Title Guarantee & Trust Co. v. New York Juvenile Asylum (133 A.D. 529, 1909)

Ingraham, J.:

This action was brought to obtain an injunction restraining the .defendant the New York Juvenile Asylum from using a sewer through the plaintiffs’ property and from maintaining any connection with it for any sewer belonging to or used by said defendant, and from discharging into it any sewerage from the property owned and occupied by said defendant. The complaint alleges that one James Jennings McComb "during his life was the owner of certain property at Dobbs Ferry in the. State of New York; that McComb died on "the 31st of March, 1901, leaving' a last will and testament by which he gave and devised such real property to the plaintiffs as trustees; that McComb constructed a private road through his property, known, as Walgrove avenue, and under said road constructed a private sewer for the purpose of. draining his property and for the use of residences erected thereon ; that in September, 1901, the plaintiffs, as executors and trustees of McComb, conveyed a portion of the property owned by McComb during his life to the defendant Ida E. Brown, she being entitled to use this private Toad and private sewer thereunder for the property that she purchased from the plaintiffs, and to connect the drainage from her building erected on the property so purchased with this private sewer; that the defendant the New York Juvenile Asylum had purchased a tract of land adjoining the property of McComb and had entered into a contract with the defendant Brown by which it proposes to make a connection with' the sewer on Brown’s property which connects with the private sewer through the plaintiffs’ property by which the sewerage from a large public institution to be built upon the premises acquired by the defendant the juvenile asylum will be carried away; and it was to enjoin this use of the sewer through the plaintiffs’ property that this action was brought.

The defendant in answer to this complaint alleges that prior to the death of McComb the Chauncey Realty Company, was the owner of a large tract of land situated to the south of the McComb tract; that McComb was a stockholder in the said company and that the company undertook to lay out the projierty with streets and avenues, contemplating the construction of houses and a club house thereon; that prior to the 1st of December, 1899, McComb had constructed under "Walgrove avenue through his premises a sewer, and that between the 1st day of December, 1899, and the 1st day of March, 1900, McComb agreed with the Chauncey Realty Company that if the company would settle and discharge certain alleged claims of one Wood or his estate against Erhardt and others interested in the Chauncey property he would grant to said company an easement in perpetuity to use Walgrove avenue as described in the complaint herein as a right of way and to connect with and use the sewer mains thereunder, and would extend said Walgrove avenue to connect with the roads to be built by the company upon its premises ; that the Chauncey Realty Company settled the claims of Wood, and thereafter, in reliance upon this agreement of McComb, the Chauncey Realty Company used said Walgrove avenue as a right of way and connected with and used said sewer mains under said Walgrove avenue, and that or its successors in title are still connected with and still using said sewer mains for the purpose of draining said property then owned by the said company; that said Chauncey Company and this defendant have performed all the conditions,. covenants and agreements of this agreement between McComb’ and the said company to be performed on. the part of said company, but that McComb and these plaintiffs have failed to perform the covenants and conditions of said agreement to, be performed by plaintiffs’ testator by failing to execute and deliver to said company or to this defendant a good and sufficient deed granting and conveying a perpetual easement to use- Walgrove- avenue as a right of way and to use the sewer mains, under Walgrove avenue; wherefore, the defendant the Eew York Juvenile Asylum demands judgment.that the complaint, be dismissed, and that the plaintiffs be decreed specifically to perform the agreement -between plaintiffs’ testator and the- Chauncey Eealty Company by delivering a good and sufficient deed conveying and granting to this defendant a per- - petual right of way over Walgrove avenue and the right to use the sewer mains thereunder. .

Upon the trial at Special Term the court found : “ That, between the first day of December, 1899, and February 20th, 1900, said James- Jennings McComb agreed with said Chauricey Eealty Company that if said company would settle and discharge certain claims of the estate • of John P. Wood, the brother-in-law of said James. Jennings McComb, against Joel B. Erliard.t and others interested in the Chauncey property,, which- were then in. suit, by delivering to Mary Esther McComb, the. wife of James- Jennings McComb,'and sister of said Wood,” certain satisfaction pieces of mortgages,- and deliver a note of the Chauncey Company for $2,000- to said .'administratrix of Wood, “ he,/the said James Jennings McComb,. would grant and convey to the Chauncey Eealty Company for the benefit of .its said lands an easement in. perpetuity to use Walgrove avenue and the sewer mains thereunder, and also to extend said mains, from the terminals- thereof, and to extend Walgrove avenue in a.southerly direction through his property into the lands- of the Chauncey Eealty Company, and to use said sewer and roadway extensions, and would also grant and. convey to the Chauncey Eealty Company a right of way over his property known as the Alpine Drive Turn.” It was . further found that the Chauncey Company subsequently delivered the satisfaction pieces, to..the administratrix of Wood, and also-a note of-the- Chauncey Company for $2,000, and received from the said McComb a deed of the easement known as the Alpine Drive Turn.

