54 N.J. Eq. 270 | New York Court of Chancery | 1896
The question propounded in this case is, whéther the complainants are entitled to a perpetual injunction, restraining the
Nor does the fact that the conveyances were simultaneous, and that they were made for the purpose of effecting a voluntary partition of property theretofore held by a single title, change the rule. Seymour v. Lewis, 2 Beas. 439, 444; Kilgour v. Ashcom, 5 Harr. & J. 82; Blakely v. Sharp, supra.
Now, the presence of a window in use for the purpose of admitting light and air at the time of the conveyances was an apparent easement, as well as' an easement which, in .its quality,was continuous. But it is not every apparent and continuous use of light and air in a building which will become an appurtenance of such building by reason of a severance of the title to the building from the title to its adjoining property. Such an easement must be reasonably necessary to the beneficial enjoyment of the building in which the windows are placed. Blakely v. Sharp, supra; Hayden v. Dutcher, 4 Stew. Eq. 217; Toothe v. Bryce, 5 Dick. Ch. Rep. 589, 608.
In ascertaining whether the window was reasonably necessary to the beneficial enjoyment of the complainants’ building, the condition of the premises at the time of the severance of the title is the point to be kept in view. Now, as the store was lighted at the time when the deeds were interchanged, this window seems to have been a very useful feature in carrying on the tailoring and clothing business, which was then conducted
The test of a reasonable convenience I take to be, whether the presence of the window was so useful to the store and the business conducted therein that it is reasonable to assume that its continued presence was in the mind of the parties and influenced the purchaser in arriving at the amount of the consideration paid at the time of the interchange of properties. Applying this test, in my judgment, the presence of this window was a substantial element in the transaction, and the window must be regarded as one reasonably convenient for the use of complainants’ property.
But it is claimed by the defendants that if these deeds would have operated to convey to the complainants, as an appurtenant, the right of access of light and air through this window, yet that this right, in this instance, is defeated by a stipulation contained in the deed made by Van Meter to the Greers. This stipulation appears in the following language :
“ It is specially understood and agreed between the parties, and this conveyance is made upon the express condition that the eaves of the said Starr Hall building, as well as the projection of the upper wall on the northern side thereof, which are over the line of Edward Van Meter aforesaid, are not to be disturbed or interfered with in any manner by the said Edward Van Meter, his heirs and assigns, whilst the present Starr Hall walls on that side shall remain in the position they are now; but if. at any time hereafter, the Starr Hall building shall be taken down and a new building put up, in that event the wall on the north side next to E. Van Meter’s line must go up perpendicularly from the foundation, and no privilege of eaves.”
The defendants insist that the effect of this clause is to exclude the Greers and their assigns from all privileges over the Van Meter lot save those privileges expressly granted by this stipulation. In support of this insistence is invoked the maxim “ expressio unius est exelusio alterius.”
Now, it seems entirely plain that the maxim can only apply to those express provisions which are so related to the one implied that the latter must be regarded.ás in the mind of the parties at the time wheu the agreement was executed. If the express stipulation concerns one matter, it cannot be presumed that it excluded another matter entirely distinct. I think an illustration of the distinction in mind is afforded by the application of the maxim to the warranty of chattels. It must be kept in mind that the maxim is not only one of construction, but also one of evidence. Now, in respect to an express warranty of quality, Justice Maulé, in delivering judgment in the case of Dickson v. Zizinia, 10 C. B. 602, 610, remarked: “If a man sell a horse and warrants it to be sound, and the vendor knowing at the time that the purchaser wants it for the purpose of carrying a lady, and the horse, though sound, proves to be unfit for that purpose, this would be no breach of warranty; so, with respect to any other kind of warranty, the maxim ‘ expressumfacit cessare taciturn ’ applies to such cases; if this were not so, it would be necessary for the parties to every agreement to provide in terms that they are not to be understood not to be bound by anything which is not expressly set down — which would be manifestly inconvenient.” Broom Max. marg. 586.
But I imagine no legal gentleman would contend that an express warranty, in respect to quality, would tacitly exclude an otherwise implied warranty of title. The reason is that the two
And as the agreement in respect to the non-interference with the walls and eaves was entirely distinct from the matter of the reception of light and air, it can no more raise a presumption that the right to the latter was abandoned than if the deed had contained a clause stipulating for the right to stretch clothes-lines over the adjoining roof and attach the cord to one of defendants’ chimneys.
Uor does the implied right which seems to be contained in the stipulation to build as near to the Starr building as will not interfere with the projecting walls and eaves, carry with it the extinction of the right to light and air through this window, on the theory that the exercise of this implied' right would necessarily obstruct the window, for it is perceived that the right to build does not necessarily include the right to build along the
My conclusion therefore is that the right to the reception of • light and air through this window over the rear of defendants’, lot, resides in the complainants.
The only remaining question concerns the right of. the complainants to invoke the aid of this court to enjoin the proposed, obstruction. The general power of the court to interpose to prevent the destruction of easements of this kind is too well settled for discussion. It is true that when the threatened obstruction of light and air will entail an injury so slight in degree as to be compensated for by a small amount of damages, courts of equity have declined to interfere. The amount of damages likely to result, necessary to confer jurisdiction upon a court of equity to use its injunction powers, is discussed in the Case of Dent v. Auction Mart Co., L. R. 2 Eq. Cas. 238, by Vice-Chancellor Wood, and by Sir George Jessel in Aynsley v. Glover, L. R. 18 Eq. Cas. 544. These deal with instances where there is threatened not an entire darkening of lights, but only a partial obscuration. In this case, the building which the defendants intend to erect will result in an entire closure of complainants’ north window.
I will advise a decree for the complainants.