dition, are "on condition." Where the explicit | if erroneous, is not ground for reversal of the words which denote the condition are used, judgment. they will not be construed into a covenant. 1 Hilliard, Real Prop. § 26, p. 381; § 27, p. 382. Conditions are strictly construed. Woodworth v. Payne, 74 N. Y. 196; 62 N. Y. 592. Conditions subsequent are not favored in the law, but are construed strictly. They can only be reserved for the benefit of the grantor and his heirs; and no others can take advantage of a breach of them. Right of re-entry for breach of condition subsequent does not pass by a conveyance of land, and until there is a re-entry by the grantor or his heirs, for the breach, the estate is not forfeited, but remains unimpaired in the grantee, and a mere stranger cannot take advantage of it. Toule v. Remsen, 70 N. Y. 303, 312; Nicoll v. New York etc. R. R. Co. 12 N. Y. 131, 134, 135; 22 Wend. 201; 8 Am. & Eng. R. R. Cases, 734; 63 Mo. 68; 46 Barb. 109; 134 Mass. 82, 85; 70 N. Y. 303, 312. III. The plaintiff has no easement in the thirty feet strip. None is granted to him by his lease, and if an easement existed and was held by his lessor, the lessor and not the plaintiff now has it. The plaintiff also claimed that his lessor is seised in fee of the ten feet strip (part of the thirty, and of an undivided half of the other twenty feet. If this be so, then no "easement" existed, because "No one can have an easement in his own land." Huttemeier v. Albro, 2 Bosw. 546, 556. IV. The clause in the deed of 1857 in question, cannot be construed as a covenant or a reservation. Craig v. Wells, 11 N. Y. 315, 322. It is well settled that an exception or reservation to a third person, not a party to the deed, is void. Id.; Stevens v. Adams, 1 Thomp. & C. 587589; 34 Barb. 566; 24 Hun, 430. The plaintiff failed to show himself entitled to recover any damages of the defendant, or that he had sustained any damages by reason of the erection or maintenance of the fence. Mr. Truman C. White, for respondent: I. The amendment did not introduce a new cause of action; it tended to justice, and was, therefore, properly allowed. Fogg v. Edwards, 20 Hun, 90. Lathrop v. Bramhall, 64 N. Y. 365; People v. Fernandez, 35 N. Y. 49. While the evidence of the difference in the receipts of the hotel and restaurant in corresponding months, with and without the nuisance there, may not have been admissible definitely to fix the damage, yet it was admissible as one of the means by which the court might arrive at the proper measure of compensation. Albert v. Bleecker St. R. R. Co. 2 Daly, 389; Wood, Nuis. § 876; St. John v. Mayor etc. of New York, 13 How. Pr. 527. But the case shows that the court held the measure of damages to be the difference in the rental value; and so it has been repeatedly adjudged by the courts in this State. Wiel v. Stewart, 19 Hun, 272; Francis v. Schoellkopf, 53 N. Y. 152; Jutte v. Hughes, 67 N. Y. 267. IV. The facts establish beyond question the existence of a right of way over the alley as an easement or appurtenant annexed to the fee of the hotel premises. Re Opening of Eleventh Ave. 81 N. Y. 436; Child v. Chappell, 9 N. Y. 246; Kings County Fire Ins Co. v. Stevens, 87 N. Y. 287; White's Bank of Buffalo v. Nichols, 64 N. Y. 65; Wiggins v. McCleary, 49 N. Y. 346; Coz v. James, 45 N. Y. 557. V. The language of the deeds in question does not constitute a condition subsequent, but does constitute a covenant. 2 Washb. Real Prop. 4th ed. pp. 2, 6, 7; Craig v. Wells, 11 N. Y. 315; Bridger v. Pierson, 45 N. Y. 601; 3 Wait, Act. & Def. p. 53; Countryman v. Deck, 13 Abb. N. C. 110. Peckham, J. delivered the opinion of the court. The plaintiff is lessee of certain premises in Buffalo which were originally divided from premises of defendant by a strip of land thirty feet wide, and running from east to west 240 feet, and thence north about 100 feet. All of the property once belonged to one James Wadsworth who in 1844 granted and conveyed a portion of it to defendant's predecessor for the purpose of a passenger and freight depot, and for no other purpose, and described this above mentioned strip of land, thirty feet wide, as thereby dedicated for the purpose of a public street. Some question was made upon the trial as to the right of defendant to use, for the purpose If causes of action were improperly joined, of a railroad restaurant, any portion of the the remedy was by demurrer. Code, 488. property thus conveyed; but the court held under the other facts in the case that defendant's The objection, not having been taken by an- right to so use it could not now be successfully swer or demurrer, was waived. Code, § 499. II. To establish a disputed right of way it is always competent to prove user; and twenty years' uninterrupted and unqualified enjoyment of a right of way is decisive evidence of a grant. Wistall v. Lansing, 5 How. Pr. 77. III. The damages awarded were only to the commencement of the action, and therefore the evidence could not have affected the rights of