The judge who tried the cause, without a jury, found, in substance, these facts: In April, 1835, the defendant owned, in fee, a parcel of land in the village of Fonda, bounded on the north by a street called Park street, on a map of the village. In June of that year, he caused a survey and map to be made of the lands mentioned. On the map, lots were laid out and numbered, from Ho. 1 to 674 inclusive, and, also, certain streets and alleys *53were dehneated thereon, one of which was called Broadway, and ran from Prospect street, as delineated on the map of the village, in a southerly direction, through the lands plotted out, to the Mohawk river. About the 1st of April, 1810, the defendant sold and conveyed, in fee, the title to lot Mo. 390, as laid down on the map, to George W. Hatch, and, by several intermediate conveyances, the title to said lot was, at the time of the trial, vested in the plaintiff, who was entitled to the possession thereof. The street called Broadway (which was laid down on the map as 100 feet in width), has been opened and worked by the village authorities and used as a public highway down to the south side of Park street, and within two hundred and eighty feet of lot Mo. 390. The plaintiff’s lot (Mo. 390) is bounded on three sides by the lands of the defendant, and. on the west side by the street called Broadway, and there is no other way of access to such lot than across the defendant’s lands. The defendant is now the owner, and has the title in fee of the whole premises mapped and laid out by him into village lots, in 1835, except lot Mo. 390 (owned by the plaintiff), and maintains a fence and gate across Broadway on the south side of Park street, and has neglected and refused to remove the same and to open Broadway from Park street, as laid down on the map.
I do not understand it to have been seriously questioned on the argument, that, upon these facts (and we can look only at the facts found by the judge at Special Term), a judgment declaring that the plaintiff, as against the defendant, was entitled to have the street called Broadway opened and unobstructed from his lot Mo. 390 northerly to Park street, to the extent and width laid down on the map, and enjoining the defendant from erecting and maintaining obstructions across the same, and especially maintaining the gate and fence at the intersection of Broadway with Park street, was right. Where the proprietor of lands surveys, maps and lays out such lands into lots (numbering them), with streets designated, named and put down on the map, and conveys the lots to purchasers with reference to the survey and map, as between him and a grantee of a lot bounded on one of the *54designated streets, his conveyance is per se a dedication of the street to the use of his grantee, as a street. As between the grantor and grantee it is a street, which the iatter has a right to .use as such as soon as the conveyance is made to him. By force of the grant, an easement is attached to the land granted, which thereby becomes an appurtenant, viz.: a right of way on and over the strip designated as a street, for the use of the lot conveyed. If the convenient and free and entire use of the lot conveyed requires the street to be opened as designated on the map and referred to in the conveyance, then the grantee has the legal right, as against the grantor, to have it kept open. In this case it is conceded by the defendant’s counsel that the defendant, by his conveyance of lot Ho. 390 to Hatch, in bounding it upon Broadway street, as laid down on his map, adopted such map, and the grantee and his assigns acquired a right of way over such street to the public highway, and the right to have it kept open; and, further, that Hatch, and those who succeed to his title, might, by injunction, prevent the defendant from inter- ’ fering with such right of way over the contemplated street, and compel him to remove obstructions he has placed in the way. This is a virtual concession of the correctness of the judgment. All that it does is to declare the right of the plaintiff to have Broadway street opened and unobstructed to the extent marked and laid down on the'map, and restrain the defendant from further obstructing it by maintaining the fence and gate across the same at its intersection with the public highway.
This may be in one aspect a hard case. The defendant’s speculating enterprise proved, to a great extent, a failure. The village of Fonda did not expand into a city; and his plot of ground is now, and has been for a long time, used by him for agricultural purposes. .But the hardness of the case cannot and should not change the rules and course of the law.
The judgment should be affirmed.
Judgment reversed.