This action is brought- to enjoin the defendant from permanently obstructing lands which plaintiff claims to own or to have an easement in as an alley to be used in connection with his abutting premises, and also to compel the removal of obstructions heretofore placed thereon.
I think it a proper subject for the jurisdiction of a court of equity, and the objection that plaintiff should first establish his title in a¡ court of law is not fatal, especially since such objection is not raised by the answer. Baron v. Korn, 127 N. Y. 224; Ranscht v. Wright, 9 App. Div. 108.
Locust street, in the city of Lockport, runs north and south, and Walnut street .intersects it at- right angles. In 1822 an alley, sixteen feet and six inches in width, ran east from Locust street parallel with and 156-| feet north of Walnut street. During the year last named, Jesse P. Haines, a surveyor, in behalf of the proprietors, plotted the block of land lying between this alley and Walnut street and abutting Locust street-on the east, by dividing the sam¡e into lots running north and south and sixty-six feet in width and extending from Walnut street to the alley, and the subdivision map was filed in Niagara county clerk’s office. This *464map designated the lot hounding on Locust street as Ho. 41 and that next east as Ho. 43.
On Márch 21, 1836, Lyman A, Spalding and Michael McDonald conveyed Lot 43 to Mary 0. Hathaway. The record title to the southerly eighty-two and one-lialf feet of this lot was then in McDonald’s wife and the record title of the northerly part of Lot 43, so-far as the abstract introduced in evidence shows it, was in Jared Comstock; but, since he néver thereafter conveyed tire same or made any claim thereto, it is probable that he had conveyed it to Spalding,- as otherwise the latter had nó interest and it would have been unnecessary for him to have joined in the conveyance; that, however, is not very' material in this case. Spalding then owned said Lot 41- It is evident that by some -arrangement between the owners, and perhaps by an exchange of deeds which have been lost, these lands were replotted about this time, for on December 1,- 1836, Mary 0. Hathaway executed to Lyman A.. Spalding a purchase-money mortgage and the description and -a diagram annexed, showed that this alley had been widened to fifty-three feet, leaving only 120 feet of land between it and Walnut street, and named Pearl street, and that no Lot 41 was shown, but the lands abutting on Locust street had been subdivided into six lots, each twenty -feet in width, fronting on Locust street, and extending back seventy feet and six inches in depth, and abutting in the rear on an alley twelve feet wide, running through from Walnut street to Pearl street. These lots were numbered from Pearl street 1, 3, 5, 7, 9 and 11. In the meantime, Locust street had been widened, taking off three feet three inches of land On. the east, thus leaving only sixty-two feet nine inches of the land originally included in Lot 41. -
It will thus.be seen .that these new lots which were laid out after the street had been so widened, extended into what was formerly Lot 43 seven feet and .nine inches. This new plotting of (the land did show a Lot 43, but it was bounded o-n the west by the alley and its width was 145 feet running from Walnut to Pearl street. . \ '
This mortgage expressly bounds the premises therein described, on the west» by this alley and refers to the diagram showing it as herein described. Haines’ official maps of the city, made' in 1845 and 1866, show the alley the same as it is shown on this diagram, ás do also the survey -and the other maps introduced in evidence.
From that time on the premises east of the alley thus designated were conveyed by the same description ,as that contained in *465the mortgage last referred to, and by a deed, with such transcription, the title was transferred to Martha Ashford on September 80, '1864. In 1853 Lyman A. Spalding, the owner, conveyed said Lots 7, 9 and 11, as aforesaid plotted, and the descriptions refer to Haines’ map, which shows them running back to the alley; and in 1866 the plaintiff obtained title to these lots by the same descriptions.
On December 1, 1874, said Spalding’s executrix conveyed the remaining lots fronting on Locust street — 1, 3 and 5 — by similar descriptions, and on December 8, 1874, plaintiff obtained from such grantee a conveyance of said Lot 5 by similar description.-
The locus in quo is that part of the alley immediately in the rear, or east, of said Lot 5.