the defendant injuriously. Its reception, even questioned, and there has been no appeal from such decision, and so the question may be dismissed from our consideration. In 1850 James Wadsworth died, leaving a will by which he devised to his children the land not theretofore conveyed to defendant's predecessor, being one quarter to each of his two sons, and one quarter to his executors in trust for his daughter Elizabeth Wadsworth, and one quarter to his executors in trust for his grandson, Martin Brimmer, Jr. So far as the evidence in the case shows, this left the title, not only to the premises leased by the plaintiff but also to the thirty feet strip of land already mentioned, in the devisees under the will of James Wadsworth, because of the lack of any acceptance of the dedication on the part of the public authorities, which will be again referred to. In 1853 partition of the lands now leased by plaintiff (which lands excluded the thirty feet strip) was made, by which one half of such premises was conveyed to the trustees of Martin Brimmer, Jr., and one half to Charles James Murray, who was then an infant. Both conveyances bounded the premises by the line of this thirty feet strip, called therein an "alley." In 1857 the trustees of Brimmer and the general guardian of Murray, conveyed by quitclaim deeds to defendant's predecessor an undivided one half part of that portion of the strip in question being twenty feet wide and adjoining the lands of the said predecessor theretofore conveyed to it by James Wadsworth in his lifetime. This left the title to the remaining ten feet of such strip unaffected, while an undivided half of the interest in the twenty feet just mentioned remained in the other devisees under the will of Wadsworth, assuming that Brimmer's and Murray's trustees and guardian held title to one quarter each, and that it was conveyed to the defendant's predecessor by the deeds above mentioned. These deeds of the twenty feet contained a provision permitting the construction of a building thereon at the discretion of the Railroad Company by a wall along the line bounding on the remaining ten feet, and with roof projecting over such ten feet strip a reasonable width for eaves trough and water conductor, such projection to be on sufferance of the grantors provided they should want at any time to build on the land. Both these deeds also contained the following language: "This conveyance is upon the express condition that the said Railroad Company, their successors or assigns, shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, so called," the premises now leased by plaintiff, "adjacent to the premises hereby conveyed, for the convenient access of passengers and their baggage to and from said premises hereby conveyed, which opening shall at no time be closed against such passengers and their baggage; subject, however, to all proper regulations of police and railroad discipline of persons on the said premises." right of way over the thirty feet strip dedicated for a public street by said James Wadsworth in his deed of January, 1844. Soon after the execution of the deeds to the Railroad Company above mentioned, the Company laid its tracks along this twenty feet of the thirty feet strip which lies south of the premises leased by plaintiff, and has ever since used the tracks for running its cars into and out of its depot at the west end of such strip. It appears also that there has been, since the conveyance by Wadsworth in 1844, and upon the premises retained by him and bounded by this thirty feet strip, a hotel, which has been accessible from defendant's depot across its tracks, and which has depended largely for its patronage and custom upon the passengers arriving at and departing from such depot of defendant; and up to August, 1881, this thirty feet strip (excepting as twenty feet of it were used by defendant's tracks as above stated) has been open and used by the occupants of the hotel and by travelers as above described, and by the public. In May, 1881, the said Hammatt, as trustee of Brimmer, leased to plaintiff the hotel spoken of for three years, at the annual rent of $4,000; and the plaintiff entered into possession under such lease, and has been and is now carrying on such hotel and restaurant. The further fact was proved that the right of way across this thirty feet strip is beneficial to the hotel and restaurant, and to the plaintiff's possession, and is an appurtenance thereto of great value. In August, 1881, the defendant entered upon the said strip or alley and built a high and substantial fence the whole length of the strip, and on the edge of the twenty feet bordering on the remaining ten feet thereof; and such fence has been kept closed against the plaintiff and all others; and the defendant has thus wholly excluded the plaintiff, his servants, the guests of the hotel and all others from entering upon such twenty feet. The fence is thus a total obstruction in the way of any passage across such twenty feet to all persons coming from