The single question presented upon this appeal is whether the land in the bed of what was formerly known as Mary street, now known as East One Hundred and Forty-second street, was burdened with private easements in favor of the grantees of Heintze who purchased lots on adjoining streets which were shown on the Lyon map. The contention of the city is, that all of the grantees of Heintze are entitled to easements over all the lots included within the streets bounding the block in which their lots are situated, as well as over all the streets shown on the Lyon map, to their full extent.
It is to be noticed that there is here no question as to the public dedication of these streets; and it is also conceded that in the conveyance made by Lyon to Heintze the latter obtained four blocks of building lots bounded by the streets and avenues shown on the map mentioned in the deed, without any title to the fee of such streets and avenues. This was followed by a • declaration, made at the request of certain attorneys for the mortgagee who was to loan money to Heintze secured by a bond and mortgage on some of the *434property, wherein it is stated that the language in the Heintze deed with respect to the streets referred to them “ for convenience in description only, and not with intent to convey the same or dedicate the same to public use; ” and “ was not intended to restrict the free and uninterrupted use of said streets and avenues by the said Heintze or his grantees, * * * for the purpose of access and egress to and from any one of said building lots designated on said map * * *. But the said John George Heintze, his grantees, * * * were intended by me to have and enjoy free and uninterrupted access over and upon said streets and avenues.”
The commissioners, in considering the effect of this declaration, fell into an error of fact in assuming that Lyon, when he conveyed to Heintze, had not retained the fee in the streets ; and upon this assumption they concluded that Lyon could in no way affect the title to Heii tze or his grantees by any declaration made after parting with the title. Though their reasons may have been based upon an erroneous assumption, it remains to be determined whether their conclusion was right; and this necessarily depends upon the effect and construction of the Lyon declaration.
Prior to the execution of that paper it is doubtful if Heintze obtained or could convey to his grantees any right or easement whatever in the streets or avenues appearing upon the map. Lyon, having reserved the title to the streets, could unquestionably thereafter by grant to Heintze and his grantees have conferred upon them and each of them an unrestricted right or easement over some or all of the streets appearing upon the map. He did not, however, undertake to convey by grant any rights to Heintze or his grantees; but at the request of the attorneys representing the one who was to loan money to Heintze the declaration was made; and while it does not reach the' dignity of a conveyance or grant, it would by way of estoppel inure to the benefit of all those who relied upon it. It remains, however, to determine the extent of the rights acquired by virtue of such estoppel, and as to whether, in addition to the undoubted right which the grantees from Heintze obtained to the free and uninterrupted use of the streets in front of the lots bought by them, they obtained an equal right in all other streets and avenues appearing upon the map.
Considering the language of the declaration, an argument could *435undoubtedly be built up- in favor of the view that the easements which the lot owner acquired were not to be restricted to the streets upon which his lot abutted, but" that he was entitled as well to passage over all the other streets shown on the Lyon map. But notwithstanding such general language, we think there are two controlling reasons in favor of construing this declaration into one which gave to the lot owners a right of necessity over the street upon which their lots abutted, so far as to enable them to reach the next open street, but that they acquired no easements over other streets designated on the Lyon map.
One of these two, and the principal one, to which we have already adverted, is the fact that there was no grant to Heintze or those who succeeded him; but that the declaration worked in favor of the lot owners and against Lyon, an estoppel to an extent commensurate with the use and enjoyment of their property, which included the right of ingress and egress over the streets in front thereof and so far as the next open street. As was said in Hier v. N. Y., W. S. & B. R. Co. (40 Hun, 314; affd., 109 N. Y. 659), wherein a similar question was presented having reference to facts somewhat analogous to those here appearing: “ But we are of the opinion that the plaintiff acquired no interest in Olive street beyond the general public (except a way by necessity) by reason of the description contained in his deed and reference to Green’s map. The conveyance does not purport to give any right • in or to the street or along its course. (Wheelers v. Clark, 58 N. Y. 267, 271, 272.) Nor would an easement pass as an appurtenant, unless it were directly necessary to the enjoyment of the estate granted. A mere convenience is not enough to create a right or easement.”
The second reason which wé think controlling, is that any rights which the lot owners may have acquired by the estoppel are in no way to be diminished because, as the result of the proceedings, it is proposed to take the land appearing on the map for public streets over which the lot owners will have free access, and besides, none of them is here asserting any rights to any portion of the award which is to be made for the land taken for the streets. And if we assume that they are represented by the city, the latter on their behalf could only ask for a deduction from the full value of the land taken, such amount as would be proper to pay for easements *436which the abutting owners may have in and over the land taken. In our view, however, a right of way of necessity, based upon an estoppel, is not an interest or right in land which would entitle the one having it to be compensated. It is a “ mere convenience,” and “ not enough to create a right or easement.”
We think, therefore, that the report of the commissioners was right and that the order confirming it should be affirmed, with costs.
Ingraham and McLaughlin, JJ., concurred; Van Beunt, P. J., and Laughlin, J., dissented.
Order affirmed, with costs.