I think the finding that McComb made any such agreement as is specified in this finding is without evidence to sustain it. Some time prior to December, 1899, the Chauncey Company had acquired a large tract of land adjoining McComb’s property, which it had undertaken to develop by the laying out of streets, roads, plots of ground for the erection of private dwellings, and a club house. MeComb was a stockholder in this company, owning about 66 out of 5,000 shares. As he was the owner of a large tract of adjoining-land, he was naturally interested in the development of the company’s property. The real property acquired by the Chauncey Realty Company was subject to a large., mortgage, was evidently producing no income, and the success of the enterprise depended upon the company’s being able to dispose of property to those desiring to build suburban residences. It would seem that one Wood, who was a brother of McComb’s wife, had been employed by the company, and upon his death there was a dispute between the company and Wood’s representatives, the company claiming mortgages upon certain property left by Wood, and Wood’s representatives claiming that the company was indebted to Wood in an amount exceeding those mortgages. The realty company had employed a civil engineer named Lamb to lay out and1 design improvements upon the company’s property and.to build water and sewer works. At that time the property of the company was idle and Lamb made a map of the property. Lamb was called as a witness for the defendant and testified that in the first part of the year 1900 he had an interview with MeComb, and asked MeComb “ for the privilege of connecting with this sewer and for the right of way for a roadway through his property, and he (MeComb) stated he would make no concessions, grant nothing to the Chauncey Realty Company; that they had treated him shamefully, or rather his relatives sharae^ fully. He would do nothing for them.” Lamb made a report to the company of the result of this conversation, although to whom he made the report is not stated. Shortly after he again called on MeComb and asked him, “ if the wrong that he claimed against his relatives were righted, if he would give me, or give the company, the rights that I requested, and he said that if the mortgages were satisfied and the claims of the Wood estate was satisfied, cash paid fór it, that he would give me these easements that I requested, and the right of way through the property, or give the company such.” Lamb reported this fact to the company, ahd subsequently lie was appointed a committee with a Mr. Sweny to wait upon McComb to see if he would accept notes instead of cash and the' release of the mortgages in consideration of the rights that Lamb requested ; that McComb said he would give the rights of way and the use of the sewer in consideration of the company’s paying or giving the notes for the Wood account and to cancel the two mortgages; that the amount of the note should be $2,000. He did not say. anything about making a conveyance. The witness further testified that at a subsequent time he appointed a Mr. Kidney to go with the witness and point out the place where the old sewer left off; that in a conversation with McComb the witness agreed to put Y’s in each of the places where he had located a sewer main. Subsequently the witness, built 2,315 feet of sewer, which ran from where McComb’s main sewer stopped, through his property in a southerly direction to the north of the land of* the Chauncey Realty Company, and that sewer cost between $1,600 and $1,800, in which was included $400 or $500 for superintendence. That sewer was all built inside of the McComb property, except about twenty feet, which extended into the property of the Chauncey Realty Company. At the time McComb wás alleged to have made this promise, lie stated that he supposed Mr. Sweny would take care of the papers in the matter. Subsequently the witness said that at the conversation when the settlement was made he asked for a right of way through McComb’s property for an alpine drive, as well as the right to construct sewers from the end of his land up to the company’s property, in consideration of the release of the two mortgages and the giving of the note for the Wood claim, and that that was the settlement effected that night. He was then asked whether there was anything said as to the character or duration of this easement, and replied that McComb said he would give a perpetual easement. On cross-examination he said he had' four interviews with McComb. The first time he was by himself; the second time he had with him a Mr. Fish; the third time he had with him a Mr. Sweny, and the fourth time he was by himself; that Mr. McClelland was present at the time Sweny was with him, and nobody else at any of the interviews; that at the first interview Lamb explained the extensive improvements that the company intended to make, that these improvements would help McComb’s property and the drive would be an advantage to him, and that the advantage of the improvements upon the company’s property to the property of McComb was impressed upon McComb as a reason why he should grant these rights to the company; that nothing was done at that time about putting the agreement in writing; that it was all left in conversation, but it was stated that Sweny would take care of the papers in the matter. The witness also testified that the Chauncey Realty Company was engaged in laying out a residential property and was to build houses and also a club house; that these houses were to be country places, each with its own land around it; that the plots wrould vary but were laid out in plots of 100 feet square; that the prospectus anticipated a lot of very fine houses, and McComb was told that the connection with the sewer was for the purpose of the Chauncey scheme; that a sewer connection would help carry through the Chauncey Realty Company’s scheme, and that view was presented to McComb, who expressed his approval of it; this scheme seemed to appeal to him. All that was ever done in relation to this Chauncey Company scheme for the property was to build this section of sewer. Immediately afterward the mortgage upon the property was foreclosed and then the whole scheme was abandoned; no plots were sold; nothing further was done. What McComb was asked to do was to give a right to connect his sewers with the residences to be erected by the Chauncey Company upon its property, and the right that was given, as foúnd by the court, was limited to the inside of these houses. It was contemplated that the agreement, whatever it was, was to be evidenced by deed or written instrument. The testimony as to these conversations shows- how indefinite they were as to the rights that were to be acquired by the Chauncey Company. There was not,'howevei-, one word said to indicate an agreement that an easement was to be appurtenant to the property, as distinguished from a license or personal right to the Chauncey Company, which was to be granted for the purpose of aiding in the development of its scheme of improvement. The conversation was all based upon the particular kind of development or iro.nrov.ement of the property then contemplated by the Chauncey Company, and it was solely in connection with this improvement and development, that the privilege, license or easement, whatever it may be called, was agreed to.

A Hr. Fish, who was present at one of these interviews between Lamb and HcComb, testified as to the conversation in’ relation io the proposed development of the Chauncey Company’s scheme, and the great advantage that that would be to HcComb’s property was insisted upon. Fish says that what HcCo.mb. said was that if Lamb could adjust these other matters in relation to the Wood claim he’ would grant this concession, the details to be subject to the approval of Hr.. Kidney. But all that was said was based upon the fact-that aiding the’ development of the Chauncey Company’s property would be a benefit to HcComb’s property, .and there was nothing .granted or agreed, to be granted except aright or privilege’to aid in this proposed development of the company’s property. I think the fair, inference from ,all the conversations was that what was granted was conditioned upon the carrying out of this development, and the right that was agreed to was to enable the Chauncey Company to carry it out. But, as before stated, it was clearly contemplated that whatever rights were to be given were to be settled by the interchange of written instruments, and when this settlement came to be carried out there-was such an exchange of written instruments.

Hr. HcClelland, who was employed by HcComb to .act as his attorney i