the depot to the hotel, or from the hotel to the depot, who might otherwise reach either place. by traveling over this twenty feet, and in this way such obstruction has very greatly lessened the patronage of the hotel and damaged thereby the plaintiff, up to the commencement of this action, in the sum of $300 as found by the trial judge. This action was brought to enjoin the continuance of such fence and to recover damages for the time which it had stood. The comSubsequent to the execution of these deeds plaint contained two counts, the first one statand in May, 1857, defendant's predecessor exe-ing the facts of the conveyance to defendant's cuted quitclaim deeds to the trustees of Brimmer above mentioned, and to the general guardian of Murray, of an undivided half of the remaining ten feet of said "alley;" although it nowhere appears that such predecessor had any title to such ten feet. By mesne conveyances in or about September, 1873, Edward R. Hammatt having become trustee for Brimmer, Jr., as such trustee became, and has ever since been, the owner of the premises now leased to plaintiff, which premises are bounded by, and do not include in the conveyances or lease, any portion of the strip of land heretofore spoken of, although plaintiff claims a predecessor and the dedication of the strip as a public street, and that the parties to the conveyance agreed mutually that the strip should remain and be a public street, and that it was necessary for the proper enjoyment of the hotel and restaurant that this strip should remain a public street. The plaintiff then set forth the erection of the fence, and thus, as he said, defendant wrongfully excluded him from the public street; and he further alleged that such fence was a nuisance. In the second count the strip was called an alley or public highway, and the plaintiff claimed to have an easement or right of way or access across or to the twenty feet strip in question. The plaintiff also alleged (evidently with reference to the language of the deeds to the Railroad Company in 1857) that the defendant had not, since the erection of the fence, maintained an opening into that part of the alley appurtenant to the southerly side of said hotel for the convenient access of passengers and their baggage "to and from the alley or public highway as of right it should have done and was bound to do," and that it had thereby deprived passengers and their baggage of convenient access to said alley or public highway, and thus prevented such passengers and their baggage from entering said hotel at all across or by means of said alley or public highway. The plaintiff then alleged the tracks and the fence to be a nuisance, and asked for an injunction restraining defendant from continuing to permit its tracks to remain in the public street or alley, or from continuing the fence, etc. The answer of defendant was substantially a general denial. When the case came on for trial the counsel for the defendant moved to dismiss the complaint because, so far as the complaint therein showed, the plaintiff was an entire stranger to the whole matter, as the only allegation on that subject was that he was in possession of the premises, and he did not appear as party or privy to any covenant or provision whatever. The plaintiff then moved to amend by, in effect, setting up his lease from the owner; to which defendant's counsel objected that the amendment was not such a one as could be made upon the trial, and that it set up a new and distinct cause of action, and one which was on contract or covenant, and which could not be joined with an action for damages for a nuisThe objections were overruled, and the trial proceeded. The facts heretofore stated were found by the judge, who tried the cause without a jury, and a judgment was decreed enjoining the continuance of the fence, and providing for its removal and for the recovery of the damages sustained by plaintiff, being the sum of $300. The general term affirmed the judgment, and the defendant appealed to this court. ance. We think the amendment allowed by the court was a proper exercise of discretion. It was in no sense the introduction of a new cause of action. Upon defendant's own objection, and assuming it to be well founded, the cause of action in the complaint was defectively stated, because it showed no right or interest on the part of plaintiff to take advantage of the rights, if there were any, of the owner of the premises known as the hotel property. For the purpose of obviating that objection and to show that the plaintiff had the same rights in the property so far as to take advantage of the covenants in regard to it which its owner had, the allegation of the lease was added to the other allegations in the complaint. The defendant's counsel now claims that it appears from the uncontradicted facts that there never was any public street over or on this thirty feet strip, because there never was any acceptance of the dedication on the part of the city authorities or any control over it