Hagerty v. Lee

45 N.J. Eq. 1 | New York Court of Chancery | 1889

The Chancellor.

I think that the reservation in the deed from complainant to Winters operated as a grant of an easement in the lands of Winters. In Goddard on Easements 108, it is said : “An easement cannot strictly be made the subject either of exception or reservation in a deed of conveyance of land, for it is neither parcel of the land granted, which circumstance is requisite to enable a thing to be expected, nor does it issue out of the land, as it should to render it capable of being the subject of a reservation. If, therefore, an easement be incorrectly reserved to a grantor of land, or excepted from the land conveyed, the reservation or exception operates as a grant of a newly-created easement by the grantee of the land to the grantor.” Rosenkrans v. Snover, 4 C. E. Gr. 420; Cooper v. Louanstein, 10 Stew. Eq. 284.

It seems to be free from question that the easement extends at least to a sufficiency of light and air from the defendant’s premises, although the right of the complainant, under the reservation, to maintain an unlimited and unnecessary number of windows may be doubtful, or at all events is unsettled.

In such a position of affairs I would have no hesitation in restraining any erection that would so deprive the complainant of light and air as to render his occupation of his house decidedly uncomfortable. But he fails to show that he will suffer substantial privation of light or air by the threatened obstruction of the windows of his house. His bill alleges that two windows will be closed and that two other windows will be partially obstructed and darkened, but it does not state that thereby the passage of light and air to his house will be substantially hindered. The defendant, on the other hand, by his answer, insists that, although the obstruction will shut up two windows, it will leave a window or windows in each room of complainant’s house through which an abundance of air and light may enter.

Taking the allegation of the answer as true, the proposed office-of the injunction is to restrain the erection of a building that will obstruct unnecessary windows. The-right to maintain such windows should be established at law before an injunction should issue. Citizens Coach Co. v. Camden Horse R. R. Co., 2 Stew. Eq. 299.

I will order that the injunction be dissolved, with costs.