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HomeMy WebLinkAboutL 12094 P 666SUFFOLK COUNTY CLERK RECORDS OFFICE RECORDING PAGE Type of Instrument: ORDER VACATING DEED Recorded: 01/04/2001 Number of Pages: 8 At: 12:56:39 PM LIBER: D00012094 PAGE: 666 District: Section: Block: Lot: 1000 110.00 07.00 020.000 EXAMINED AND CHARGED AS FOLLOWS Received the Following Fees For Above Instrument Exempt Exempt Page/Filing $24.00 NO Handling $5.00 NO COE $5.00 NO Notation $0.00 NO Cert.Copies $8.00 NO RPT $15.00 NO SCTM $0.00 NO Fees Paid $57.00 THIS PAGE IS A PART OF THE INSTRUMENT Edward P.Romaine County Clerk, Suffolk County L2 3 Number of pages RECORDED TORRENS 2001 San 04 12:56:39 PI9 Edaiard P.Romaine Serial # CLERK OF SUFFOLK COUNT'/ Certificate ff L 000012094 ? 666 Prior Ctf. 9 Deed/ Mortgage Instrument Deed / Mortgage Tax Stamp Recording / Filing Stamps 4 1 FEES Page / Filing Fee y Mortgage Amt. Handling 1. Basic Tax TP -584 2. Additional Tax Notation Sub Total EA -52 17 (County) Sub Total Spec./Assit. Or EA -5217 (State) Spec. /Add. RP.T.S.A. �(®rI` TOT. MTG. TAX Comm. of Ed.5 00 CIA, Dual Town Dual County Held for Apportionment Affidavit + �+ 'transfer Tax q Certified Copy �• Mansion Tax The property covered by this mortgage is or Reg. Copy will be improved by a one or two family Sub'rotal dwelling only. Other YES -or -NO -If NO, see appropriate tax clause on page 9 orchis instrurnent. 5. Real Property Tax Service Agency Verification G 1 Community Preservation Fund Dist. Section Block Lot Consideration Amount $ n CPF Tax Due S J Sati sfact ion s/D ischarges/Releases List Property Owners Mailing n l RECORD & RETURN TO: It�S-7 r Co. Name Title # Improved Vacant Land TD TD TD Title Company information 9 �!iuttolK Loamy Kecoraing & hna ors`e�ment rage forms 'lllis page part of the attached D�'G{ CI(, { ��� 1.1� cll--1 t made by: (SPECIFY TYPE OF INSTRUMENT) The premises herein is situated iii SUFFOLK COUNTY, NEW YORK. •ro In the Township of In the VILLAGE or HAMLET of x BOXES 5 TI IRU 9 MUST BE TYPED OR PRINTED 1N BLACK INK ONLY PRIOR TO RECORDING OR FILING. (OVER) Dear Taxpayer, Your satisfaction of mortgage has been filed in my office and I am enclosing the original copy for your records. If a portion of your monthly mortgage payment included your property taxes, you will now need to contact your local Town Tax Receiver so that you may be billed directly for all future property tax bills. Local property taxes are payable twice a year: on or before January 101h and on or before May 31". Failure to make paymcnts in a timely fashion could result in a penalty. Please contact your local Town Tax Receiver with any questions regarding property tax payment. Babylon Town Receiver of Taxes 200 East Sunrise Highway North Lindenhurst, N.Y. 11757 (516) 957-3004 Brookhaven Town Receiver of Taxes 250 East Main Street Port Jefferson, N.Y. 11777 (516)473-0236 East Hampton Town Receiver of Taxes 300 Pantigo Place East Hampton, N.Y. 11937 (516) 324-2770 Huntington Town Receiver of Taxes 100 Main Street Iluntington, N.Y. 11743 (516)351-3217 Islip Town Receiver of Taxes 40 Nassau Avenue Islip, N.Y. 11751 (516) 224-5580 dw 2/99 Riverhead Town Receiver of Taxes 200 Howell Avenue Riverhead, N. Y. 11901 (516)727-3200 Shelter Island Town Receiver of Taxes Shelter Island Town Hall Shelter Island, N.Y. 11964 (516) 749-3338 Smithtown Town Receiver of Taxes 99 West Main Street Smithtown, N.Y. 11787 (516) 360-7610 Southampton Town Receiver of Taxes 116 Hampton Road Southampton, N.Y. 11968 (516)283-6514 Southold Town Receiver of Taxes 53095 Main Road Southold, N.Y. 11971 (516)765-1803 Sincerely, Edward P. Romaine Suffolk County Clerk 12-0104:: v,W SHORT =0;.a ca._DeR PUBLISH INDEX No. 96-31813 CAL No. 99 -00651 -BO Si7PREME COURT - STATE OF NEW YORK CALENDAR CONTROL PART SUFFOLK COUNTY PRESENT: Hon. ROBERT W. DOYLE MOTION DATE 6/12/00 Justice of the Supreme Court - ADJ. DATES Mot. Seq. A 002 - MG; CASEDISP ---------------------------------- X LAWRENCE KISSLING and EUGENIA KISSLING, Plaintiffs, BENJAMIN J. SCHWARTZ, ESQ. Attys. for Plaintiffs 1845 Fleetwood Rd. Cutchogue, NY 11935 -against- ADOLPH H. SIEGEL, ESQ. Atty. for Defendants BARBARA BALDWIN LEARY and BRUCE 145 E. Sunrise Hwy. LEARY, Lindenhurst, NY 1.1757 Defendants. -----------------------------------X U on the following gapers numbered 1 to 44 read on this motion for summa 'ud ent after restoration per order dated S19/00 ; Notice of Motion/Order to Show Cause and supporting papers 1 to 22 ; Notice of Cross Motion and supporting Papers Answering Affidavits and supporting papers 23-27 ; Replying Affidavits and supporting papers 38-44 ; Other ; (mid after hearingcounselin support and oppose t) it Is, ORDERED the Courts -iia sponte recalls and vacates prior order signed November 23, 2000, entered November 27, 2000 and the following is hereby issued in its place and stead, without prejudice to any party (CPLR 2001). This substituted order corrects typographical errors which appeared in the order vacated on page 2, line 3, with reference to Liber, which should have been 11786 and on page 5, subparagraph (4), line 1, with reference to the plaintiff, which should have been to the defendant as the bona fide purchaser; and it is further ORDERED that summary judgment in favor of the defendants, is granted on the prima facie proof adduced and in the absence of any issue of fact requiring trial, (Zuekerman a City of Neu, York, 49 NY2d 557, 427 NYS2d 595 [1980]). The verified complaint is accordingly dismissed (CPLR 321113212; RPL §§ 291, 239; RPAPL § 1501 et seq.); and it is ORDERED that the bargain and sale deed delivered by the heirs of predecessor owners William R. Mollineaux, Jr. and Florence C. Mollineaux, dated June 3, 1996 to Bruce Leary and Barbara Baldwin Leary, which was recorded July 24; 1996 in Liber 11784, page 157, is valid. The Court declares that said defendants are the honafide purchasers of the premises in good faith, for reasonable value based upon objective appraisal, without notice of prior claim or deed. The conveyance is subject to a ninety-nine (99) year written lease between Lawrence J. Kissling and Florence C. Mollineaux that was recorded on August 26, 1943 in Liber 2305, page 446. The real property formerly owned in fee by the MoVineauxs as described in the above deed, is also known as 710 East Road, Cutchogue, New York; and it is Kissling v Leary Index No. 96-31813 Page ? ORDERED that the quitclaim deed delivered by Florence C. Mollineaux, the surviving tenant by the entirety of William R Mollineaux, Jr. to Lawrence J. Kissling, Jr., for the nominal consideration of $10.00, dated July 15, 1943, was intentionally not recorded until August 9, 1996, in Liber 11786, page 788, and is void having been preceded by prior recorded bargain and sale deed on July 24,1996. The deed and conveyance recorded August 9, 1996 is canceled on the record, upon service of a copy of the within order, with notice of entry thereon, on the Clerk of the County of Suffolk. Plaintiff, Lawrence J. Kissling, Jr., has admitted that he failed to duly record the 1943 deed to avoid the termination of an express right of way over a footpath located on the defendants' real property to the Peconic Bay. The express right of way ,*ranted by deed dated June 3, 1930, recorded June 10, 1930, was subject to reversion to.the defendant owners of the adjoining parcel known as 780 East Road, Cutchogue, NY, upon a conveyance of the dominant parcel known as 710 East Road, Cutchogue, NY, by the Mollineauxs or their heirs. The documentary proof demonstrates that the Mollineaux heirs transferred the premises to the Learys by deed recorded July 24, 1996. Neither the plaintiff nor his wife Eugenia Kissling is the owner in fee of the real property known as 710 East Road, Cutchogue, New York. Both the deed between the Mollineaux heirs and the Learys dated June 3, 1996, recorded July 