ever assumed by them. He further argues that the plaintiff, under the pleadings, is not entitled to any relief, for the reason that his rights are therein based upon the alleged fact of the strip being a public street, and when that fact fails his rights fail with it. The concession that there was no public street must be made, and for the reasons stated. It must also be conceded that the plaintiff does in his complaint allege, especially in his first count, that this strip is a public street or highway, and he alleges the fence to be a nuisance for that reason. In the second count, however, we think there are facts enough alleged, especially when the question does not appear to have been very clearly raised before, upon which can be spelled out the assertion of a right on the part of the plaintiff to have access to, and to some extent a right of way over, this strip, even if it be not to all intents and purposes a public highway. In the second count the plaintiff speaks of there being, as appurtenant to the hotel, an easement which he describes, it is true, by metes and bounds, but which a reading of the whole count enables one to say is the allegation of an easement consisting of a right of way over or across some portion of this strip of land for passengers and their baggage, and that the defendant, having erected the fence, had left no opening therein at certain places which were appurtenant to the southerly side of said hotel which of right the defendant should have done. This is clearly a claim founded, not upon the fact that this strip was a highway, and that as such any obstruction thereof was illegal, but it is a claim founded upon a totally different basis; a claim of a right to an opening into the alley appurtenant to the southerly side of the hotel, and for the convenient access of passengers and their baggage; and it was a statement that by erecting this fence the defendant has violated that right and has thereby prevented such passengers and their baggage from entering said hotel, to plaintiff's damage. All that was lacking in this language, to show exactly what fact the claim was founded upon, was the statement that the right of way was reserved by the deeds of Wadsworth, as trustee and guardian, executed in 1857. It might have been ground for a motion to make the complaint more definite and certain; but the claim is obviously not based upon rights arising solely from the assumption that the strip of land was at all events a public highway. If the plaintiff is, therefore, entitled to any relief on this branch of the case by virtue of the reservation in those deeds and which he could obtain on no other ground, I think it should be granted him without the necessity of a reversal of the judgment, because that ground was not specially alleged, and an application to amend his complaint by setting up that right in exact and plain language before entering upon the new trial which would be awarded. By the failure to accept the dedication the thirty feet in question remained the property of Wadsworth, and descended to his devisees at his death. By the deeds of the trustees of Brimmer and the guardian of Murray, all the estate of Brimmer and Murray in the twenty feet of the strip in question was conveyed to the Railroad Company. Such interest was said to be the equal undivided one half part of such portion. But whatever it was, up to that | tained by him), and looking at the further fact amount, such estate was conveyed to the Com- that from 1844 to 1857 this strip in question pany. The title of Murray to about one half had been kept open, and full access to the deof the property upon which the hotel stands, pot and the hotel on Wadsworth's property was and which was bounded upon the said strip had over this strip by passengers, guests and was substantially conveyed to the trustee of the public in general, and that the patronage of Brimmer who is the lessor of the plaintiff. the hotel was largely dependent upon the trayWhatever rights therefore, which the other eling public coming to and departing from said devisees under the will of James Wadsworth depot-all these facts would lead one to the may have in this twenty feet of the original unhesitating conclusion that the language used thirty feet strip, as tenants in common with the in those deeds in 1857 was for the benefit of the Company, about which we say nothing, as hotel property and was not meant to create a nothing is required to be said in this case, it condition subsequent, which courts regard with is clear that the present plaintiff who claims no very friendly eye, upon a failure to perform as lessee of the lessor who executed these which the estate was to be forfeited, and which deeds of 1857, to the Railroad Company, none but the grantor or his heirs could take adcannot raise the question of their invalidity to vantage of. It was intended to be an agreeconvey the interest of the cestui que trust and ment or covenant between the parties running infant Brimmer and Murray. They must be with the