient estate from lands reserved by him and attach it to the lands subsequently conveyed. I think it can be quite readily demonstrated that the doctrine of estoppel has not been carried to such length, but before taking up that subject it may be well to present the situation involved a little more fully.
In 1854 plaintiff's present lot was owned by John Glennon, while the next lot adjoining it on the north was owned by *Page 612 Abigail Heath; by deed these parties created a lane between the two lots for the use of each lot; on the south side of Glennon's lot was defendants' lot, upon which was situated a barn, and the owner of it was permitted whenever he chose to do so to drive through the lane and then across the rear of the defendants' lot to the barn; thirteen years later, and in April, 1869, the plaintiff purchased the Glennon lot, and two years later he purchased the lot now owned by these defendants. It is not pretended that at the time the plaintiff purchased the last lot a right of way had been established across the rear of the first purchased lot and annexed to the lot last purchased. If, on the contrary, an estate by grant or prescription, from which a grant is presumed, had been carved out of the first lot, still owned by the plaintiff, and annexed to the second lot purchased by him, nevertheless the legal effect of the purchase of the last of the two lots was to merge the servient in the dominant estate. Both estates cannot exist in the same person, and the effect of vesting the separate estates in a given piece of real estate in one person is to merge the lesser estate in the greater. (Gerard's Titles to Real Estate [5th ed.], 766; Wash. on Real Estate [5th ed.], vol. 2, 398, 399; Jones on Easements, § 835; Washburn on Easements [4th ed.], 685.) When the owner sells a portion of the property he has the power to revive the easement thus merged or to create a new easement; but he must do it by express words, used in the conveyance of the land to his grantee, or by a separate grant.
So, had there been a right of way established in conformity with law, across the rear of the defendants' property, upon the vesting of the title to both lots in the plaintiff, the easement became extinguished, and the situation thereafter, down to the time of the conveyance of the lot to these defendants, was precisely the same as if there had never been an easement called a right of way across the plaintiff's lot. But the real position was even less favorable to the defendants' contention, if such a thing were possible, for at the time the plaintiff acquired title to the lot now owned by the defendants, *Page 613 there was no right of way annexed to it across the lot first acquired and still owned by the plaintiff. There was a road occasionally and perhaps frequently used, but the right to use it had not been granted as required by the statute, nor had it been acquired by prescription, which implies a grant. The plaintiff, then, owned on April 24th, 1869, two lots, and he continued to be the owner until March 12th, 1889, a period of about twenty years, when he conveyed to the defendants one of the lots, and at the time the negotiations for the sale were pending, he pointed out a route leading from the lane across other premises belonging to him as "the right of way to the barn," and the defendant Swartz testified that in making the purchase he relied upon such representations, and thus it is said the plaintiff became estopped from denying that it was the defendants' right of way.
There are few older principles or rules of law than that of estoppel, which for centuries has been employed to bar a party from alleging or denying a fact to the injury of another contrary to his own previous allegation or denial. It signifies that a man, for the sake of fair and honest dealing, should be prevented from declaring that to be false which through his instrumentality has been accredited and acted upon as true. But the party who invokes the doctrine must have acted not only on the faith of the representation, but must have been justified in doing so. Now, assuming, as we must, that the plaintiff said, "Here is the right of way to this barn," or "pointed out the said route as the right of way to the barn," we note that he did not assert that it was annexed in any way to the lot that he was about to convey to the defendants, nor that he would convey it, and certainly these defendants, like all other parties, are presumed to have known the law, and hence they knew at the time this statement was made that the only way that they could acquire an easement in the remaining lot of the plaintiff was by grant. Such was the statute; and, as they were presumed to know the law, for the purpose of the disposition of this question, they did in fact know it, *Page 614 and knowing it they were not deceived by the alleged misrepresentations of the plaintiff.
2. There was no right of way over the premises nor easement of any other kind connected with or annexed to the lot which they were about to purchase, and as they knew the fact to be that the plaintiff was the owner of both lots, they were chargeable with knowledge as matter of law that if there ever had been an easement in the nature of a right of way over the plaintiff's other lot, that easement had been extinguished nearly twenty years before by the merger of all the estates in both lots in one person. It follows that if the language alleged to have been employed by the plaintiff was capable of being understood as meaning that there was a right of way over the plaintiff's other lot, annexed to the one defendants were about to purchase, the defendants were not justified in acting upon it in the face of the law declaring that such a thing could not be.
The defendants were about to purchase real estate, and they knew, or at least were bound to know, that the contract of the parties would be expressed in the deed; that all prior negotiations would be merged in it and that they would receive nothing except that which would be expressly granted by deed; that they could not as the outcome of negotiations with this plaintiff secure one lot by deed and still another or any part or interest therein, by estoppel. If the deed failed to convey to the defendants all that they bought, their remedy was to bring suit for a reformation of the deed on the ground of mutual mistake, or of mistake on their part and fraud on the part of the other party. They have concluded instead to be pioneers in a hitherto unexplored field of alleged legal rights and remedies, and keep the lands acquired by deed, while they attempt to wrest other lands, or an interest therein, from their grantor, through the doctrine of estoppel, because of something said pending the negotiations which finally ripened into a deed.
The matter really does not seem to admit of discussion, but it has been forced upon us by an attempt to apply here certain *Page 615 decisions which were made for entirely different situations. It is said: "That if some person other than this plaintiff had owned the lot sold to the defendant, and he had stood by when that person offered to sell the premises, together with the right of way, and he had not asserted his title to the right of way, he would have been estopped from claiming title thereto." (CitingDeHerques v. Marti, 85 N.Y. 609; Trustees v. Smith,118 N.Y. 641 and other cases.) True, and if this plaintiff were a third party instead of being a party to the contract, the cases cited would be applicable, for in such a case the plaintiff would have been in the position of having assented to a statement of fact which might perhaps have been true, and which the purchaser could have believed, namely, that there was a right of way over the plaintiff's land and annexed to the premises which the defendants were about to buy, a right which would pass by conveyance of the dominant estate as an appurtenant to the lands. (Jones on Easements, § 18; Pierce v. Keator, 70 N.Y. 419.) It would, therefore, be a duty to speak and prevent fraud, and a failure to perform that duty prevents a party from asserting something different from the representation that induced the situation complained of, but this plaintiff is not a third party; instead, he is a party to a contract which presumably embraces all the negotiations between the parties. To such a situation totally different rules apply. It is to the contract that each must resort, not only to ascertain, but to protect, whatever right or interest he may have. The contract may be done away with for fraud. If it does not express the real agreement of the parties, it may be so reformed in equity that it will, but while it stands it must be treated by the parties and the courts as containing the entire agreement upon the subject.
The judgment should be reversed and a new trial granted, with costs to abide the event.
BARTLETT, J., reads for affirmance; GRAY, HAIGHT, MARTIN and VANN, JJ., concur. PARKER, Ch. J., reads for reversal, and O'BRIEN, J., concurs.
Judgment affirmed, with costs. *Page 616