24, 1996 in Liber 11784, page 137, and the original deed between Lawrence and Elsie Allen his wife, to William and Florence MoIlineaux, dated June 3, 1930, recorded June 10, 1930, in Liber I506, page 420 provide for the extinction of the right of way over the footpath to Peconic Bay, upon the transfer of the premises by the Mollineauxs; and it is ORDERED that the plaintiffs' use of the express right of way, which is a foot path over the defendants' parcel to the Peconic Bay, pursuant to the terms of deeds, dated: (i) June 1930, recorded June 10, 1930; (ii) August 30, 1935, recorded January 13, 1936, in Liber 1865, page 501; (iii) March 14, 1979, recorded March 22, 1979; (iv) June 3, 1996, recorded July 24, 1996; and (v) July 15, 1943, recorded August 9, 1996, have been extinguished as a matter of law by the transfer of title and timely recording of the deed from the Mollineauxs to the Learys. Had said deed not been recorded on July 24, 1996, the right of way footpath would have been terminated by operation of law pursuant to purported delivery of the deed dated July 15, 1943 which was not recorded for 53 years; and it is further ORDERED that the lease, dated July 15, 1943, recorded August 26, 1943, in Liber 2305 0£ conveyances. page 446, between )Florence C. Mollineaux and Lawrence J. Kissling, Jr., expressly provides for a 99 year term of occupancy, for value in the single sum of $4,000.0+). The lease included an entitlement to use the right of way footpath to the Peconic Bay over the Baldwin/Leary premises, until a conveyance by the Mollineauxs occurred. In such event, the right of way would terminate. By Order and Judgment entered October 22, 1959. this Court concluded that the lease did not effect a conveyance of the parcel or the lessee's right of way footpath. Pending the expiration of the Iease term in the year 2042, or prior termination by agreement, order, conveyance or alternative event, the plaintiff was entitled to continued possession and use of the premises under the terms of the lease {RPL § 223; Hurt vSocony-Vacuum Oil Co., 291 NY13, 50 NE2d 295 [1943]; 815 Parc 0wnen Inc... v West LB Admin, Inc.,. 119 Misc2d 671, 463 NYS2d 1015 [1983]).. In this action, the plaintiffs seek judgment to cancel the bargain and sale deed delivered to defendants by the Mollineaux heirs, dated June 3, 1996, and -re -corded July 24, 1996, in the Office of the Clerk of Suffolk County, in Liber 11784, page 157. The plaintiff, Lawrence Kissling, Jr., requests that he and his wife by succession, be adjudged the lawful owners in fee of the premises known as 710 East Road, Kissling v Leary Index No. 96-31813 Page 3 Cutchogue, pursuant to the deed allegedly delivered to Lawrence Kissling by Florence C. Mollineaux, dated July 15, 1943, though not recorded until August 9, 1996, subsequent delivery and recording of Leary's deed to the same real property. The plaintiff, Lawrence Kissling, Jr, and the defendant, Barbara Baldwin Leary, resided on adjoining parcels of real property for 57 years. Both premises were originally owned in common by Lawrence Allen and Elsie H. Allen, his wife. The Allens initially transferred that portion of their land at 710 East Road, to William R. Mollineaux, Jr. and Florence C. Mollineaux, his wife. Pursuant to this deed, dated June 3, 1930, recorded June 10, 1930, two rights of way were expressly granted over the remaining Allen property at 780 East Road, now owned by the defendants. The right of way created in favor of the Mollineauxs over a footpath which lead to the Peconic Bay on 780 East Road, was subject to a reversion to the Allens or a successive servient owner in fee, when the Mollineauxs or their heirs conveyed title in fee of 710 East Road, to a third party. William Mollineaux died on November 19, 1940 survived by Florence C. Mollineaux. Florence leased the premises to the plaintiff on July 15, 1943. Florence h•lollineaux died sometime in 1957. The Allens conveyed the