The plaintiff, upon obtaining title, took possession of all these lots up to the westerly line of -the alley, and more than twenty year’s before the commencement of this action he caused to be erected thereon a block of brick stores, three stories in height, extending from the Locust street line- to within ten feet four inches of the alley, and about the same time placed or erected smaller buildings on most of the space -in the rear extending to- the line of the alley.
For upwards' of thirty years an old building on the Ashford lands, on the east, has encroached upan and occupied seven feet and five inches of the easterly side of the alley from Walnut street northerly along the alley thirty-nine feet, forming a permanent. obstruction, and during the same period of time an old building and shed have occupied and permanently obstructed the easterly ten feet and four inches of the alley extending from Pearl street along the alley southerly forty-two and one-half feet, also forming a permanent obstruction to that part of the alley thus occupied. This old building and shed have at all times been used and enjoyed with the Ashford lands on the east.-'
I have no doubt that Martha Ashford and her grantees have acquired title, by adverse possession, to all that part of the alley thus permanently occupied by them, and plaintiff has no easement therein. Woodruff v. Paddock, 130 N. Y. 618.
There have from time to time been other small, temporary structures, such as hencoops, pigpens, coal and icesheds, erected on other portions of the alley, by the plaintiff’s grantors or their or his tenants, and Used and enjoyed with their or his lands on ■ the west; but there has always been an open passage-way along *466this alley from Pearl street to Walnut street, excepting that during the last sixteen years a fence has' been erected along the southerly line of Pearl street, cutting off communication between the alley and Pearl street.
I am of the opinion that the alley was originally laid out for the use of the Locust street lots, and that by the deed of the lots with reference to the plan the plaintiff would have acquired a legal easement if his grantor had title. Ranscht v. Wright, 9 App. Div. 108.
For upwards of twenty years the plaintiff and his tenants have used that part of the alley not occupied by the buildings, herein-before described as permanent obstructions, for the ordinary uses and purposes of an alley, and he has constructed and maintained thereon during all that time a plank walk leading1 in from Walnut street through the alley to the rear of his stores,, and he and his tenants, have claimed, as a matter of right, and enjoyed, an easement therein for ingress- and egress and for the temporary storing of goods, wares, merchandise and other property, as occasion required. He has constructed and maintained therein a sewer for the draining of all of his said buildings, and has also constructed and maintained the sidewalk and pavement on Walnut street in front of that part of the alley, which was open. The plaintiff has at all times until about the autumn of 1896, admitted and claimed the existence of this alley, and has not denied that the owners of the 'lands on the east also had .an easement therein^ and, -although there has been no satisfactory, reliable evidence that such owners have used the alley or had any use for it, yet the plaintiff has repeatedly admitted this easement and cannot now be heard to deny their rights and such rights are not lost by mere nonuser. Welsh v. Taylor, 134 N. Y. 450.
Neither Martha Ashford nor any of her .successors in title ever denied the existence of the alley or the right of the plaintiff and ■his grantors to an easement in that part thereof not permanently obstructed, or attempted to prevent the free use or enjoyment of such easement by .the' plaintiff and his grantors, excepting that ón November 17, 1874, she obtained and on December' 28, 1879, placed on record, a quitclaim deed from said Lyman 'Spalding and wife to herself of the lands east of the alley to which she then had title and possession, and it is claimed by the defendant that this deed embraced the alley also, and since'it furnishes the only record title to the locus in quo claimed -by the defendant, , it becomes necessary to carefully consider it.
*467• The description in the Spalding quitclaim deed ,of 1874 is as follows: “ Beginning at the point of intersection of the northerly line of Walnut street with the westerly line of Lot Ho. 43 120 feet to Pearl street; thence westerly along the southerly bounds of Pearl street 145 feet to the easterly line of Lot Ho. 41; thénce southerly along the easterly line of said lot 120 feet to1 Walnut street; thence easterly along the northerly line of Walnut street 145 feet to the place of beginning.”
