VAN KIRK, J.:
The interpretation of the deed "is not to be determined, under the circumstances, solely, by the language of the description. Reference may be had to what the facts evidence as the intention of the parties." ( Mott v. Eno, 181 N.Y. 346, 373.) The words "the fee * * * of all the streets and ways," in the clause of the deed, were not used in their ordinary meaning, or as the equivalent of "the fee of all the lands under the streets." They are so qualified by the other words used as to disclose plainly that the "use of said streets," not the "fee" in the lands under the proposed streets was intended. The expression is: "Together with the fee, in so far as we have the right so to convey the same, of all the streets and ways shown on said plan, in common with the owners of the other lots, shown on said plan, subject to the right of all the lot owners to make customary use of said streets and ways." The making and filing of the map and selling of the lots with reference thereto obligated the grantor to dedicate the lands marked for streets to the public use and the intent was to convey to each purchaser of a lot the use of those streets as public streets are commonly used. There are shown upon this map some 300 lots. The grantor did not intend to deed to the plaintiffs, with their three lots, the fee of all lands on which the proposed streets are to be opened. He could not grant the fee to lands under these streets to one party and then, when he later grants to the several purchasers of the other 299 lots, open up the executed grant and give to each purchaser successively his proportionate share in the fee as a tenant in common with the former grantee. Assuming that the 300 lots are sold to 300 separate individuals, each such individual has, without expression in his deed, an easement in the streets. In Lord v. Atkins ( 138 N.Y. 184, 191) the court said: "It is well settled that when the owner of land lays it out into distinct lots, with intersecting streets or avenues, and sells the lots with reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. When, in such a case, a lot is sold bounded by a street, the purchaser and his grantees have an easement in the street for the purposes of access, which is a property right." We are of opinion that it was the intention of the parties to this deed to give to the grantee rights similar to those which the law, under the facts here, gave to the grantee without any express grant thereof in the deed, namely, an easement in the streets when opened, and before streets are opened, a way needful to furnish him convenient access to his lot from a public highway or street; this is as far as he has the right so to convey the same. (See Reis v. City of New York, 188 N.Y. 58, 70.) Whether or not these proposed streets shall become public streets rests with the municipality, not with the grantor.
We do not approve of the conclusion that "Unless restrained by the court such continued trespass, continuing for twenty years adversely, will entitle the defendant, its successors and assigns, as a matter of law, to continue the fence permanently and so to deprive the plaintiffs of rights, property and easements." An adverse possession, under which prescriptive title may ripen, involves an assertion of a right such as exposes the party to an action, unless he has a grant, for it is the fact of his being thus exposed, and the neglect of the opposite party to bring suit, which is seized upon as the ground for presuming a grant in favor of long possession and enjoyment, upon the idea that this adverse possession would not have been submitted to if there had not been a grant. The whole theory of prescription depends upon a presumed grant and upon acquiescence and laches upon the part of the owner. ( Burbank v. Fay, 65 N.Y. 57, 65, 66.) The construction of the fence does not necessarily assert title in contradiction of the real owner's title. ( Monnot v. Rudd, 139 App. Div. 651, 654.) There is not here any assertion of a right in conflict with plaintiffs' present right. Plaintiffs have no occasion to assert their right to pass easterly until the streets have been opened, or until demand is made upon the grantor to open them and he fails to do so; no time is fixed when the streets shall be opened. The lot owners have no occasion to pass over or use streets which do not exist. ( Hinkley v. State of New York, 202 App. Div. 570, 574; affd., 234 N.Y. 309.) We think such possession can never ripen into title as against such right as the plaintiffs may have and choose to assert later.
Under the facts disclosed here, the plaintiffs cannot suffer any irreparable loss by reason of the maintenance of this fence. Plaintiffs are within 180 feet of the Van Antwerp road; they are 880 feet from Mercer street. The southerly end of Mercer street terminates at the Mohawk Golf Club grounds and the northerly end at the private land of Charles Benedict. There is no highway to be reached from Mercer street and no present likelihood that a highway will be constructed connecting with it. The Mohawk Golf Club grounds extend the whole length of its easterly side. The use of Isleboro street, easterly from plaintiffs' premises, and of Mercer street, would add nothing under present conditions to the value of plaintiffs' property. On the other hand, defendant owns its property and should be allowed to use it. A court of equity is not required to make an inequitable decree. The judgment will adequately protect plaintiffs' rights against prescriptive rights. ( McCann v. Chasm Power Co., 211 N.Y. 301, 305, 306; O'Reilly v. New York Elevated R.R. Co., 148 id. 347, 353.)
The defendant has not appealed. The plaintiffs have limited their appeal to that part of the judgment, (1) which refuses the injunction; (2) which refuses costs. While in both these respects a right result has been reached, these results rest upon errors of fact and law which are necessarily involved in the appeal. The judgment should, therefore, be reversed, without costs, and judgment should be directed in accordance with the stipulated facts and this opinion.
H.T. KELLOGG, Acting P.J., HINMAN and HASBROUCK, JJ., concur; KILEY, J., concurs in the result.
Judgment reversed on the law and facts, without costs, and judgment directed upon the findings of fact and conclusions of law covering and conforming to the stipulated facts and the opinion herein, which shall contain this provision: The plaintiffs are denied the injunction asked for but without prejudice to their right to bring an action, as they may be advised, to recover for injury to their property or rights or for exclusion from the streets when opened or when they of right may demand that they be opened. The court disapproves of findings of fact six and seven.
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