remaining portion of their original parcel to William J. Brown, the father of Florence A. Baldwin, who was the mother of defendant, Barbara Baldwin Leary. A deed from Allen to Brown dated August 30, 1935, was recorded on January 13, 1936, in Liber 1845 of Conveyances, page 501. The deed expressly provides that the right of way over a footpath to the Peconic Bay which is located on the Brown/Baldwin/Leary property would terminate upon a conveyance by the Mollineauxs. Florence A. Baldwin succeeded to the interest in her father, William J. Brown. By deed, dated March 14, 1979, recorded March 22, 1979, Florence Baldwin's title was thereafter conveyed to her daughter, defendant, Barbara Baldwin Leary. After the Allens' had conveyed both parcels, the premises at 710 East Road, Cutchogue, owned by Florence Mollineaux, was leased to Lawrence J. Kissling, Jr. The lease, dated July 15, 1943, was recorded by plaintiff on August 26, 1943 in Liber 2305, page 446. The plaintiff appears to have paid a lump sum of $4,000 for a 99 year term. The lease expressly included the use of the right of way footpath to Peconic Bay over the adjoining premises at 780 East Road, for only so long as title to the leased parcel was retained in fee, and not conveyed by the Mollineauxs or their heirs. In accord with the lease the plaintiff retained complete possession, control, occupancy and use of the premises at 710 East Road, including the right of way over defendants' parcel at 780 East Road, for 57 years. A dispute arose in 1953 from the collapse of a retaining wall between the parcels. The conflict escalated into litigation. Florence A. Baldwin, defendant Barbara's mother, sued Lawrence Kissling to enjoin an alleged trespass related to the right of way footpath. Florence Baldwin, alleged that the 99 year lease was merely a pretext to cover for a conveyance of the 710 East Road parcel and to allow Kissling to continue use of the right of way on the Baldwin property. After Florence Mollineaux died in 1957, the Mollineaux heirs appeared to have virtually relinquished control or interest of the leasehold and the property. Thus, Florence Baldwin contended that the easement should be deemed extinct and Kissling be found a trespasser. By memorandum decision dated September 29, 1959, and judgment entered October 22, 1959, the Supreme Court, Honorable Justice Ritchie, dismissed the Baldwin action bearing index No. 58-47379. The Court declined to determine whether title had been conveyed, in the absence of Kissling v Leary Index No. 96-31813 Page 4 jurisdiction over the record owner who had not been named a party. The Court also refused to construe the lease as a divestment of title by the Mollineaux heirs, without proof of intent. The only party to the lease or conveyance with proof of intent was Kissling. Kissling confirmed that there had been no conveyance and his use and occupancy was continued pursuant to the existing lease. - Kissling prevailed in the litigation and upon entry of the 1959 judgment, the status'rernained 'unchanged for 41 more years. During the intervening years, plaintiffs repeatedly held that their occupancy, use and possession of the premises -was by leasehold. Following the judgment in 1959 which determined that the leasehold had not terminated the right of way, Lawrence Kissling represented to the Town of Southold Building Department in 1993 that his opposition to development proposed by the defendants was based on his leasehold interest in the prernises. In 1995, the defendants were informed that Kissling intended to sell, sublet or assign his remaining leasehold interest. Defendants retained counsel who located the Mollineaux heirs to contract for the purchase of the premises at 710 East Road. The Learys negotiated a $10,000 purchase price. based on an appraised market value reduced by the outstanding leasehold interest until 2042. Title was searched by Fidelity National Title Insurance Co. of NY and