73 N.J. Eq. 448 | New York Court of Chancery | 1907
(after statement).
A right of way which had never existed as such previously to the lease, and over the remaining premises of the lessor, is not created by and cannot pass under the general word “appurtenances” in the lease. Stuyvesant v. Woodruff, 21 N. J. Law (1 Zab.) 133 (Supreme Court, 1847); Fetters v. Humphreys, 19 N. J. Eq. (4 C. E. Gr.) 475, 476 (Court of Errors and Appeals, 1868); Hazeldine v. McVey, 67 N. J. Eq. (1 Robb.) 275, 277 (Vice-Chancellor Stevens, 1904). On severance of the premises, it may, as a way of necessity, pass with the lease of a portion of the premises, by implication of law, as appurtenant to the
A restoration of the stairway and the establishment of complainant’s right to use it as it existed at the date of making the lease, would, as it seems to me, carry with it the right to use defendant’s store for access to the upper stories for any purpose within complainant’s legal rights of occupation under its lease, and would or might seriously affect defendant’s business, and his occupation of the first story for the purpose of his business, in a manner not contemplated by the parties at the time of making the lease and fixing the rental. Any new substituted way which complainant would have the right, under its lease, to make, for complainant, would apparently be located wholly within the walls of the first story, and necessitate similar interference with defendant’s business. Assuming, therefore, the existence of anjf such right of substituted way, there would be the same objection to its creation by mandatory injunction. On the whole case, therefore, I conclude that if the complainant, on the failure of the new access, insists upon its right to other protection than that .of terminating the lease, and has such additional right, the legal remedy by damages for interference with it, is the remedy to which it should be remitted.
The bill will be dismissed without prejudice to an action at law.