' This description cannot be given effect if we hold that it had reference to .the first plotting of the lands in 1822, which is the only plotting that contained both Lots 41 and 43. In the first place, the westerly, line of Lot 43, where the description commences, and the easterly line of Lot 41, the return boundary, were identical and no land would be conveyed. Again, the width of the lands conveyed is given as 145 feet, which is the exact width of the new Lot 43, and Pearl street is also referred to and it did not exist when old Lots 41 and 43 existed. The reasonable construction of this deed is, therefore, that the point of commencement was intended to be in the easterly line of Lot 43, and since the width of that lot is exactly 145 feet, being, the figures given in the deed and being the definite, unqualified length of the southerly line, wTe should not assume that it was intended to run westerly nineteen feet and nine inches farther to the old line of Lot 41, which was not then shown on the map to which reference was evidently made. Such a. construction would include the rear seven and three-quarters feet of plaintiff’s lots, of which he had warranty title through the same Spalding. If, however, this deed should .be construed as including the alley and the seven feet and nine inches of plaintiff’s lands westerly thereof, it would not avail the defendant.
As has been seen, Spalding had conveyed to Mary 0. Hathaway .all his right, title and interest in "and to the alley and the lands abutting thereon in 1836, and the record does not show that he ever thereafter acquired any interest therein, nor was he ever thereafter in possession thereof. It necessarily follows that Martha Ashford obtained no additional title by this deed. She remained the owner of " the said lands easterly of the alley, which bounded on the alley, until her death, which occurred before February 14, 1895, when her will was admitted to probate. Her executors, by deed dated October 18, 1894, but not acknowledged until February 16, 1895, attempted to convey the alley arid four *468and one-half feet off the easterly ends of the plaintiff s lots abutting on the alley and also some of the lands easterly of the alley, to her daughter, Martha Ashford Thompson, and the latter executed a deed dated July 30, 1896, purporting to convey to the defendant sixty feet of the Pearl street or northerly end of the alley and about twenty-six feet on Pearl street easterly of and extending along the alley sixty feet. The title thus acquired is the only title defendant has. Thereupon the. defendant proceeded to excavate on the premises thus conveyed for-the foundation of and to erect a brick building twenty feet square in the rear of plaintiff’s Lot 5,' and covering the entire' width of the alley. The defendant then was, still is and since the year 1890 has been the plaintiff’s tenant, occupying the store on said Lot 5 as a meat market. In the spring of 1891 the defendant asked leave of the plaintiff to erect a cheap, temporary shed on the alley in the rear of Lot 5, in which to keep his lard kettle and machinery. The defendant was informed that it was an alley and that this could not be done without the consent of the owner of the lands abutting on the east, but that plaintiff had no objection if such consent were obtained. About the time the defendant obtained the deed as hereinbefore. recited, he informed plaintiff that he was purchasing someTands.of the Ashford estate to the east, upon which he intended to build, and asked and obtained leave of the plaintiff to sewer the same through Lot 5 into Locust street, such license to terminate with his lease of Lot 5; but he- did not inform the plaintiff that he was about to purchase or erect a building upon the alley. As soon as the plaintiff learned of' the defendant’s plan and purpose he procured from the heirs of said Mary 0, Hathaway a quitclaim deed of that part of the original Lot 43, which was conveyed to said Hathaway in 1836,- and riot thereafter transferred by her, so far as the records showj namely, the fee to the alley and the record title to seven feet nine inches of land abutting it on the west. The plaintiff then notified the defendant that he claimed title to the alley and forbid the erection • of the building. The defendant did not heed the notice and the plaintiff commenced this action and obtained ’.an injunction ■ pendente lite.
The defendant assails the plaintiff’s deed "from the Hathaway heirs as void, under section ¡147 ¡of title II of chapter 1 of part II of the Revised Statutes (p. 1813, 9th ed.),' which provides that “ Every grant of lands shall be absolutely void, if at, the time *469of the delivery thereof, such lands shall'be in the .actual possession of a person claiming under a title ¡adverse to that 'of the grantor.”. The plaintiff, as has been shown, had not a complete record title to the rear seven feet and nine inches of his lots, which are within the original. Lot 43. The plaintiff derives his title through Spalding, and while the latter’s deed purports to convey to the alley, Spalding had no record title to any part of Lot 43, and if he had title not of record, or through lost conveyances, he had previously transferred' the same to Mary Hathaway by joining in the conveyance to her in 1836. The plaintiff had the right to perfect his record title and was not bound to rest on his title by adverse possession. The plaintiff also had the right to acquire the fee in that part óf the alley not claimed by the defendant and not permanently obstructed. To this extent the deed from the heirs of Hathaway was certainly valid.
