The testator, Yalentine Mott, was, during his life, the owner of the land on both sides of the lane from beginning to end, which forms part of some of the lots bought by the petitioner, and had been in possession thereof as owner for more than thirty years prior to *477bis death. The lane was an easement created for adjoining owners, and as between them it could not be changed in its character or design. When the several owners yielded their estates bordering upon it, they centered in one person; the-servient character was subject to his will. He might use it or not, for the purpose originally designed, as he thought proper. It was not a public but a private road or lane, .leading from the Bloomingdale road to the Apthorpe or He Peyster mansion, and when the earlier grantors regarded and protected it by provisions in the deed, it was not to reserve in themselves, or their heirs, any estate in it, but to secure it as a necessary way or easement for the beuefit of the owners along its line. This is evidenced by the provision contained in the deed from Charles Apthorpe to Clarkson, to the effect that the latter would always bear and pay, in common with the former and his heirs and assigns, the expense of keeping the lane in proper repair.
There can be no doubt that when property thus conveyed is united in one person, even though several parcels are described as commencing at or running to the side of the private road, or lane, the fee to the center of the way passes from the grantors. (Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. N. Y. C. R. R. Co., 36 id., 120; Corning v. Gould, 16 Wend., 531.) To hold otherwise would, in effect, be to declare that a man could not close a private road or lane running .through 1ns land, although it was made with express reference to and for such land, and although he has secured by grant the use of it in perpetuity, and although it formed a part of the estate to which it was an incident.
The original grantors could not claim any interest in the bed of the land or private road, because it is evident that the grants by them were not intended to withhold the absolute title to the center of the lane or road, except so far as to. secure the use of its bed for the purpose mentioned, as long as the several owners required it. Questions of boundary are to be determined by the palpable intention of the parties as it appears from all the circumstances. (Perrin v. N. Y. C. R. R. Co., supra.)
The sale of the adjoining land, by the several owners, was a surrender of the right and an abandonment of the use of the lane to the grantee, to be employed by him or not as he pleased. (Bissell *478v. N. Y. C. R. R., supra.) The purchase of the whole land adjoining made the purchaser master of the whole tract. He became the owner of the whole of the dominant estate to which the servitude or easement was due. (Case supra.) He closed the lane and used it as a pasture ground, and rented the use of it. If a right of way be from the close of A. to the close of H, and both closes be united in the same person, the right of way as well as all other subordinate rights and easements, is extinguished by unity of possession. (3 Kent, 423 [marginal paging].) In the case of Bissell v. N. Y. C. R. R. Co., in which it appeared that the grantor had laid out a plot of land in lots and a street, which was used as access to them, the lots being bounded on the street, Justice MasoN said : “ There is no more reason, it seems to me, to infer an intention in the grantor to withhold his interest in or title to the land covered by the street, after pawling with all his right and title to the adjoining land, than there is in the case of a deed bounded by a public highway.” Indeed the object of the reservation considered in this case with regard to the intention of the grantors gathered from the surrounding circumstances, appears to haye been only to secure the use of the lane for the owners on its line so long as it was necessary for or demanded by them, and it is not well to be questioned that there is no distinction to be drawn between the lane under consideration, and the street in the case of Bissell v. N. Y. C. R. R. Co., which was used for a purpose similar to that which caused the laying out of the lane. The object secured by it has ceased, both as a convenience and necessity, and there is neither of these elements in favor of the continuance of it.
Why should the grantors, having parted with all the adjoining land, be permitted now to claim a fee in the bed of the land, against the undoubted intention of the grants to part from all interest in it when they sold the adjoining land?
Is it not clear that, as between themselves and their grantees, they intended to convey to the' center of the lane, as declared in Bissell v. N. Y. C. R. R. Co.? These interrogatories seem to admit of but one answer. The objection discussed is therefore of no avail to the petitioner.
The further objection to the title to lots four and thirteen, forming part of the Bloomingdale road, proves valueless, because the *479respondent did not sell any more than the right, title and interest of the testator and- his representatives in them. They claimed an interest in them under a conveyance and the provision of the act of 1867 (chap. 697), granting the fee of the road to adjoining owners, and it was that interest which the petitioner bought. He was bound by his bid. If he desired to know what the interest was, the information should have been demanded at the sale. Having chosen to buy, without that or an examination for himself, he takes the consequences.
It is manifest that the order made at Special Term was correct, and it must be affirmed.
Davis, P. J., and DaNIels, J., concurred.Order affirmed.