land, providing for this access or right regarded as valid deeds and as conveying all of way so as to continue or enhance the value the interests of Brimmer and Murray in this of the hotel property by providing for such twenty feet to the Railroad Company; and such easy access to it from defendant's depot for pasgrantors must be regarded as thereby abandon- sengers and baggage. See Stanley v. Colt, 5 ing all claim to the same as a public street or Wall. 119 [72 U. S. bk. 18, L. ed. 502]; Counhighway. They are no longer tenants in com- tryman v. Deck, 13 Abb. N. C. 110. mon with anyone. The sole remaining question therefore is: What rights, if any, were reserved to Brimmer and Murray by those deeds of 1857? The grantors in those deeds contemplated the possible if not probable erection of a building over this twenty feet, showing thereby a clear intent to abandon all pretense of a claim for its use as a public street or highway, even if such abandonment were not otherwise conclusively shown by the execution of the deeds. But the deeds contained, in addition, language providing for an opening and access to this twenty feet, which language has already been quoted; and the plaintiff claims that if the deeds are valid, this language under all circumstances must be construed to be a covenant and the burden thereof as running with the land conveyed and in favor of those having a legal interest in the hotel lands, and that such covenant makes the right of access and transit to and across this twenty feet a right or easement appurtenant to the hotel premises. On the other hand the defendant claims that the language used makes a condition subsequent which cannot be taken advantage of by any but the grantor and his heirs. We incline to the construction contended for by the plaintiff. The fact that the deeds use the language upon condition," when referring to the conveyance by the grantors, is not conclusive that the intention was to create an estate strictly upon condition. The question is always: What was the intention of the parties? And while such intention is to be gathered from the language used, yet its construction may frequently be aided by reference to all the circumstances surrounding the parties at the time of the execution of the deeds, because the court is thus enabled to be placed exactly in their situation, and to view the case in the light of such surroundings. From the language of the first deed from Wadsworth to defendant's predecessor, in which the land is conveyed to it for the purpose of a passenger and freight depot only (taken in connection with the fact of the existence of a hotel and restaurant at that time on the land re Courts frequently in arriving at the meaning of the words in a written instrument construe that which is in form a condition, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered. See Hilliard, Real Prop. 4th ed. p. 526, § 13; 2 Washb. Real Prop. 3d ed. chap. 14, subd. 3, p. 3 et seq. It is asserted, however, that if this language be treated as a covenant, still the plaintiff cannot take advantage of it, as he is not a party or privy to it. The grantors in these deeds were also the owners of the hotel property, and the easement provided for in the deeds for the transit of passengers and their baggage over this twenty feet must be construed as reserved, not for their benefit in any sense, but as an easement reserved for the benefit and in favor of the grantors being owners of the remaining hotel property, and as appurtenant to it, and fairly necessary for its full and proper enjoyment. It therefore runs with the hotel property and in favor of its owner or lessee, the latter of whom has such an interest in its existence as courts will recognize and protect. As the rights of the plaintiff are in our view dependent upon the deeds of 1857, the judgment must be in accordance with their terms. The courts below erred in not limiting the relief granted to plaintiff by the language of such deeds. As the judgment provided for a full and entire destruction of the fence in question, it must be reversed and a new trial ordered, or else it must be modified so as to provide for an opening into the strip through that or any other fence or obstruction, of a size reasonable, proper and fit, which shall be opposite to the hotel and adjacent to the premises conveyed by the deeds, and large enough for the convenient access of passengers and their baggage to and from the said strip, which opening must at no time be closed against such passengers and their baggage, and which access must be subject to all proper regulations of police and railroad discipline of persons on the said premises. We shall order a reversal of the judgment, although a modification as above stated could be easily provided for, unless the plaintiff consents to waive the damages he recovered in the courts below. We do this because we are greatly dissatisfied with the evidence upon which the recovery as to the damages was based. It was exceedingly vague and loose, if not, to