. It has been long since decided that, under the statute herein-before quoted, to render a subsequent deed void it is not essential that the person in possession, claiming under an adverse title, should have a good title. That is not the test. But I cannot concede the proposition contended for by the learned counsel for the defendant that a person may in bad faith obtain from a ¡stranger to the title a quitclaim deed and take possession of land knowing that he has no title and thereby render absolutely void every deed the real owner may thereafter obtain to perfect or complete his title. That is this case. When Martha Ashford, in 1874 obtained the quitclaim deed of 'Spalding, he was a perfect stranger to this title and she must have known it, and when her executors conveyed to her daughter in 1895, the daughter must have known it, and so did the defendant when he took the conveyance. He understood that the locus in quo was an alley and realized that he was buying a' lawsuit and acted in bad faith in .obtaining and asserting this title as to the locus in quo. The defendant knew that his grantors had no title and were not in possession, and in taking possession he was a mere trespasser., Jackson v. Andrews, 7 Wend. 152; Livingston v. Peru I. Co., 9 id. 512, 516-24; Humbert v. Trinity Church, 24 id. 610, 611, 635-6.
Under the same statute the deed to him of the rear ends of plaintiff’s lots was void and he had and obtained no title to the locus in quo. The object of the statute was to prevent the transfer of disputed titles and to compel the settlement of questions as to title between the original parties, but it does not preclude the *470holder of the principal title who is. in possession from taking conveyances to correct errors or to .perfect his title. Crary v. Goodman, 22 N. Y. 176; Fish v. Fish, 39 Barb. 515; Jackson v. Given, 8 Johns. 105; Higginbotham v. Stoddard, 9 Hun, 1; S. C., 72 N. Y. 94; Crossman v. Bradley, 53 Barb. 247-9.
The defendant knew that the plaintiff and no one else was in possession of and using the locus in quo, claiming ¡an interest and easement therein for .alley, purposes, and he was in possession thereof as plaintiff’s tenant, and is estopped from planning any adverse interest, at least until Ids tenancy terminates. C'ode Civ. Proc., § 373; Matter of Department of Parks, 73 N. Y. 560-7; Whiting v. Edmunds, 94 id. 309; Church v. Schoonmaker, 115 id. 570.
The plaintiff having the legal title is presumed to have-been in possession, and the burden was upon the defendant of showing an adverse possession for twenty years. Code Civ. Proc., § 368; Stevens v. Hauser, 39 N. Y. 302.
In order that either party may have this case fully reviewed by the Appellate Division and the proper judgment entered by that court, without a new ¡trial, if any of my -conclusions should not be sustained, I will make no formal findings of fact and conclusions of law, but judgment may be entered on this memorandum opinion, which sufficiently states my Mews of the facts and law. - ■
Let judgment be accordingly entered adjudging ¿nd determining ¡that prior to September 10, 1896, plaintiff and his grantors had for more than twenty years enjoyed an easement in all that part of the locus in quo, excepting the northeasterly part, herein-before described as having been permanently obstructed by a building or shed, and that on said last-mentioned day he obtained from the owner of the fee a conveyance thereof, and perpetually enjoining the defendant from building thereon or in any manner, obstructing the plaintiff’s free use and enjoyment thereof in common with the defendant as-an-open alley, and requiring and commanding'the' defendant to remove" all obstruction heretofore placed therein by him and to restore the premises to their condition at the time he first entered thereon, within, thirty days after notice of entry of judgment-'herein, and for costs of the action, to be taxed by the clerk.
Ordered accordingly.