certified. The closing of title occurred on June 3, 1996. The deed was recorded in Liber 11794, page 157 on July 24, 1996. By letter, dated July 23, 1996, plaintiffs were advised that the defendants had purchased the premises at 714 East Road, Cutchogue, New York. Plaintiffs were further advised that pursuant to the conveyance, the plaintiffs' right of way over the footpath to the Peconic Bay located on the defendants' parcel was terminated. Upon receipt of notice Kissling retrieved the July 15, 1943 deed from the safe deposit box and recorded the instrument with the Suffolk County Clerk on August 9,.1996. Thereafter the within action was filed in December, 1996, issue was joined by verified answer, amended and served on January 22, 1997. Plaintiffs contend that the bargain and sale deed recorded by Barbara Baldwin and Bruce Leary on July 24, 1996, in Liber 11784, page 157, which preceded the filing of Kissling's deed on August 9, 1996 should be canceled. Kissling relies on 57 years of possession and use notwithstanding the deceptive circumstances and his advanced age. There is no basis in fact or law for plaintiff to prevail (RPL §§ 239, 291; RPAPL §§ 1501, 1517, 1521; bitter v Taggart, 78 NY2d 234, 573 NYS2d 146 [19911, Tanzini v Sunset Reach Property Owners ,4lM����� SZd 522, lv to app den, 82 NY2d 665, 610 NYS2d 152 (19931; Keller v on, 173 AD2d 979, 569 NYS2d 491 [1991]). Plaintiff is critical that the defendants located the Mollineaux heirs in 1996 when advised that Kissling had considered a sale, sublet or assignment of what defendants believed was the long term lease. Kissling contends the defendants were obliged to inquire from the plaintiff, visitors and prospective purchasers regarding title, actual legal status of the premises and to disclose their intent to buy. In opposition to the within motion for summary judgment, plaintiffs challenge without proof, the validity of the estate interest in the premises, the good faith of the defendants, the reasonable value of the consideration paid and the veracity of defendants' denial of notice of plaintiffs title. Under the recording acts, notice is directed only to matters. of record ( RPL § 291; Doyle v LazZaro, 33 AD2d 142, 306 NYS2d 268, affd 33 NY2d 981, 353 NYS2d 740 [1970]). Defendants were mandated to continue the plaintiff's use of their property over the right of way to Peconic Bay. Had plaintiff disclosed the 1943 unrecorded Kissling v Leary Index No. 96-31813 Page 5 deed, the right of way enjoyed by plaintiffs for 53 years would have ended sooner. Thus, the Court concludes that the prima facie proof submitted on this record has unequivocally established that: (.1) The defendants Barbara Baldwin Leary and Bruce Leary are the owners in fee of the premises lmown as 710 East Road, Cutchogue, New York, pursuant to deed executed and delivered by the Mollineaux heirs to the Learys, dated June 3, 1996, recorded July 24, 1996, subject to a lease dated July 15, 1943, recorded by Lawrence Kissling, Jr., on August 26, 1996: and (2) The defendants Barbara Baldwin Leary and Bruce Leary are the successor owners in fee of the premises known as 780 East Road, Cutchogue, New York, which premises adjoins the property known as 710 East Road, Cutchogue, New York, pursuant to deed delivered by Florence A. Baldwin to Barbara Leary, dated March 14, 1979, recorded March 22, 1979, which was expressly subject to two (2) rights of way. One right of way which is the footpath to Peconic Bay was subject to expire upon the transfer of title to 710 East Road, by the Mollineauxs or their heirs. This right was ultimately extinguished by defendants' deed recorded July 24, 1996; and (3) The plaintiff Lawrence Kissling, Jr. is the holder of a leasehold interest in the premises known as 710 East Road, Cutchogue, New York, originally entitled to two (2) rights of way over the defendants' property created by 1930 deed which endured for 70 years. One right is situate