some extent, guess work. It seems also to have been made, to some extent at least, upon a mistaken view as to the defendant's rights and liabilities under its deeds from Wadsworth to the trustee and guardian. Evidence seems also to have been offered and received upon assumption of the right of the plaintiff to a totally unobstructed access to and transit across this whole thirty feet in controversy at all times, ignoring the limitations of the right, as contained in the deeds of 1857, to the Railroad Company. Some portion of the damages may also have been awarded on account of the restaurant in defendant's depot, and its consequent effect upon the patronage of plaintiff's restaurant, and upon the rental value of plaintiff's hotel, which the learned judge thought after all was the criterion for the damages sustained by plaintiff. Under these circumstances we are disposed to order a new trial for the errors as to the general rights of the parties contained in the judgment appealed from, so that upon a new trial with those rights plainly defined, the evidence on the subject of damages may be more direct and confined within smaller limits than it was upon the trial. This reversal, however, may 3. 4. 5. plaintiffs should establish an equitable right to the property it would not entitle them to judgment therefor, except upon the condition of refunding the amount so expended. A court of equity, called upon to settle the equitable rights of the parties, may charge remaindermen with the reimbursement of moneys actually and honestly expended for the beneйt of their estate, and which they were legally liable to pay. When a person in peaceable posses. sion under claim of lawful title, but really under a defective title, has in good faith made permanent improvements, the true owner who seeks the aid of equity to establish his own title will be compelled to reimburse the occupant for his expenditure. Where the deed from executors apparently conferred the legal title under the power of sale contained in the will, the purchaser is under no responsibility for any misapplication by the execu tors, of the consideration paid by him for the land, and is entitled to rely upon their apparent power given to them by the will. (Decided June 7, 1887.) be avoided in the discretion of the plaintiff by APPEAL from a judgment of the Supreme his consenting to waive the damages. If the plaintiff choose, he may consent to waive and remit his recovery for the past damages which he alleges he has sustained, and in that case we will then modify and affirm the judgment as modified in accordance with this opinion, and after striking out the amount recovered for damages. The order will, therefore, be that the judgment of the court below is reversed and a new trial granted, unless plaintiff stipulates to waive the damages contained in such judgment, in which case the judgment will be modified as already stated in this opinion, and as modified, affirmed without costs to either party in this court. All concur. Ellis R. THOMAS et al., Respts., v. Thomas J. EVANS et al., Appts. 1. A claim to recover back property which has been fairly sold and paid for at its full value, and the consideration of which has accrued to the benefit of the plaintiffs, without offering to one who, honestly believing himself to be its lawful owner, expended large sums in its improvement (which constitutes its greatest value) is unjust and inequitable. Court at General Term in the Second Department, affirming a judgment of the Kings Special Term in favor of plaintiffs in an action to vacate and annul certain deeds and for a conveyance and accounting. Reversed. The facts and questions raised appear from the opinion. Mr. George H. Starr, for appellants: The plaintiffs have no equity to maintain this bill. The inheritance was not injured, but received a large pecuniary benefit and was saved from loss, by the sale of the two lots, and there was no fraud or bad faith shown. Greenleaf's Cruise, Real Prop. title 15, chap. 4, § 55; New v. Nicoll, 73 N. Y. 127; Austin v. Munro, 47 N. Y. 366. As the price paid was entirely adequate, and the avails went directly to the benefit of the estate in remainder, the bill should be dismissed. Osgood v. Franklin, 2 Johns. Ch. 22-29; Morse v Royal, 12 Ves. 355; Cobb v. Hatfield, 46 N. Y. 535. The deed was not void, and should not be held voidable, because of the investment that was made of the proceeds. The will conferred upon the executors a valid power in trust over the proceeds of any real estate sold, to continue during the life of the life tenant. It was not a mere naked power of sale. Osgood v. Franklin, 2 Johns. Ch. 1, 20-22; Clark v. Clark, 8 Paige, 152, 160, 161; Livingston v. Murray, 68 N. Y. 492, 493; Tyson v. Blake, 22 N. Y. 561, 562; Smith v. Van Ostrand, 64 N. Y. 281, 282; Champlin v. Haight, 7 Hill, 245. The proceeds of sale were personal assets in the hands of the executors for the payment of debts and legacies, and for general purposes of 2. The purchase price originally paid for |