Jarman v. Freeman, 78 N.J. Eq. 464

78 N.J. Eq. 464 | New York Court of Chancery | 1911

Leaming, V. C.

From the above statement of facts it will be observed that the deed from Kelly to complainant’s devisor was operative to create an easement of way and drainage appurtenant to the land conveyed. The terms of the grant sufficiently define the character, extent and purpose of the easement; these terms unmistakably disclose that it was intended as a private way for travel and 'drainage for the benefit of the land laterally adjacent to the alley, with the burden of maintenance equally imposed upon the owners of the lands on either side of the way. The grantor retained the fee of the land over which the way was to pass. The grantee, as owner of the dominant tenement, thus became entitled to the enjoyment of the easement for the benefit of his land, subject to an equal right of enjoyment in behalf of the adjacent land of the grantor. These rights of the grantee have passed to complainant by the devise of the dominant tenement to him.

Under the conditions stated, little doubt can be said to exist touching the respective rights of the owners and the privileges which they may enjoy with reference to the way. It is in entire harmony with both reason and authority that the owner of such dominant tenement should not be privileged to extend or enlarge the easement of way to accommodate land other than that to which it is appurtenant; he is only privileged to enjoy the estate granted, and such extension would be clearly outside the terms of the grant. Davenport v. Lamson, 21 Pick. (Mass.) 72; Hoosier Stone Co. v. Malott, 130 Ind. 21; Louisville, N. A. & C. R. Co. v. Malott, 135 Ind. 113; Albert v. Thomas, 73 Md. 181. The rights of the owner of the servient tenement are necessarily less limited. He is the owner of the fee in the land over which the way passes. His rights are not founded in grant, and he majq in consequence, use his property in any manner and for any purpose, consistent with the full enjoyment of the easement. These rights have been held to include-the right to suspend structures above the way and to mine under the way. But he cannot use his property in a manner to materially impair or interfere with the easement which he has granted, and the owner of the easement may prevent such use. Atkins v. Boardman, 2 Met. (Mass.) 457, 467; Proprietors Locks, &c., v. N. & L. Ry. Co., 104 Mass. 1, 11; Herman v. Roberts, 119 N. Y. 37; Shivers v. Shivers, 32 N. J. Eq. (5 Stew.) 578. It necessarily follows that the owner of the servient tenement cannot lawfully extend the use of the way to other lands when such added use is operative to interfere with the full enjoyment of the easement in behalf of the dominant tenement, or to increase the burden of repair which accompanies the easement.

In the present case, I think it reasonably manifest that the extension of the privilege of use of the way in question to the property now owned 'by defendant is operative to interfere with the full enjoyment by complainant of the easement which is appurtenant to his land; while the injury may be but slight, it, nevertheless, seems apparent that to extend the use of the way for the benefit of the land in question will tend to interfere with the full exercise by complainant of the rights vested in him under his grant, and will also increase his burden of repair. In this view it follows that the reservation in behalf of Kelly’s newly acquired land, contained in the deed from Kelly to the trust company, and that the grant of the right to use the way, contained in the deed from Kelly to defendant, are void as against complainant, in so far as they are operative to interfere with the full enjoyment of complainant’s rights under the easement. The case of Greene v. Canny, 137 Mass. 64, is in point. Touching the effect of such a grant it is there said (at p. 68) : “To grant others than the owner of these lots rights of way would be to grant obstructions of those which he had already granted. It would add to the expense of those who were to keep the way in repair, while their own enjoyment would be less convenient and beneficial, as it might be more or less interfered with by the enjoyment of others.” And on page 70 it is held that the ownership of the fee in the way confers no right to extend the privilege to use the way to persons other than the persons for whose use the way was created.

But I think it here unnecessary to positively determine whether the use of the way by defendant will materially interfere with the full enjoyment by complainant of his easement, for the evidence now before this court discloses sufficient doubt to exist, touching complainant’s right to equitable relief, to necessitate the refusal of a preliminary writ.

It is a familiar equitable maxim that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent. In Summer v. Seaton, 47 N. J. Eq. (2 Dick.) 103, 111, Vice-Chancellor Pitney, quoting from Chancellor Kent, applies this maxim as follows:

“There is no principle better established’ in this court, nor one founded on more solid foundations of equity and public utility, than that which declares that if one man, knowingly, though he does it passively, by looking on, suffers another to purchase ox expend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.”

In the present case it is manifest that defendant erected his warehouse in the full belief that he would be privileged to use the alley in question. The warehouse is located at the end of the alley and is so constructed that it can only be used from the alley. In observing the building so located and constructed, complainant could not fail to know that it was designed for use from the alley; he was employed to work on the building, and his knowledge in this respect cannot be doubted.

Under such circumstances it was clearly his conscientious duty to apprise defendant of his objection to the use of the alley, and his failure to do so should be operative to deny to him the relief now sought from a court of conscience for the protection of the legal right, the invasion of which his passive acquiescence necessarily encouraged. This passive acquiescence upon the part of complainant in the expenditures so made by defendant, with special reference to the use of the alley, has undoubtedly been measurably instrumental in the' consummation of the present conditions, and in that view it is not in accordance with equitable principles to now extend to complainant the aid of this court in the enforcement against defendant of the legal rights here asserted. It is entirely immaterial that the expenditures were being made by defendant on his own land; the warehouse which defendant was erecting 'was being erected in a manner that made it apparent to anyone that its contemplated use was through the alley in question. Complainant remained silent when duty, candor and fairness required him to speak, and his silence appropriately and necessarily gave encouragement to defendant in the course he was pursuing; complainant not only remained silent but actively contributed to defendant’s expenditures by performing labor upon the building, at a time when the building was so far advanced in its construction that complainant could not fail to fully appreciate that the building was being constructed for the special purpose of utilizing the alley as a means, of access to New York avenue. The acquiescence of complainant in the use of the alley by defendant for several years prior to the time the warehouse was erected, also naturally tended to lead defendant to the belief, which he clearty entertained, that the alley could be used by him.

I will advise an order denying equitable relief.