on the TW corner over a strip 6f land 20' wide, extending from East Road along the easterly side to a depth of 98'4" and the other right of way was a over the footpath to the Peconic Bay located on the north line of defendants' premises, situate on the west side of Peconic Bay. This latter right of way was extinguished by the conveyance of the Mollineaux property at 710 East Road, Cutchogue to the defendants by deed recorded July 24, 1996; and (4) In the absence of any proof to the contrary, the defendants are bora fide purchasers in good faith for value in the sum of $10,000.00, having purchased the premises at 710 East Road, Cutchogue, New York, without notice of prior deed, subject to the plaintiffs' 99 year lease with 46 years remaining to term on the date of appraisal July 17, 1996; and (5) The plaintiff Lawrence Kissling, Jr. has admitted the denial of a title interest in 710 East Road, Cutchogue, New York to the Supreme Court, a municipal agency and to the defendants among others for 53 years. Plaintiff failed and refused to' disclose his alleged title interest until after defendants purchased the property and recorded the deed. Plaintiff also admits that the deed purportedly delivered by Florence C. Mollineaux to the premises on July 15, 1943 was intentionally not recorded or disclosed on advice of the seller's counsel in 1943, to prevent the loss of the right of way over the defendants' premises at 780 East Road, Cutchogue, New York to the Peconic Bay. It is clear that plaintiff understood the nature and consequences of lus acts and the intent of the recording statutes (RPL § 2.91,Andy Associates, Inc. v Bunkers Trust Co., 49 N-Y2d 13, 424 NYS2d 139 [ 1979]). Plaintiff immediately recorded the lease, dated July 15 1943 on August 26, 1943 and withheld the deed which he currently admits was delivered the same date. Plaintiff has publically asserted his leasehold interest for 53 years and attempted to sell his unrecorded, undisclosed title interest without notice to defendants. Defendants legal purchase of the Mollineaux interest and first recording of the deed, has finally foreclosed plaintiffs' title and beneficial interest in the right of way footpath. Kissiine v Leary . Index No. 96-31813 Page 6 On a motion for summary judgment, the function is issue finding rather than determination (Sillnlan v 20' Century -Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1956 ]). All reasonable inferences are drawn in favor of the non-moving party and issues of credibility are not considered (Capelin Assoc. Inc. v Globe Xffg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]). However, when a movant has primafacie shown that no issues of fact exist requiring trial, and the evidence in opposition fails to rebut the proof or raise an issue of fact to otherwise defeat the motion, summary judgment is warranted (RPL § 291; RPAPL §§ 1501 el seel., 15 17, 152 1; CPLR 321 I2; Foster v Piasecki, 259 AD2d 804, 686 N`1c'S2d 84 { I999]; Treadwell v Xnselee, 120 NTY 458, 24 N"E 651 [1890]; Witter v Taggart, supra; Route 22 Associates v Cipes, 204 AD2d 705, 613 NY52d 33 [19941). DATED: 9EC ') r Z�,tl:° COUNTY CLERK'S OFFICE STATE OF NEW YORK SS.: COUNTY OF SUFFOLK I, EDWARD P. ROMAINE, Cleric of the County of Suffolk and the Court of Record thereof, do hereby certify that I have compared the annexed with the original . Cr.% ................ FILED in my office ... y,..4?��•1...... and, that the same is a true kopy thereof, and of the whole of such original. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said County and Court th '+ • •. r?QO l ..... ' Clerk. 12.102.1IS&= Form No. 236 STATUTORY FORM D-:57 10.4 Inbentum mndi the - 15f.%h day of Iliiy nineteen hundred and forty-three. e. Naluce .J: re, �. f0 iC,_:,lif i7:i:;., of ;illi,., F. 1-t 2/.7 !�nl- ^.t Pa -',.via:, , Eer-nztsad� 1 [• 3'>_•-(r LEOM UTY POM FOR M:11=r6W a ;i I� 011i::LFsc i i. 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