52 N.Y.S. 1092 | N.Y. App. Div. | 1898
Frances L. Johnson, in 1894, was the owner of a plot of land in the city of Brooklyn, on the northwest corner of Halsey street and Nostrand avenue, the plot being forty-eight feet six inches front on Halsey street and one hundred feet in depth ón Nostrand avenue. On this plot were two structures. The corner building was a flat or tenement house, having a frontage of twenty-nine feet on Halsey
We think the law is clear in this State that “if one grants a house having-windows looking out over vacant land, whether his own or otherwise, he does not grant therewith any easement of light and air, unless it be by express terms ;. it never passes by implication.” (2 Washb. Real Prop. [5th ed.] 364 ; Shipman v. Beers, 2 Abb. N. C. 435 ; Doyle v. Lord, 64 N. Y. 432; Myers v. Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. 316; Keats v. Hugo, 115 Mass. 204.) Eor does the fact that the windows are in a party wall take this case without the rule. The paramount object for which a party wall is constructed is the maintenance and sujjport of the adjacent buildings. In this city it is also the custom in constructing such walls between dwelling houses to place therein flues for use in the adjoining buildings. But these are the only purposes, so far as our knowledge extends, to which such.walls are .devoted. The easement of the owner of either building extends only over so much of his neighbor’s land as -the party wall stands upon, and such easement consists merely in the right to the support of-the wall and the presence of the flues which may be in it. It has been held that either of the owners may increase the height of the party wall, provided such increase can be made without detriment to the strength of the wall. (Brooks v. Curtis, 50 N. Y. 639.) A fortiori has an
It is contended for the defendant that by the conveyance to the plaintiff’s predecessor in title of half the party wall, it was intended to reserve to the grantor in that conveyance a right to the wall in the precise condition which then existed. We think there is no such presumption. An easement in favor of a grantor is not so readily implied as one in favor of a grantee, and evén in favor of a grantee it would be implied only where it is strictly necessary for the enjoyment of the grant. (Wells v. Garbutt, 132 N. Y. 430.) While the easement of light and air from the vacant yard of the adjoining premises is advantageous to the enjoyment of the flat house, it is not strictly necessary to its use, for on two sides the house fronts on open streets. But apart from this consideration, unless the defendant is entitled fcr have the rear portion of the plaintiff’s premises open and unimproved, the right to maintain the window openings through the whole width of the party wall would be of no practical benefit, for the plaintiff might obstruct such openings by building or placing screens upon his own land beyond the limits of the party wall. There can be no reason for presuming the reservation of an easement which is wholly without value.
As already stated, we are of opinion that under the custom prevalent in this community the easement of a party wall extends to the maintenance of chimney flues therein. Even apart from custom, plaintiff’s dwelling house having been constructed with its flues in the party wall, the right to maintain the Aims would pass to him by implication. (Rogers v. Sinsheimer, 50 N. Y. 646.)
There should be judgment for the plaintiff on the agreed statement of facts, that he can close up the windows in defendant’s house, and that he is entitled to the maintenance of the flues in the party wall, with costs.
All concurred, except Woodward, J., absent.
Judgment for plaintiff on agreed statement of facts, with costs.