59 N.J. Eq. 32 | New York Court of Chancery | 1899
The decree in the former case established the right of the owners of the Star Hall building property to an easement in the property of the defendant, the extent of which easement was the right of access of light and air across defendant’s property through this window as light and air had been admitted in 1864.
The insistence made upon the part of the defendant is that the right to access to light and air through the old window was
Whether the owner of an easement has abandoned his right is a question of intention. Veghte v. Raritan Water Power Co., 4 C. E. Gr. 142, S. C., 6 C. E. Gr. 463; Johnson v. Hyde, 6 Stew. Eq. 632; McConnell v. American B. Pm. Co., 14 Stew. Eq. 447.
The rule in respect to the extinguishment of easements by an alteration has been stated thus: when the dominant tenement is so altered as to change the nature of the easement, the easement is extinguished. But the easement is not extinguished if the use is the same in substance though not in quality. 10 Eng. Rul. Cas. 294.
In Luttrell’s Case, 4 Co. 86a, 89a, one Cottrell claimed the right by prescription to have a stream run from a place called Head Wear to his two fulling mills. The fulling mills have been torn down and grist mills built in their stead, and for this reason it was insisted that Cottrell had lost his prescriptive right. But it was held that the implied grant to have a watercourse was to his mill and that he might alter the quality of his mill, provided no prejudice should arise thereby, either by diverting or stopping the water, as it was before. “So,” it was said, arguendo, “if.a man has an old window to his hall, and afterwards he converts his hall into a parlor or any other use, yet it is not lawful for the neighbor to stop it, for he shall pi’e-scribe for all the light in such part of his house.”
In Carlisle v. Cooper, 6 C. E. Gr. 576, 595, Mr. Justice Depue, in speaking of the extent of the right to flowage of water, said : “ The owner of the easement is not bound to use the water in the same manner or apply it to the same mills. He may make alterations and improvements at- his pleasure, provided no prejudice thereby arises to the owner of the servient tenement in the increase of the burden upon his land. * * * A change in the mode of use- or the purpose-for which it is used, or an increase in the capacity of the machinery which is propelled by the water, will not affect the right if the quantity used is hot increased and the change is not to the prejudice of others.”
“The act must he such as indicates an intention to extinguish the easement, or it must be something which enhances the burden upon the servient estate to the injury of some against the consent of the owner thereof.” Washb. Easem. 70S.
The question involving the destruction of the right to the enjoyment of light by reason of changes made in the building by the owner, the dominant tenant, was much discussed in the house of lords in the leading ease of Tapling v. Jones, 11 H. L. Cas. 290. In that case the plaintiff, while entitled to a right to light through certain windows, pulled down the houses and built on their site a new warehouse.
In doing so he altered the position and enlarged the dimensions ■ of the windows previously existing and increased the height of the building. He also put in new windows. The new windows and lights were so placed that it was impossible for the owner of the adjacent property to block them without also blocking those parts of the new window which occupied the site of the old windows.
The question was whether the owner of the servient tenement, for the purpose of preventing the access of light through the new windows from ripening, by user into a right, could- block them up, although, by such an act, he must necessarily obstruct the new windows, which apparently occupied the same place as the old windows. It was held (overruling Renshaw v. Bean, 18 Q. B. 112, and Hutchinson v. Copestake, 9 C. B. (N. S.) 863.) that he could not do so.
The point of the decisiou pertinent to the present case is that it was assumed that, although the plaintiff had torn down one and erected another building with new and enlarged windows, yet his right to receive light through the new windows remained unextinguished.
In Newson v. Pender, 27 Ch. Div. 43, an owner of an ancient dwelling which had numerous windows pulled it down and rebuilt it. A few of the windows in the new house included the space occupied by ancient windows, but were of larger dimen
In Scott v. Pape, 31 Ch. Div. 554, a building with ancient lights was torn down, and new ones built higher than the old and lighted by larger and more numerous windows. The east wall of the new building was advanced so as to include part of what had been previously a part of the'yard. It was held that no alteration in the plan of the windows of the dominant tenement, either by advancement or setting back the buildings, would destroy the right to light, so long as he could show that he is using through the new aperture in the wall of the new building the same or a substantial part of the same light which passed through the old aperture into the old building.
It was held though the right was not in gross but one which must be claimed in respect to a building, yet it may be claimed in respect to any building which is enjoying the whole or a substantial part of the right which passed into the dominant tenement through the old aperture. It was also held in the last two cases that while an intention to abandon the right to light was one of fact, yet the destruction of one building and the erection of another building with windows which used the same light, where there had been no loss of evidence and no incapacity to prove the identity of the old light, and that which had been interfered with, was not proof of an intention to abandon.
The above case deals with ancient lights. But the question of abandonment or extinction is precisely the same in whatever manner the light may have arisen. Whether the right arose by prescription, which presumes a grant, or by express or implied covenant or reservation, or by an implied grant resulting from the sale of a part of the premises which has upon it an open and continuous easement, matters not, for the question is not how the right arose, but whether, if once existing, it has been extinguished.
It will be extinguished, undoubtedly, by any conduct on the part of the owner of the dominant tenement, which unequivocally exhibits an intention to .abandon it. Such an act is in
So, again, if the building is torn down and the locality of the old windows, from delay in rebuilding or from a failure to preserve evidence of their situation, cannot be proved, the .same result would follow.
But none of these conditions exist in the present case.
The plans for the erection of the new building admittedly showed a window in the same place as the old. The defendant was notified of the intention of the complainant to erect such new building with such a window. The new building was erected with reasonable expedition, according to the plans.
Therefore, the right still exists, and a decree will be advised in accordance with the prayer of the bill.
